Consodine, J.c.c. (temporarily assigned).
The problems involved in this matrimonial action are two.
Is a corespondent, who under oath contests the charge against her, entitled to a dismissal with prejudice where plaintiff at trial voluntarily dismisses the adultery count of the divorce complaint and proceeds on the extreme cruelty count to a judgment nisi ?
Can a successful divorce litigant, on the eighty-fifth day of the nisi period, without any cause shown and solely because "she had changed her mind," elect to withdraw her judgment nisi granted for extreme cruelty and then seek separate maintenance on a dismissed count in adultery?
The basic pleadings in this matter are: 1) complaint for divorce on the ground of extreme cruelty; 2) answer; 3) amended complaint adding a second count for divorce on adultery; 4) counterclaim for divorce on extreme cruelty; 5) answer to amended complaint; 6) answer to counterclaim; 7) verified petition, order and verified answer of intervening corespondent to adultery count of amended complaint; 8) judgment nisi on first count of amended complaint, second count and counterclaim having been dismissed at the beginning of trial.
Eighty-five days after the judgment nisi, plaintiff by substituted attorney filed an affidavit stating that she and defendant had condoned the matrimonial offenses on several occasions subsequent to the judgment nisi, and that she desired to vacate that judgment. She asked for an order to the latter effect. The court stayed the entry of final decree and then required plaintiff to make a choice that would result in a hearing on the condonation denied by defendant's affidavit, or a decision on her claimed right to vacate the nisi.
Plaintiff, by affidavits, then iterated her charge of condonation but elected to withdraw the judgment nisi for the stated reason that she had changed her mind. She maintained further willingness to defend on the counterclaim and requested amendment of the relief sought on the dismissed adultery count, from divorce to separate maintenance. She then formally moved "to amend the original and amended complaint * * * to change the cause of action from one for divorce to one for separate maintenance; and for an order vacating the judgment nisi."
Plaintiff labors under several misapprehensions. She argues that the vacation of the judgment nisi at her request and without reason places her back "in the status we were the day before the hearing and then we will defend the counterclaim." The vacation of the nisi would do no such thing. It would eliminate the first count in extreme cruelty, because the vacation, if granted, would effect a dismissal of that count, with prejudice. Iovino v. Iovino, 58 N.J. Super. 138 (App. Div. 1959).
On the adultery count the named corespondent, as alleged particeps criminis, filed a verified petition of denial and obtained an order permitting intervention. She then filed a verified answer denying the charge and prayed dismissal of the complaint as against her. On the day of trial she was properly in court and in a position adverse to plaintiff.
At the beginning of trial plaintiff dismissed the adultery count and proceeded to judgment nisi on the ground of extreme cruelty. There was a simultaneous withdrawal of the
counterclaim. The corespondent took no action on her pleadings.
Historically, this is a court of equity regardless of the canonical incubator in which matrimonial matters, as we know them, rested for centuries. Our jurisdiction is purely statutory. Linnekogel v. Linnekogel, 95 N.J. Eq. 265 (E. & A. 1923). We have no matrimonial or ecclesiastical common law, although we may adopt a rule of the latter in a given case. 10 N.J. Practice (Herr, Marriage, Divorce and Separation, 1963 ed.), §§ 2, 3. Without doubt we apply equitable principles which are still the heartbeat of conscience in this area, ...