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Tracey v. Tracey

Decided: October 16, 1961.

DOROTHY TRACEY, PLAINTIFF-RESPONDENT,
v.
DANIEL J. TRACEY, JR., DEFENDANT-APPELLANT



Conford, Freund and Labrecque. The opinion of the court was delivered by Freund, J.A.D.

Freund

Daniel J. Tracey, Jr. appeals from an order of the Juvenile and Domestic Relations Court of Union County dated November 9, 1960 which directs him to continue to comply with a previous order made on January 8, 1960 and to pay the arrearages thereunder. The January order directed, inter alia , that he pay his wife, the plaintiff, Dorothy, $50 weekly for the support of herself and their daughter, Danise, now ten years old. The defendant was to have all services and meals at home and the child was to sleep by herself. He was also to pay the house payments and utilities. The orders contain other provisions not immediately pertinent.

The defendant acted as attorney pro se at the hearings before the trial court and initially on this appeal, but an attorney filed a supplemental brief and appendix and argued the appeal. The plaintiff was represented by counsel at the trial, but she has not appeared or filed any brief on this appeal. Both at the trial and appellate level, the proceeding has been conducted with an unwarranted degree of

informality. Rules relating to the preparation of the record have not been observed. Since the appeal involves a review of two separate proceedings, the first of which was not stenographically reported, a statement in lieu of record signed by the trial judge should have been filed. R.R. 1:6-3.

The substantial legal issues involved are: (1) whether there was prejudicial procedural error in the trial court; and (2) whether the Juvenile and Domestic Relations Court has jurisdiction to grant relief to a wife for support, under the claim of desertion, pursuant to N.J.S. 2A:4-18(e), where the plaintiff has constructively deserted the defendant by her refusal to have sexual relations with him.

The parties were married in 1950. Their daughter suffers from hearing and speech impediments requiring therapy and mechanical aid. The parties reside in the same three-bedroom household in Elizabeth, N.J. Plaintiff's mother also resides there and performs household duties for which she is paid by her daughter. The defendant earns about $11,000 per year. The plaintiff is also employed and earns about $4,800 per year. Without detailing the testimony, it is sufficient to state that the parties are unhappily married. Although they live in the same household, they have apparently not been cohabiting as husband and wife for some time. Plaintiff slept with her daughter and later with her mother.

The plaintiff filed an informal complaint on June 19, 1959. Her supporting affidavit, filed on June 22, 1959, recites that her husband violated N.J.S. 2A:4-1 et seq. , in that "for the past several years the defendant, whenever the spirit moved him, refused to give her any money." The complaint is not as detailed and specific as it should have been, either as to facts or the specific statutory provision relied upon. R.R. 6:4-1; Hewitt v. Hollahan , 56 N.J. Super. 372, 378 (App. Div. 1959). Nevertheless, by the time of the first hearing, the defendant was sufficiently apprised of the plaintiff's charge. Although he was not, technically, represented by an attorney, he was accompanied

by one. He, by then, must have known that the complaint was based upon the provisions of N.J.S. 2A:4-18(e), which empowers the Juvenile and Domestic Relations Court to hear and determine in a summary manner a dispute or complaint, "where a husband or father deserts his wife or child even though they continue to live in the same household, in which case the court may order adequate support of his wife, child or family."

The first hearing was held on January 8, 1960, previously scheduled hearings having been adjourned. The plaintiff was represented by counsel. The defendant was accompanied by John T. Glennon, Esq., a member of the bar. In an affidavit, the latter stated that as a friend of both parties he "was present more in the capacity of ' amicus curiae ,' rather than as counsel for the defendant, in an endeavor to assist the court in aiding the parties to adjust their domestic differences." He avers, and it is undenied, that no testimony was taken; that the court received merely a verbal summary of the facts and contentions of the respective parties and then directed that the January order previously mentioned be entered.

Defendant is correct in his contention that it was improper to make the January order, in the absence of consent, without the taking of testimony to establish the cause of action. The statements of counsel were not the substitute for testimony in the absence of consent to the entry of the order. Hyman v. Muller , 1 N.J. 124, 129 (1948); Test v. Test , 131 N.J. Eq. 197, 200 (E. & A. 1942).

A further hearing of the case was held on November 9, 1960. How this came about is not clear; but on this occasion, a transcript of the proceeding was made. The plaintiff was represented by an attorney and the defendant appeared pro se. Both parties were sworn and examined. The plaintiff complained that the defendant was not regularly making the $50 ...


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