On appeal from a judgment of the Superior Court whose opinion is reported at 91 N.J. Super. 333.
For affirmance -- Chief Justice Weintraub and Justices Francis, Proctor, Schettino and Haneman. For reversal -- Justice Goldmann. Goldmann, J. (temporarily assigned) (dissenting).
The judgment is affirmed for the reasons expressed in the opinion of the Appellate Division.
GOLDMANN, J. (temporarily assigned) (dissenting). The single question presented for resolution on this certified appeal is whether plaintiff wife, who prevailed in her divorce action may in the circumstances of this case, at will and without advancing any cause whatever, have her judgment nisi vacated. The Chancery Division denied that relief, 89 N.J. Super. 568 (1965); the Appellate Division
reversed the determination on appeal, 91 N.J. Super. 333 (1966). In light of the factual setting presented, I would reverse and reinstate the Chancery Division judgment.
The parties were married in 1930. Two children were born; at the time of the hearing the son was 31 years old and emancipated, the daughter 17 and attending high school. Defendant is a physician and surgeon, plaintiff a housewife. The marriage was not a happy one, at least after the first ten years. It deteriorated to the point where plaintiff instituted a separate maintenance action in September 1962 (Docket M-203-62). At that time she and her daughter moved to California, remaining there until mid-July 1963, when they returned to New Jersey. The maintenance action was dismissed in October 1963.
In August 1964 plaintiff filed her complaint for divorce on the ground of extreme cruelty. Defendant answered, denying every allegation of cruelty and reserving the right to file a counterclaim. In regular course plaintiff obtained a pendente lite order for the support and maintenance of herself and the daughter, and for counsel fees. Defendant's counterclaim for divorce on the ground of extreme cruelty followed. Plaintiff at once filed an amended complaint, adding a count alleging that defendant had committed adultery with a Mrs. X, who was then being sued by her husband for divorce on the ground of desertion. (Mr. X obtained his final judgment of divorce in July 1965.) Defendant answered, again denying all charges. Mrs. X was admitted as a party defendant and filed an answer denying the alleged adultery. The action proceeded to hearing on June 8, 1965 after plaintiff had answered the counterclaim and denied its allegations of cruelty.
Plaintiff chose to present her case on the extreme cruelty count only, offering no proof on the adultery charge. Her complaint had described defendant's cruelty over a 23-year
period in a lengthy, generally phrased paragraph, followed by some 50 paragraphs specifically describing each of the acts relied upon. At the trial, however, the judge directed counsel to deal with the more recent acts, beginning with the one in early 1962 (complaint, paragraph (bb)). After plaintiff had rested defense counsel stated he had been instructed to withdraw the counterclaim, and accordingly moved its dismissal. There being no objection, the motion was granted, the judge then announcing he was satisfied that a case of extreme cruelty had been fully proved and that the adultery count would be dismissed. On June 25, 1965 he entered judgment nisi in plaintiff's favor. She was awarded custody of the daughter, subject to defendant's reasonable visitation rights. The matters of maintenance and support, as well as counsel fees and costs, were reserved until further order. The adultery count was dismissed.
On June 30 the trial judge wrote counsel he was postponing final determination of maintenance and support until after final judgment and sale of the marital home, but would meanwhile allow plaintiff $75 a week and $25 for support of the daughter. Plaintiff's then counsel was granted a $1,250 fee, including the pendente lite allowance, together with taxed costs.
On September 21, 1965, four days before the nisi would have become final, plaintiff, by her present (substituted) attorney, filed an affidavit asserting that she had engaged in sexual relations with defendant several times since the trial, one such occasion being on August 18, 1965. She stated that she now desired to vacate the judgment nisi. An order to show cause issued, staying entry of final judgment and setting the matter down for argument on October 1, later continued to October 15, 1965.
In the meantime, defendant filed an affidavit flatly denying plaintiff's claim of sexual relations and alleging that her attempt to reopen the proceedings was "malicious and deliberate with the intent to harass and bedevil me." He was prepared to submit to any examination to the end that the truth
be ascertained. His answering affidavit revealed that an order amending the judgment nisi to provide for the payments mentioned in the trial judge's June 30 letter had been submitted to plaintiff's counsel, but plaintiff would not authorize him to consent to the form of the order. Defendant had nonetheless continued to make the payments called for by the pendente lite order.
In a reply affidavit filed the day before the October 15 hearing plaintiff repeated her claim of having had sexual relations with defendant since the trial, and specifically on August 18. She stated:
"I have decided to withdraw the judgment nisi that was issued to me dated June 25, 1965, and I am willing to appear to defend the counterclaim filed herein, and if my application is granted, I will ask my attorney to make application to amend my complaint from divorce to separate maintenance."
At the very start of the October 15 hearing the trial judge announced that the subject matter was such that he would not decide it on affidavits but wanted to hear testimony. Plaintiff's counsel argued that his client could, as a matter of right, change her mind. When the judge pointed out that her affidavit alleged sexual relations with defendant after entry of the judgment nisi, her counsel said he would "withdraw that part of it," and "I will consent to expunging the affidavit and just have her say that she changed her mind, and she does not want her divorce." The judge allowed the affidavit to be expunged, adding that plaintiff "can take whatever steps are necessary to avail herself of a woman's right to change her mind. It has to be done by some sort of pleadings."
Plaintiff then filed an affidavit stating she was withdrawing her allegation of sexual relations with defendant and was proceeding on her application to vacate the nisi "for the reason that I have changed my mind and do not wish the divorce." There was a further hearing on October 25, 1965. Plaintiff's attorney had prepared an order setting aside the
nisi and submitted it to defense counsel for his consent. The latter objected to the order, stating that the matter had never been argued. The trial judge thereupon directed the court reporter to prepare a transcript of the October 15 hearing. The matter was again heard on November 18, on plaintiff's motion to amend so as to change the cause of action from divorce to separate maintenance, and for an order vacating the judgment nisi. Defendant, in turn, moved to permit entry of a final judgment of divorce.
The trial judge delivered his oral conclusions on November 29, 1965, later formalized in the opinion published in 89 N.J. Super. 568. He held that plaintiff was not entitled as a matter of right to refuse the judgment nisi and have it vacated without a showing of "sufficient cause," as required by R.R. 4:98-7. She had failed to establish such cause. After reviewing the public policy considerations involved and some of the cases, the judge concluded that
"Nothing but reconciliation or other sufficient cause should now bail her out. To do otherwise is to take a path fraught with the possibility of battery or worse, adultery, illegitimacy, foreign divorce decree, ill effect on children of the union, to mention but a few." (at page 576)
He denied plaintiff's motion to vacate the nisi and sustained the judgment on the extreme cruelty count. He directed that the nisi be amended to make the dismissal of the adultery count with prejudice. The counterclaim was to remain dismissed without prejudice. The claim of condonation, as to which the burden of proof rested on plaintiff, needed no further action than the entry of an order to the effect that the claim was withdrawn. Finally, he denied her motion to amend so as to change the cause of action from divorce to separate maintenance. Conformable orders were entered December 8, 1965.
On appeal the Appellate Division affirmed the trial judge's determinations, with one exception. 91 N.J. Super. 333. It could not agree with his holding that a plaintiff who had obtained
a nisi could not at will abrogate that judgment upon signifying such intent to the trial court prior to the running of the three-month period specified in the statute, N.J.S. 2A:34-19. It adhered to the decisions in Ferrari v. Ferrari, 6 N.J. Super. 384 (App. Div. 1950), and Iovino v. Iovino, 58 N.J. Super. 138 (App. Div. 1959). The court was of the opinion that the State's interest in the maintenance of the matrimonial relationship, repeatedly stressed as fundamental in our public policy, "constitutes in and of itself the 'sufficient cause' requisite under R.R. 4:98-7 to abate the judgment nisi when that step is sought by the successful party." (at page 335) The matter is now before us on certification granted, 48 N.J. 144 (1966).
Our present judgment nisi practice originated in the 1907 revision of the Divorce Act, L. 1907, c. 216, ...