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Coney v. Coney

Decided: July 24, 1985.


Gladden, J.s.c.


This matter came on for final hearings which were held on April 23, May 9, and May 23, 1985 for divorce and equitable distribution of property. The court, having heard all the evidence, as well as having reviewed the exhibits in evidence, now makes the following findings of fact:

Plaintiff and defendant have known each other most of their adult lives. They began to date during the 1960's, at which time they were still married to, but separated from their former spouses. In 1968 plaintiff rented a property in the Parkside section of Camden, New Jersey and he and defendant, together with her two children, ages 6 and 4, moved into it. They lived there for about a year, at which time he rented a part of a duplex property in West Berlin, New Jersey. This location was near his employment and was also near Chesilhurst, a community which was familiar to both parties. Plaintiff was working steadily as a trucker and defendant was collecting public assistance for her children.

At that time, both parties were in the process of obtaining divorces. Both were interested in locating in Chesilhurst and began negotiations with a builder known as Charles Homes, Inc. Plaintiff reviewed the plans submitted for their home with his employer, John DiMeglio. The agreement was that they would purchase the lot from Charles Homes, who would also provide the shell for the home. The arrangements with Charles Homes called for the parties to take care of clearing some

trees, providing the excavation and foundation for the shell, and finishing the building to their own taste. The agreement was reached and settlement was had thereon in November 1971.

By the time of settlement, defendant had already obtained a divorce from her former spouse, but plaintiff's action was still pending. Therefore, title was taken in defendant's name alone, and she executed a mortgage for $16,000 to complete the settlement.

The court finds as a fact that it was plaintiff's funds that were used to provide the down payment and other settlement costs. Defendant claimed at the trial that her former father-in-law had given her $2,000, $1,000 for each of the children, and she had used these funds for the down payment and settlement costs, but there was absolutely no proof or details thereon. On the other hand, she did not deny that plaintiff was working steadily and that he had made it a practice to turn over all his earnings to her and she took care of the banking and determined which checking accounts she would use for payment of bills. After settlement was held, plaintiff's employer arranged with a friend of his in the construction business named Sam Rinker to assist plaintiff in clearing some trees from the lot, making excavation and pouring the foundation for the shell, for a good price. After the shell was in place plaintiff finished the property with some help from friends of his. Plaintiff paid the contractor and he and defendant and her two children moved in.

After about a year, they decided to build a driveway and plaintiff purchased the materials therefor and built it. During the next several years, the parties continued to improve their property. These improvements consisted of having a recreation room and fireplace built. To finance these improvements, the parties obtained the funds from a finance company, making application therefor as husband and wife, although they were not yet married. They later acquired the contiguous lot which plaintiff cleared of trees and built a parking area for his truck.

During this period of time, plaintiff's divorce became final and the parties continued, as they had previously, living together as a family unit with plaintiff working steadily and defendant taking care of the home and working on her education. She had acquired her high school equivalency degree and in 1968 began to take courses at the Camden County Community College. She graduated in 1974 and continued at Glassboro State Teacher's College, as it was then known, and earned a bachelor of arts degree in 1977. She was then certified by the New Jersey Board of Examiners to teach on the nursery and elementary school levels.

All during this period, defendant continued to maintain the family finances, as she had always done, including the payment of the mortgage on the Chesilhurst property, which she would sometimes pay from one of his accounts and sometimes from her account. Eventually, she obtained employment with the Board of Education of the Borough of Lawnside, where she made approximately $125 to $135 a week, plus the public assistance that she was obtaining. She went off that assistance in 1977. In November 1978 the parties married and they continued to live in the property as a family unit, exactly as they had prior to their marriage. The parties installed underground electricity on their property and the contiguous lot to provide for floodlights for the property and electricity for the plaintiff's tractor.

In 1984, the parties began to have marital difficulties. At that time plaintiff had one checking account that he used for business only and for which he never gave the defendant the authority to sign his name. Plaintiff began to manage all accounts, including paying the bills, in 1983 after defendant failed to pay taxes owed. Nevertheless, in July 1984 she wrote a check for $3,000 without asking him, and used the proceeds to pay for some items for her children and her own medical bills for psychiatric treatment, as well as for attorneys fees for the present litigation.

It should be noted that at the trial defendant took the position that plaintiff did not live with her "on a full time basis." Her testimony was that he was a "visitor" and he may have stayed with her three or four days in any given week. She claimed that defendant actually lived elsewhere. Her proof of this point however, was very unsatisfactory. Whereas, plaintiff's proof that he, in fact, lived there full time with defendant was overwhelming. This included not only his testimony, but the testimony of his employer, who knew him and who helped him in his efforts to obtain the marital property and to get it built. This employer had called plaintiff many times relating to work problems and on some of those occasions he would talk to defendant. In addition, plaintiff had many records, including his business records, drivers licenses, registrations, tax returns, loan documents, etc., all of which showed his address to be the marital home. The court finds as a fact that plaintiff lived in the marital home on a full time basis and that any overnight absences were due to his trucking business.

The complaint for divorce was filed in September 1984. Plaintiff testified as to the various acts of extreme cruelty committed by defendant against him, as detailed in paragraph four of his complaint, in subparagraphs A through G. These acts began about March 1984 and continued into that summer. There was no cross-examination of plaintiff with regard to this testimony. The court finds that the acts complained of constitute extreme cruelty as it is defined under our statutes and cases decided thereunder, and that such acts endangered his psychological health and physical health and made it unreasonable to expect plaintiff to continue to cohabitate with defendant. The court will, therefore, sign a judgment in favor of plaintiff based upon that ground for divorce.

The court now turns its attention to a troublesome question regarding equitable distribution of certain property. The principal question in this case ...

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