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Davis v. Davis

Decided: October 25, 1968.

CLARE DAVIS, PLAINTIFF-APPELLANT,
v.
ROBERT DAVIS, DEFENDANT-RESPONDENT



Conford, Kilkenny and Leonard. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

Plaintiff appeals from a judgment of the Bergen County Juvenile and Domestic Relations Court which dismissed her complaint for support referred to it by the Family Court of New York under the Reciprocal Enforcement of Support Act (N.J.S. 2 A:4-30.1 to 30.23).

The parties, wife and husband, were married on January 9, 1960. In March or April 1965 defendant left plaintiff and they have been living separately ever since. Defendant has provided no support for plaintiff since his departure. Plaintiff now lives in New York City and defendant in Hackensack.

On January 10, 1967 plaintiff filed a verified petition for support against defendant with the Family Court of New York, pursuant to the Uniform Support of Dependents Law of that state. She appeared before that court and testified, albeit very generally, that she was ill and unemployed, had an income of $1,500 to $2,000 annually from stock dividends, and needed $75 a week for support. She also testified defendant was then living with another woman. Exemplified copies of plaintiff's petition and a transcript of her testimony were thereafter transmitted to the Bergen County Juvenile and Domestic Relations Court.

On June 22, 1967 defendant testified before the Juvenile and Domestic Relations Court, ex parte. Although he did not deny that he deserted plaintiff, he did controvert her testimony as to her income and financial status and her need for support. He further asserted that his own monthly earnings

(of some $750 to $900) was barely sufficient to meet his expenses.

Believing that plaintiff should be given an opportunity to "meet this information," the court directed that defendant's testimony be sent to the New York court. Actually, only "court notes" of his testimony, and not a transcript thereof, were forwarded.

On July 24, 1967 plaintiff gave "answering testimony" before the New York court. The judge apparently had possession of the "court notes" and examined her in detail on the contents thereof. A transcript of plaintiff's testimony was returned to New Jersey, and the local court, after a consideration of all the evidence before it, concluded that "no order for payment of support monies is warranted at this time" and accordingly dismissed plaintiff's complaint.

Plaintiff primarily urges that the trial court erred in taking and accepting defendant's testimony without having notified her of the hearing date thereof so that she might have an opportunity to cross-examine him. In support of this contention plaintiff states that at the time she filed her petition she understood that defendant would be summoned to appear in New Jersey to present his testimony and that she requested the New York court to advise her of the date of the hearing so that she might go to New Jersey with counsel and cross-examine defendant. However, she was not so advised and was not given a copy of the "notes" of defendant's testimony until after the judgment of dismissal was entered and this appeal was in progress. Defendant does not deny these allegations.

Generally, the cross-examination of a party witness on matters directly in issue or directly relevant thereto is a matter of right. Brogan v. Passaic Daily News, 22 N.J. 139, 153 (1956); Mitilenes v. Snead, 45 N.J. Super. 246, 251 (App. Div. 1957). Where failure to permit cross-examination seriously affects the substantial rights of a party to the suit, a judgment based upon such failure will not be permitted to stand. Mitilenes, at p. 251; Liberatori v. Yellow

Cab Co. of Phila., 35 N.J. Super. 470, 478 ...


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