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D''Arc v. D''Arc

Decided: November 20, 1978.

VICTOR D'ARC, PLAINTIFF,
v.
MARY LEA J. D'ARC, DEFENDANT



Imbriani, J.c.c.

Imbriani

It would be worthwhile to first state the long, torturous path along which this bitterly contested divorce case has been litigated.

Dr. Victor D'Arc, a psychiatrist (hereinafter often referred to as the husband) filed suit for divorce on September 24, 1976 on the grounds of extreme cruelty. Due to difficulty in serving defendant wife it was not until March 30, 1977 that Mary Lea J. D'Arc, scion and heiress of the pharmaceutical fortune of Johnson & Johnson (hereinafter referred to as the wife) filed an answer and counterclaim for divorce on the grounds of deviant sexual conduct and extreme cruelty. On April 20, 1977 the husband amended his complaint to include a count of adultery.

There was extensive pretrial discovery. There was also an interlocutory appeal to the Appellate Division which, amongst other things, ordered the trial bifurcated as to the divorce and financial aspects.

The trial as to the divorce commenced on December 12, 1977. It was apparent at the outset that the trial would be extended and "messy." It was also immediately apparent that neither party had the slightest desire to continue the

marriage. Accordingly, both parties, with the consent of the other, amended their pleadings to include a count for divorce alleging 18 months' no-fault separation.

They submitted their proofs and the court granted a dual divorce to both parties on the ground of 18-month separation. At the time of the entry of the dual divorce both parties stipulated that when the financial aspects were tried at a later date, each party reserved the right to offer proof of marital fault conduct by the other and that such evidence would be relevant and admissible on the issues of alimony and equitable distribution of marital assets.

The court also permitted the wife to resume her maiden name of Mary Lea Johnson. Accordingly, when referring to the wife hereinafter, the court will often use her maiden name.

The remaining or financial portion of the trial commenced February 21, 1978. As the result of illnesses of the husband and the court being assigned to try other cases out of county, the testimony as to alimony and equitable distribution was not concluded until July 27, 1978, after 12 days of actual testimony.

Summations were by written briefs submitted in the latter part of September.

Now for the evidence.

Both were previously married to another spouse and divorced. He had two children, she six. They met while the husband was professionally treating one of the wife's sons. They dated, lived together approximately one year and then married on June 15, 1972. They separated on February 22, 1976, some three years and eight months later. On the day they separated the parties signed an agreement which was prepared by the husband. That agreement is discussed in detail infra.

The husband had a private psychiatric practice in New York City prior to the marriage and earned $50,000 a year. After the marriage he continued his practice for a brief period, but because, as he asserted, he had to assume management

of his wife's financial affairs, he discontinued his private practice. The wife disputed this claim and, on the contrary, said she urged him to continue his private practice so that he would not be totally dependent on her.

The wife is the beneficiary of a substantial trust fund created by her father with stock in Johnson & Johnson, the international pharmaceutical firm. Independent trustees have absolute discretion in the distribution of both income and principal; her annual income is, and has been for a considerable time, in excess of $1,000,000 annually. During this marriage, except for the small earnings of the husband shortly after the marriage, all of the funds spent by those parties were provided by the wife.

Her monetary contributions to the marriage were considerable. For instance, apart from providing funds to live and maintain themselves and their children in high style, she contributed $1,600,000 to purchase a Far Hills, New Jersey, residence; $450,000 to purchase property adjoining the residence; $250,000 to acquire investment property in Bridgewater, New Jersey; $525,000 to acquire real estate in Clinton, New Jersey; $750,000 to acquire personalty and art objects; $200,000 to purchase an apartment in New York City; and much more.

The husband had his own personal bank account during the marriage. He was also authorized to draw checks on his wife's bank account. During the marriage, whenever he needed funds for himself, he merely drew a check upon his wife's account and deposited the funds to his own account. We do not know how much money he so acquired from his wife's checking account, but we do know that she never denied or refused his requests for money.

On the date of separation Dr. D'Arc typed a one-sheet agreement, which both promptly signed. The essential terms thereof were that Miss Johnson agreed to pay her husband "tax free alimony of $10,000 per month indefinitely"; further, if he should predecease her, Miss Johnson was to pay all of the "educational expenses" of his two children by

his first marriage and "the sum of $25,000 each per year indefinitely."

Any chance at reconciliation was demolished in March and April 1976 when the wife received information that her husband was negotiating to arrange for her murder. The husband denied the charges and countered with the charge that, in fact, his wife had solicited someone to murder him.

The husband produced a witness who supported his charge. The wife produced a tape recording of telephone conversations wherein one of the speakers clearly offered the other $50,000 to murder Miss Johnson. The husband denied that he was the speaker in the recorded telephone conversation. The tape recording was admitted following an Evid. R. 8(1) hearing. See State v. Cardone , 146 N.J. Super. 23 (App. Div. 1976).

Since these accusations may be relevant on the issues of alimony and equitable distribution, they should be resolved first.

The husband produced Thomas Tracy, a bartender from New York City, who testified that one evening Miss Johnson went to the tavern where he was employed as a bartender and offered to "take care of him" by setting him up in his own tavern if he would "get rid" of her husband "permanently." He said he refused her offer. John A. Clohessey testified that he saw Tracy and Miss Johnson speak to each other at the tavern, but he did not overhear their conversation. Miss Johnson admitted being at the bar and speaking with Tracy, but vehemently denied any discussion about murdering her husband.

The wife put into evidence a tape recording bearing seven different telephone conversations, allegedly between her husband and a Teddy Fino, which conversations took place in New York City. In those conversations the party alleged to be the husband offered Fino the sum of $50,000 to murder Miss Johnson. She claims that Fino purported to go along with the proposal but, in fact, took the recordings to

Miss Johnson, presumably with the intent to sell her the original tape and his testimony.

She took a copy of the tape recording to the district attorney's office in New York City. That investigation is stalled because of the refusal of Fino to testify before the New York grand jury.

The recording was given to a voiceprint expert to compare to a voice exemplar of the husband obtained by court order. The order was the main reason for the appeal to the Appellate Division. The voiceprint expert was offered by the wife as a witness, but the court sustained the objection to such testimony on the ground that the voiceprint technique is not presently recognized within the scientific community as being sufficiently ...


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