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Gerard v. Distefano

Decided: June 12, 1964.

JOSEPH S. GERARD, PLAINTIFF,
v.
PAOLA DISTEFANO, OTHERWISE PAOLA GERARD, DEFENDANT



Nimmo, J.s.c.

Nimmo

This is an action brought by plaintiff Joseph S. Gerard, wherein he seeks to have his marriage to defendant Paola Distefano Gerard declared a nullity.

The parties to this action were married on October 13, 1962. After their marriage and a two-week honeymoon in Florida, the couple resided together with plaintiff's mother in Jersey City until May 12, 1963, at which time defendant moved out. The events leading up to the final separation, as testified to by the parties at the trial, were contradictory and unclear. Defendant testified that she was compelled to leave the marital abode because of alleged cruel acts on the part of plaintiff and his mother. Defendant in no way substantiated or corroborated these charges, and this court completely disregards them.

Plaintiff alleged in his complaint, and testified at the trial, that defendant at all times refused to consummate

the marriage. He alleges that at no time, even during the honeymoon period, did his wife submit to sexual intercourse, although he made repeated requests and attempts. The defendant denied these allegations and maintained that the marriage had been consummated many times. The first count of plaintiff's complaint is based upon defendant's fraud in failing to consummate the marriage. The only proof placed before the court on this count was plaintiff's testimony, as set out above. Fraud as a fact will never be presumed, but must be clearly and convincingly proved by the party who asserts it. Connelly v. Weisfield , 142 N.J. Eq. 406 (E. & A. 1948); Minter v. Bendix Aviation Co. , 26 N.J. Super. 268 (App. Div. 1953); Wasserman v. Franklin Trust Co. , 142 N.J. Eq. 352 (Ch. Div. 1948). In the absence of additional evidence, plaintiff has failed to meet the burden of proof necessary to justify this court in granting an annulment on the grounds of fraud.

The second and third counts of plaintiff's amended complaint bring the real issues before the court. Plaintiff alleges that defendant fraudulently withheld from his knowledge the fact that she had previously been married and divorced and, furthermore, that the divorce obtained by her former husband was procured by means of a fraud perpetrated upon the Alabama courts and is therefore void.

Defendant Paola had previously been married to her first cousin, one Alfred Cicchetti, on November 18, 1960. They cohabited for about 17 months and then separated because they could not get along.

Paola and Cicchetti were referred to a New York lawyer, who would make arrangements for them to procure an Alabama divorce. As a result of the meeting with the New York lawyer, the necessary answer and waiver was signed by Paola, and on June 6, 1962 Cicchetti made a one-day trip to Alabama. On June 7, 1962 a final decree of divorce was entered in favor of Cicchetti in the Geneva County Superior Court of the State of Alabama in Equity on the grounds of abandonment.

These facts are not in dispute. However, plaintiff alleges that he never had any knowledge of defendant's prior marriage and divorce until April 1963. Defendant testified that plaintiff had full knowledge of all the facts regarding her prior marriage and divorce. The trial was void of any testimony, other than that of the party witnesses, as to whether plaintiff had knowledge of the prior marriage and divorce.

On several occasions both before and after their marriage Paola and Joseph Gerard visited the home of Cicchetti. Since Cicchetti was defendant's first cousin, plaintiff would not be put upon notice to inquire as to the relationship of Cicchetti and Paola since he would not expect them to have been married. Furthermore, if plaintiff knew of the prior relationship between Paola and Cicchetti, it is not reasonable to expect that he would make social calls upon his wife's former husband.

In evaluating the testimony of the parties to this action, and also taking into consideration the conduct of the parties in relation to Cicchetti, this court finds as a fact that plaintiff had no knowledge of ...


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