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Gazzillo v. Gazzillo

Decided: October 3, 1977.


Lester, J.s.c.


This is an action for divorce based upon "extreme cruelty" as defined in N.J.S.A. 2A:34-2(c). The unusual facts of this case test the flexibility of the new Divorce Act, specifically the extent to which the second paragraph of the statute invokes "fault" or "no fault." The issue presented to this court is whether certain acts of defendant husband constitute "extreme cruelty" as defined in the statute, so as to justify plaintiff's petition for divorce.

N.J.S.A. 2A:34-2(c) provides as a ground for divorce:

Extreme cruelty, which is defined as including any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant; * * *.

The parties were married on August 30, 1969 in Bethesda, Maryland, home of plaintiff. Both plaintiff and defendant are bona fide residents of the State of New Jersey. A child of the marriage was born about 2 1/2 years ago. Residential and jurisdictional requirements are met.

The facts are hotly contested. Plaintiff has alleged and testified that beginning in the latter part of 1970 and continuing through the present, defendant has been guilty of "extreme cruelty" toward her. The acts generally complained of by plaintiff, corroborated in part by her witnesses and denied categorically by defendant, include (among other things) a hostile, critical and uncommunicative attitude toward plaintiff, a gross misunderstanding of plaintiff's desire to see a marriage counselor, constant belittlement, abusive language and threats of violence directed at plaintiff.

Plaintiff has also alleged continuous, albeit inconsistent, fits of unprovoked anger and harassment by defendant resulting in humiliation and embarrassment.

In addition to general allegations, there was testimony with respect to all eleven subparagraphs of paragraph Four of the complaint alleging specific examples of "extreme cruelty." Paragraph Four reads in pertinent part:

(a) In the Fall of 1970, during one of his rages, the defendant kicked a hole in the closet door of their apartment.

(b) During the Fall of 1970, the defendant continuously harassed the plaintiff about her seeing a psychiatrist, even though she had often tried to explain to him her reasons for seeking therapy. The defendant called the plaintiff a "sickie" and a "freak" until, finally, he intimidated her into stopping therapy before she was ready to do so. * * * When she told him she wished to continue for a while, he screamed and yelled and said he would not hear of it. * * *

(c) In or about the Spring of 1971 * * * the plaintiff, and her sister, were involved in a near accident, * * * The plaintiff was quite shaken by the experience. When she told the defendant about it that night, he screamed and yelled at her and then went to bed, refusing to talk further either to the plaintiff or to her sister. * * *

(d) In or about January of 1972, while driving to their recently purchased home, the defendant went into a rage because the plaintiff was not sure of the directions. He grabbed her with his free hand, shook her and threatened her.

(e) In or about February of 1972, the defendant, in one of his violent rages, threatened the plaintiff and chased her down the stairs. Terrified, the plaintiff ran out the front door. The defendant then, despite the freezing weather, locked the plaintiff out of the house. * * * While she was outside, the defendant pulled down all the shades and acted very strangely.

(f) In the Spring of 1972, the defendant refused to permit the plaintiff to have her sister and her family, who resided in Maryland but were then visiting in Long Island, to dinner. The plaintiff invited them to lunch when the defendant was not at home. It was embarrassing for the plaintiff to have to make excuses for the defendant.

(g) In or about December of 1973, the plaintiff was nine months pregnant and her water broke, but her labor did not start. The defendant spent the whole day alternately blaming the plaintiff and then not speaking to her because her labor had not started (he had earlier blamed her for not getting pregnant soon enough and having some trouble in the early months).

(h) During the Spring and Summer of 1974, the defendant consistently refused to make it possible for the plaintiff to get out at night by refusing to watch the baby. One night, * * * the plaintiff

insisted that the defendant watch the baby while the plaintiff and her mother went to the movies * * *. Plaintiff was gone for two hours. When she returned, the baby was screaming alone in her crib. * * * [T]he baby * * * was still dressed, not in her pajamas (at 10:00 P.M.) and was soaked with sweat. * * * The plaintiff was upset and embarrassed.

(i) In or around the Spring of 1974, the defendant planned a five day trip to Maryland on business. The plaintiff planned to go along and stay at her mother's home, * * *. One night at dinner, the defendant indicated they could go only for four days. When the plaintiff expressed mild disappointment, the defendant flew into a rage, jumped up from the table, then put his arms around her throat as if to choke her. The defendant screamed that he hated and wanted to kill the plaintiff. * * * All of this transpired in the presence of the baby, who was upset by it.

(j) In or around the Summer of 1974, * * * friends invited the plaintiff and defendant to dinner. The defendant reluctantly agreed to go * * * but later had second thoughts and said no. The plaintiff, who had already spoken with her friends, insisted on attending. The defendant carried on all afternoon screaming and yelling. On the way to New York, the defendant drove about 30 mph on Route 17 (dangerously slowly) and hurled verbal abuses at the plaintiff, calling the plaintiff and her friends * * * obscene names * * *. When they arrived, the defendant continued the fight in front of the plaintiff's friends, embarrassing and insulting her.

(k) In or around the Winter of 1975, one night at dinner, the plaintiff and defendant had an argument and the defendant threw a piece of meatloaf at the plaintiff. * * *

With respect to subparagraph (a), defendant denies any incident and says there was never any hole. Plaintiff's sister cannot corroborate the occurrence but does testify that the hole was ...

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