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Mahne v. Mahne

Decided: May 14, 1973.

JOSEPH L. MAHNE, PLAINTIFF,
v.
GRANGE R. MAHNE, DEFENDANT



Consodine, J.s.c.

Consodine

Plaintiff seeks divorce on adultery. Defendant denied, and counterclaims under oath in extreme cruelty. The corespondent denied the adultery both by his verified petition to intervene and by his answer.

Defendant and corespondent both refuse to answer interrogatories, claiming the privilege of the Fifth Amendment

to the United States Constitution. Plaintiff moves to dismiss their pleadings for failure to answer on discovery. Adultery is a misdemeanor in this State. N.J.S.A. 2A:88-1.

The motion raises a constitutional question on which there is little in New Jersey case law but some in a few other jurisdictions.

Marsh v. Marsh , 16 N.J. Eq. 391, 397 (Ch. 1863), and Black v. Black , 26 N.J. Eq. 431, 434 (Ch. 1875), sustained demurrers to discovery as to the commission of adultery. In Marsh , the court stated:

Florida dealt with the issue involved both before and after Spevack v. Klein , 385 U.S. 511, 87 S. Ct. 625, 17 L. Ed. 2d 574 (1967) (penalty of disbarment could not be imposed), and Garrity v. New Jersey , 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967) (penalty of loss of position as policeman could not be imposed).

Stockham v. Stockham , 168 So. 2d 320 (Fla. Sup. Ct. 1964), held that unless plaintiff who had sued in adultery answered in discovery, the complaint would be dismissed.

Spevack and Garrity, supra , intervened before Simkins v. Simkins , 219 So. 2d 724 (Fla. D. Ct. App. 1969), and Minor v. Minor , 232 So. 2d 746 (Fla. D. Ct. App. 1970), aff'd 240 So. 2d 301 (Fla. Sup. Ct. 1970). In Simkins an intermediate appellate court felt constrained to take an opposite position to that of Spevack. A dissent argued that neither United States Supreme Court case changed the law of Stockham, supra , because neither Spevack nor Garrity came into court voluntarily.

In Minor the trial court ordered plaintiff to answer discovery or be dismissed where defendant charged adultery. The appellate court affirmed, adopting the dissent in the

Simkins case. This was affirmed by the Florida Supreme Court, which cited Stockham v. Stockham, supra. See also Simonet v. Simonet , 241 ...


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