Decided: March 16, 1964.
GEORGE A. WELLS, PLAINTIFF-APPELLANT,
MATTIE BELLE ROBINSON WELLS, DEFENDANT-RESPONDENT
For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None.
[41 NJ Page 595]
We are generally in accord with the dissenting opinion of Judge Gaulkin, 79 N.J. Super. 388, 395 (App. Div. 1963).
The sole question presented is whether the trial court had the power to raise the issue of recrimination and whether under the facts of this case it should have raised that issue. Assuming that a court ordinarily has discretionary power to raise, sua sponte, a recriminatory bar to plaintiff's cause of action for divorce, we agree that the judge should not have exercised that discretion under the factual complex here present.
The judgment of the Appellate Division is accordingly reversed and entry of judgment of divorce in favor of plaintiff is directed.