Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
Pursuant to leave granted, defendant appeals from a Chancery Division order which granted plaintiff separate maintenance pendente lite and counsel fees and costs, provided for divided custody of the two children of the marriage, and denied various applications made by defendant and described hereinafter. We stayed the order pending appeal.
On May 20, 1963 plaintiff filed a verified complaint in three counts, the first two seeking separate maintenance on the grounds of constructive abandonment (cruelty) and consensual
separation, and the third seeking an accounting of certain bank accounts, securities and other assets. Plaintiff also demanded judgment awarding her custody of the two children, Michael, then 11 years old, and Robert, then 9. The parties and their sons all resided in the marital home in South Orange, and continued to do so during the proceedings which followed. The complaint was accompanied by a notice of motion seeking support, custody, counsel fees and costs pendente lite. Defendant answered, denying all the material allegations of the first two counts, and he also counter-claimed for the return of certain silverware which he claimed plaintiff had unlawfully removed from the house.
Thereafter, plaintiff's deposition was taken on November 4, at which time she was questioned extensively regarding the allegations contained in her verified complaint and supplementary affidavits. This discovery furnished the basis for defendant's subsequent motion to dismiss the complaint on the ground of unclean hands.
On November 6, 1963 the trial judge dictated his conclusions in open court, counsel (we are told) not then being present. He said, "I think the wife is entitled at this stage to separate maintenance, but in the interests of the children I will allow this separate maintenance only in the household in which the husband and wife are now living." He granted custody of the younger boy to the father, who could, if he wished, have the child taken care of by the mother or by his relatives. Custody of the older boy was awarded the mother, that custody to be "in the present family residence." The trial judge said there was little question but that plaintiff drank to excess; however, there was not sufficient before the court to prevent the division of custody. He further stated that defendant was to pay all expenses of the household. These are detailed in the order later entered and need not be repeated here. Finally, the judge referred counsel to the report of the probation officer dated October 30, 1963. This was the first notice counsel had of the fact that the court had directed that a report be prepared, or that it had been filed.
Based on the discovery of plaintiff's alleged "unclean hands" and on claimed errors and irregularities in the trial judge's oral opinion, defendant filed an omnibus motion seeking the following relief:
(a) To dismiss the complaint for unclean hands, or, at the least, permit the testimony in open court of two witnesses who would refute plaintiff's testimony and affidavits;
(b) Alternatively, and in connection with plaintiff's pendente lite application, to have the trial judge state on the record his conversations with the children, the school principal and the probation officer; to have the probation report expunged, or for leave to examine the probation officer in open court on his report and to rebut his testimony; and, further, for leave to examine the children, principal and probation officer in open court regarding their conversations with the trial judge;
(c) To have the court's oral opinion awarding plaintiff relief pendente lite set aside because based upon erroneously considered evidence and upon plaintiff's false affidavits; and
(d) As a lesser alternative to (c), to have the trial judge reconsider his oral opinion awarding pendente lite relief.
The motion was accompanied by a number of affidavits. One of these, by Laurence B. Orloff of the firm of Greene & Orloff, representing defendant, quoted and juxtaposed excerpts from plaintiff's depositions (not previously a part of the evidential record before the court), affidavits on file, and testimony given in a prior police court hearing. Another affidavit was that of Israel B. Greene, of the same firm, stating that after he learned of the probation report, he phoned the probation officer to inquire as to the source of the statements contained therein. The officer informed him that the report was based solely upon what the children had told him on the way from the school to the trial judge's chambers, and that he had not talked to anyone else, made no other investigation, and had not visited the home of the parties. The affidavit goes on to say that the officer had informed the attorney that he had given the trial judge an oral report when he brought the children to chambers, and had not submitted his formal report until October 30, 1963.
After a further exchange of affidavits, defendant's motion came on for hearing on December 20, 1963. The trial judge reserved decision and later, on January 30, 1964, filed a letter opinion in which he denied most of defendant's omnibus motion. Commenting on the Orloff affidavit, the judge said that it was actually a brief and could be treated as such despite the jurat; he would not construe it as pertaining to the substance of the case. However, the Greene affidavit would have to be considered as dealing with a matter of substance which ...