Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
[84 NJSuper Page 359] Plaintiff appeals from a Chancery Division order of May 3, 1963, setting aside the judgment nisi entered in his favor on October 25, 1960 and the final judgment of divorce entered June 13, 1962, and ordering him to pay defendant's attorney a $500 counsel fee. Plaintiff had
meanwhile remarried on August 25, 1962. Thus, the effect of the order, granted as a result of proceedings initiated by defendant, was to reinstate the marriage between the parties and to nullify plaintiff's second marriage.
Resolution of the legal issues requires a somewhat detailed account of the facts leading up to this appeal. On May 4, 1960 plaintiff filed his complaint for divorce, alleging that defendant had deserted him in October 1957. Defendant was personally served with process, and not having answered or otherwise moved or defended, the clerk was requested to enter her default and the case was approved for trial. The matter was heard as an uncontested action and resulted in a judgment nisi dated October 25, 1960, whereby custody of the children was awarded to plaintiff.
The judgment nisi would have become final after the expiration of three months from its entry, N.J.S. 2A:34-19; R.R. 4:98-7 -- i.e. , January 26, 1961. However, on January 24 defendant filed a verified petition with the trial judge to vacate the judgment nisi and permit the interposing of a defense. Defendant alleged that after she had been served plaintiff told her she need not retain the services of an attorney since he did not intend to proceed with his divorce action; further, that it was plaintiff who had deserted her, and that she was ready and able to prove he was not entitled to a divorce because they had been sleeping together daily, from July to September 1960, at 1018 Bloomfield Street, Hoboken, and had engaged in sexual intercourse at 893 Pavonia Avenue, Jersey City, during the period October 20, 1960 to January 21, 1961. On the basis of this petition the trial judge immediately entered an order directing plaintiff to show cause on February 10, 1961 why an order should not be issued vacating the judgment nisi and dismissing the proceedings. The order also directed that the proceedings be stayed and no final judgment entered until further order of the court.
Plaintiff's answering affidavit denied that he had tricked defendant into defaulting; renewed the assertions upon which the judgment nisi had been granted, and alleged that defendant had given birth to an illegitimate child on October 31, 1959, naming one Matthew May as the father. She had borne a second illegitimate child on August 21, 1960, but it died shortly after birth. Among other things, plaintiff charged his wife with being an habitual drunkard and creating disturbances when under the influence, and also with associating with convicted criminals. He said she had threatened on many occasions to make trouble for him and had waited until the last minute to attack the judgment nisi and reopen the case, her only purpose being to force him to permit her to visit with the children.
The result of all this was that on April 21, 1961 the trial judge entered an order vacating the judgment nisi and granting permission for the filing of an amended complaint and an answer thereto. Plaintiff then filed an amended complaint, this time seeking a divorce on the ground of adultery. He alleged that he had not had access to or sexual intercourse with defendant from the time she left him in October 1957; that as a result of adultery with some person unknown to him, she had given birth to an illegitimate child on October 31, 1959, and that in the months of August 1958 through May 1959 she had committed adultery with a Matthew May. Defendant's answer denied the adultery. She alleged, further, that plaintiff condoned the alleged acts of adultery in that, with knowledge thereof and having discussed them with her, he continued to cohabit with her from June 1960 until May 1961 at 1018 Bloomfield Street, Hoboken, 2805 Summit Avenue, Union City, and 893 Pavonia Avenue, Jersey City, N.J.
There was no further development in the cause until June 11, 1962, when the parties and their counsel appeared in court. The case was called just before the luncheon recess, at which time counsel for defendant announced in the presence of his client that she did not desire to contest the action, wanted to
withdraw her answer, and agreed that the judgment nisi be reinstated, except that it was now to afford her certain specified rights of visitation which had been agreed upon. The court then recessed for lunch. Following the recess defendant took the stand, testified that she was willing to have the judgment nisi reinstated, and consented to the custody and visitation arrangements. In the course of her direct examination the following transpired:
"THE COURT: Anybody making you do this?
THE WITNESS: No, nobody is making me. I have no alternative. Frankly, I don't want a divorce. My husband I love more than anything in the world.
Q. Mrs. Pavlicka, didn't you phone me yourself? A. Yes, I did. I am sorry, Mr. Saunders [defendant's attorney].
Q. And you asked me to tell the court and take this procedure? A. Yes, and I deserve it.
Q. And haven't you been after me to get this over for you? A. Yes, I'm sorry. I did desert my husband. I did everything to him, everything that he says.
Q. You arranged the appointment today? A. Yes, I did."
Plaintiff then took the stand, agreed to the visitation arrangements, and stated he understood that the amended complaint and defendant's answer were being dismissed.
An order was then and there made, dated June 11, dismissing the amended complaint and the answer thereto, setting aside the order which had vacated the judgment nisi and reinstating that judgment, awarding plaintiff custody of the infant children but with the agreed-upon visitation rights in defendant, and directing plaintiff to pay defendant or her attorney a $250 counsel fee. Final judgment of divorce was entered two days later, on June 13.
As stated, plaintiff remarried on August 25, 1962. The Pavlicka children had for some time been cared for by plaintiff's mother and two sisters -- an arrangement agreeable to defendant. Apparently embittered by plaintiff's remarriage and the desire of his new wife to have the children live with them, defendant moved to have the ...