On appeal from the Superior Court, Chancery Division, Morris County.
Matthews, Pressler and Petrella. The opinion of the court was delivered by Pressler, J.A.D.
Upon the denial of her motion for an adjournment made on the scheduled trial date of this divorce and custody action, plaintiff-wife Ruth S. Fehnel moved for an order of voluntary dismissal without prejudice. The motion was granted subject to the condition that she pay defendant-husband Richard B. Fehnel a counsel fee in the amount of $2,000 and that she be barred from reinstitution of the action until the making of such payment. She appeals from the imposition of these conditions. We reverse because we are persuaded that the denial of the adjournment motion which precipitated the dismissal constituted a mistaken exercise of discretion under the circumstances.
Insofar as we are able to reconstruct from the regrettably sparse record before us, the parties were married in 1958 and had four sons, the eldest of whom is now emancipated. The three minor sons are now 11, 13 and almost 18. Plaintiff first sued for divorce by a complaint filed in 1977 alleging defendant's extreme cruelty. The parties thereafter reconciled and the action was dismissed by the judge pursuant to R. 1:13-7 on his own motion and without prejudice for failure to prosecute. The reconciliation unfortunately did not succeed and plaintiff instituted
this action for divorce on essentially the same grounds as previously pleaded by a complaint filed on November 30, 1979. Defendant, still apparently desirous of saving the marriage, filed his answer in February 1980, denying the allegations of cruelty and asking that the complaint be dismissed. He sought no affirmative relief.
At the time the second complaint was filed plaintiff was a third-year student at Drew University in Madison, New Jersey, having returned to school some 20 years after her marriage. Because of the domestic difficulties, she had obtained living accommodations on campus but apparently returned home daily to visit with and supervise the children.
In February 1980 plaintiff filed a motion for pendente lite relief seeking support and maintenance for herself and the children in both general and specific terms. Among her specific requests was defendant's assistance in paying the loans she had taken for her tuition and in providing psychological counselling for the children. It appears that financial problems, or at least the parties' variant views regarding the family finances, were a major source of conflict between them. Defendant's response to this motion was to make a cross-motion for pendente lite custody of the children, the first suggestion that the question of custody was in dispute. The motions were apparently determined on the certifications without oral argument. Hence, we have no transcript advising us of the reasons for their ultimate disposition, and if there was a letter decision explaining those reasons, we have not been made aware of it. In any event, an order was entered in April 1980 denying pendente lite support, denying the application for tuition assistance, requiring the husband to continue to pay the expenses for maintaining the marital residence and for various health and life insurances, awarding him pendente lite custody and appointing one John White, M.S.W., a family therapist, to evaluate the children at defendant's expense and to advise the court as to the children's need for counselling.
Following the entry of this order plaintiff resumed her residence in the marital home. White also wrote to the court advising that all three boys were upset over the marital difficulties, were attached to both parents, were probably ambivalent in their feelings and needed professional help because of their "inability to cope with the trauma in which they are currently involved." The record does not indicate whether any professional help was afforded.
Nothing further in terms of the record appears to have occurred until October 20, 1980, just short of 11 months after the complaint was filed. On that date the parties appeared for a scheduled trial and engaged in several conferences with the "assignment" judge of the matrimonial court. Insofar as we can determine in view of the fact that there is no record notation of what transpired at these conferences, it appears that the parties then realized that their assumption that there would be joint custody of the children following the divorce could not be realized because of their disagreement as to how the children's financial support would be managed. The marital assignment judge then rescheduled the trial for the following week, October 27, 1980, before another trial judge.
The parties appeared before the trial judge on the scheduled date. Again there is no record notation of what exactly transpired since it appears that whatever did transpire took place in chambers without recording. As best as we can reconstruct, the wife's attorney advised the trial judge that although custody had not been contested by pleading and that although joint custody had been anticipated by the parties, it now appeared that it had become a serious and paramount issue in the litigation. Since there had been no probation investigation as required by R. 4:79-8(a), no psychiatric or psychological testing and evaluation of all family members and no arrangements made for expert testimony on these issues, she requested an ...