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Nunzio v. Nunzio

Decided: November 9, 1970.

ELIZABETH DI NUNZIO, COMPLAINANT,
v.
ROBERT DI NUNZIO, DEFENDANT



Kentz, J.J. & D.r.c.

Kentz

Complainant and defendant were married in 1959 and three children were born of their marriage. On June 24, 1968 complainant left the marital abode as a result of defendant's alleged misconduct.

On August 5, 1968 there was a hearing in this court on the wife's complaint for support for herself and the three minor children based on defendant's cruel and inhuman conduct, pursuant to N.J.S.A. 2A:4-18(f). At the hearing on the complaint this court found factually that over a period

of time defendant had violent arguments with complainant; that during one such argument he took out a gun and threatened to kill himself in front of his family; that he drove recklessly with his wife and children in his car, deliberately to frighten them; that he threatened to kill his wife and children and attempted to choke her, and by reason thereof complainant and her children were forced to leave the marital home. The court being of the opinion that complainant had sustained the burden of proving the complaint, entered a support order for complainant and the minor children based on defendant's financial ability. No appeal was taken from that order by either party under N.J.S.A. 2A:4-40.

Thereafter complainant instituted an action for divorce in our Superior Court, Chancery Division, on the ground of extreme cruelty. The complaint was dismissed for lack of sufficient evidence.

Subsequently defendant ceased making payments to complainant but continued to make payments for the children. As a result, complainant now seeks a determination as to the resulting arrearages and defendant seeks to vacate that portion of the support order which provided support for complainant. He contends that by virtue of the dismissal of her divorce action she would not be entitled to support in the Chancery Division and should not now receive any support from this court.

The first question raised in this proceeding is whether the evidence required to establish such extreme cruelty as would justify the wife's leaving the marital abode and thereby constitute a constructive desertion entitling her to a divorce is the same quantum as is necessary to show that the husband's conduct was so cruel and inhuman as to force the wife to leave the marital home and thereby constitute a constructive desertion entitling her to support in the Juvenile and Domestic Relations Court.

This question calls for an examination of the concurrent jurisdiction of the Juvenile and Domestic Relations Court and the Superior Court. The Juvenile and Domestic

Relations Court has concurrent jurisdiction with the Superior Court in matters pertaining to support of a deserted spouse and can order support based on the common law duty of a husband to provide suitable support and maintenance for his wife. Bonanno v. Bonanno , 4 N.J. 268 (1950); Wilson v. Wilson , 86 N.J. Super. 61 (App. Div. 1965); Russell v. Russell , 99 N.J. Super. 423 (Ch. Div. 1967). See also, Lysick v. Lysick , 91 N.J. Super. 394 (App. Div. 1966), and Ricci v. Ricci , 96 N.J. Super. 214 (J. & D.R. Ct. 1967).

N.J.S.A. 2A:4-18 states:

The juvenile and domestic relations court shall also have jurisdiction concurrently with such other courts as may have jurisdiction over the matter, to hear and determine in a ...


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