Sullivan, Lewis and Kolovsky. Kolovsky, J.A.D. (concurring).
Defendant appeals from a Chancery Division judgment awarding her husband a divorce for simple desertion.
Following oral argument of the appeal, we requested the trial court to file specific findings of fact, R.R. 4:53-1, supplementing the letter opinion which had been filed prior to the entry of the judgment. Counsel for the respective parties have submitted memoranda directed to the "Findings of Fact and Conclusions of Law" so filed by the trial court
(hereinafter referred to as the trial court's "supplemental opinion").
The parties were married on September 19, 1931. They have three children. The older son, Francis, and the daughter, Joyce, are married and maintain homes of their own. The younger son lives with the mother in a house at 49 Finlay Place, Newark, owned by the husband and wife as tenants by the entirety.
Beginning in about 1947 the matrimonial seas became stormy. The husband blames the wife's drinking habits; she says the fault was his. Police were called by the wife on a number of occasions. In 1953 the husband remained away for some three months; he says the wife chased him out of the house. In the latter part of 1954 the husband was away for some five or six months.
On February 6, 1956 the wife filed a three-count complaint against the husband in the Chancery Division. The first count sought separate maintenance, charging the husband with cruelty and alleging that he left the matrimonial home on January 30, 1956. The second count sought to establish a half-interest in the family automobile; the third sought recovery of $550 the husband allegedly misappropriated. The proceedings were dismissed on March 9, 1956 on the wife's application, the parties having resumed cohabitation.
Early in July 1957 the husband and wife, their daughter, who was then unmarried, and the younger son drove to Florida for a vacation. They returned to their home at the end of the month.
On August 1, 1957 the husband walked over to the nearby apartment of his elder son. He has not lived at the Finlay Street house since. Whether this was because the wife prevented him from returning or because he did not want to return was a contested issue at the trial of this action.
However, it is undisputed that on January 21, 1958 the wife filed a complaint for support in the Juvenile and Domestic Relations Court of Essex County, charging that the husband, then residing on Sanford Avenue in Newark,
"* * * altho capable to do so has for the past several weeks refused and failed to provide adequate support and maintenance of his family consisting of myself, and one minor child to wit: Eugene -- 9 yrs contrary to 'An Act concerning the Juvenile and Domestic Relations Court,' Revised Statutes, 1951 Title 2A:4-41, effective January 1, 1952, and the supplements thereto and amendments thereof."
(At the trial of the present action, the husband testified that he had been paying the wife $40 per week since their separation on August 1, 1957, but had stopped the payments because she had refused to let him obtain his set of tools which were in the cellar of the house.)
The complaint for support was tried in the Juvenile and Domestic Relations Court on February 3, 1958 and resulted in an order in which the court stated:
"The evidence being closed, I did decide that the complaint be sustained. The defendant be ordered to pay $40.00 a week thru the probation department for the support of his family. The defendant to also pay medical expenses and have child visitations on alternating Saturdays and Sundays, from the date of this my order."
Further orders were entered by the Juvenile and Domestic Relations Court on October 1, 1958 and March 16, 1960, following references of the matter to the court by the probation department because of disputes between the husband and wife relating to, among other things, the husband's tool set, visitation rights and payment of the wife's medical bills. The October 1, 1958 order provided for a continuance of the prior order; the March 16, 1960 order increased the support payments to $42 per week. The latter order remained in effect until early 1964 when it was superseded by an order entered on February 28, 1964 in the divorce proceedings which the husband had instituted in ...