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Raybin v. Raybin

Decided: May 19, 1981.

DIANA RAYBIN, PLAINTIFF-RESPONDENT,
v.
LARRY RAYBIN, DEFENDANT-APPELLANT



On appeal from the Superior Court, Chancery Division, Monmouth County.

Matthews, Morton I. Greenberg and Loftus. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.

Greenberg

The issue raised by appellant in this matrimonial action relates to the trial court's jurisdiction to enter a divorce between the parties. Defendant's appeal does not question the substantive provisions of the judgment.

The significant facts as developed in the trial court are as follows. Plaintiff and defendant were married in New York on May 13, 1972. Subsequently, on December 3, 1973, they purchased a single-family dwelling at 12 Liberty Road, Marlboro, New Jersey. They took title as tenants by the entireties. They resided together at these premises until October 31, 1976, when defendant left the premises and moved to New York. Plaintiff continued to reside at the premises after defendant left. On April 1, 1977 plaintiff filed a complaint for separate maintenance against defendant. The complaint recited that she resided at 12 Liberty Road in Marlboro Township, New Jersey. In her complaint she set forth in considerable detail alleged acts of extreme cruelty committed by defendant commencing July 1976.

Defendant moved to dismiss the action for want of jurisdiction. He attached an affidavit to his motion asserting that neither party was a resident of New Jersey when the case was brought. On July 20, 1977 the trial judge signed an order denying the motion to dismiss without prejudice. The order recited that the court had jurisdiction.

Thereafter the trial judge appointed a receiver to sell the parties' property in Marlboro. The property was sold in September 1977 for a gross price of $91,000. After the payment of liens, expenses and fees there was a net left of $48,418.53. That sum was deposited with the Clerk of the Superior Court.

Subsequently plaintiff served a motion to amend the complaint to seek a divorce. Defendant opposed the motion on the ground that neither party was domiciled in New Jersey. On April 10, 1978 the trial judge signed an order granting plaintiff's motion and specifically allowing her to amend the complaint to seek a divorce on the ground of extreme cruelty. Plaintiff did

file an amended complaint for divorce on April 6, 1979. The amended complaint incorporated the original complaint by reference. It sought a divorce on the grounds of both desertion and extreme cruelty. The facts said to constitute extreme cruelty were set out at length in the amended complaint. They included certain of the allegations asserted in the original complaint. However, the amended complaint was more detailed and included charges concerning additional incidents.

Defendant also sought a divorce in the Superior Court in 1979. He filed a counterclaim, dated February 26, 1979, to plaintiff's original complaint in which he asserted that plaintiff resided at 11 Liberty Road in Marlboro.*fn1 Defendant asked for a divorce on the ground that the parties had been separated for 18 months and that there was no reasonable prospect for reconciliation. He alleged that at the end of 18 months plaintiff resided at 11 Liberty Road, Marlboro, New Jersey.

When the case came on for trial defendant, notwithstanding his counterclaim, pressed his contention that the court should dismiss the action because it did not have jurisdiction. The trial judge, however, found as a fact after taking testimony that plaintiff had been a resident of New Jersey when the separate maintenance action was brought and when the acts of extreme cruelty were committed. It appeared, however, that plaintiff moved to New York after the sale of the Marlboro property and before the amended complaint was filed. Nevertheless, the trial judge found there was jurisdiction because plaintiff had been forced to move from New Jersey because of the circumstances confronting her after defendant had left. On September 27, 1979 the judge signed an order granting plaintiff a divorce on the ground of extreme cruelty. The order also made partial provision for equitable distribution and provided that she be awarded the net proceeds of the sale of the property at 12

Liberty Road, Marlboro. Plaintiff was to seek further information with ...


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