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X v. Y

Decided: October 8, 1968.


Hartman, J.c.c. (temporarily assigned).


In 1956 defendant (Y) deserted plaintiff wife (X). In 1961 she gave birth to an illegitimate child. She now seeks an absolute divorce based on the husband's desertion, a cause of action which had accrued to her in 1958. The question to be determined is whether the trial court should, sua sponte, apply the doctrine of recrimination as a bar to her action and dismiss her complaint. I have decided that the factual circumstances present here require the exercise of judicial discretion to disregard her adultery and to grant the divorce.

The testimony in this case establishes the following facts: The parties were married in Montclair, N.J., on February 7, 1948. Plaintiff was then, and has continued to be, a bona fide resident of this state. Four children were born of that marriage: A, 19 and now married; B, 18; C, 15, and D, 13; except for A, they have been in her continuous custody since the date of her marriage. The wife was deserted by her husband on September 1, 1956, and this desertion was a willful, continued and obstinate one. Shortly after the desertion she filed a complaint in the Juvenile and Domestic Relations Court of Essex County seeking support which was granted to her. The record of that court's proceedings reflects numerous defaults, contempt motions and continuing arrearages. On September 1, 1958 there accrued to plaintiff a cause of action for divorce which she did not pursue. Her explanation satisfies me that she was ignorant of divorce proceedings, was working hard to support her family, had no one to advise her, and gave no thought to it. She has had only a grammar school education.

Defendant's desertion of his wife and family was complete. From the day he left them he made no attempt to see or communicate with his children. Anniversaries, birthdays, holidays, and Father's days have come and passed without a single token of his concern or his very existence. Yet, he

remained until recently an employee in the sanitation department of an Essex County Borough. A, the oldest child, was seven when her father left; she barely remembers him. The younger three children have no recollection of him at all.

Sometime in 1960 plaintiff became acquainted with a man (Z). Z in 1956, while a member of the armed forces, met and married a girl in South Carolina. Three months later she deserted him. There were no children of that union. In any event, at the time he became acquainted with plaintiff he found her home to be barely and inadequately furnished. Z, although an unlettered man, has always been steadily employed. The lack of furniture in the X/Y home was soon remedied by him. The children no longer sat on orange crates. He furnished their home; the children took to him; he encouraged them to do their school homework; he brought the "family" into his church where he is a trustee and the treasurer; plaintiff became a singer in the choir, and the family became regular attendants in his church. In 1961 plaintiff bore a child by Z. This child has been raised with the X/Y children.

The oldest child, A, corroborated Z's role as a father to this family and to the excellent relationship between the children and Z. He bought their food and clothing, pushed them "hard" to study, disciplined them as they were growing up, and saw to it that they attended church services. The pastor of their church was shocked on learning during these proceedings that the X/Z relationship was not that of a legal marriage. He had always thought of them as married, of fine character, with high moral standards; regular church goers and active in its affairs.

I now come to a rather unusual aspect of the factual complex of this case. During a routine visit of the X/Y home, apparently connected with Y's support order in the Juvenile and Domestic Relations court, a probation officer learned of the existence of the fifth child in that household. As a result of this officer's expressed views Z left the home. Faced with the need to find quarters for himself, and at the same

time to continue his support of the X/Y family, he decided to buy a piece of property. Legal advice pointed out the risk of taking title in his own name since it would create a possible dower interest in the wife he still had in South Carolina. If he took title in X's name there was a similar risk in creating a possible curtesy interest in Y. He sought out Y, told him he wanted to take title in X and asked him to release any curtesy interest in that property in view of the fact that he, Z, carried the major support burden for Y's children. Y agreed, and Z then purchased a three-family home in Newark. He set up quarters for himself and X's elderly mother in the first-floor apartment; X and the five children moved into the apartment on the second floor, and the third-floor apartment was rented out. The property is still tenanted in this fashion and Z is paying better than $173 a month towards the mortgage and real estate taxes. The title stands in the name of X, and Y's release of his curtesy interest is duly recorded.

Z, hoping to be free of his deserting spouse so that he could marry X, filed a complaint for divorce against his wife on the ground of desertion (Docket M -6398-66). On the same date, May 10, 1967, X filed her action for divorce against her husband. In the Z case service was effected on his wife in South Carolina. Failing to answer or otherwise appear, a default was entered against her. Between the first and the continued trial date in his case, Mrs. Z passed away. Her death was proved and duly noted on the record. The action having thus abated, Z's complaint was dismissed. He is now free to marry.

In the X/Y case the defendant husband was served personally in this State. He filed an answer denying the desertion. Curiously, the answer contained no separate defense of recrimination despite the fact that he knew of, or had reason to inquire about, X's relationship to Z. Incidentally, a case worker for the Essex County Welfare Board induced a woman, T, to file a ...

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