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Zappala v. Zappala

Decided: January 5, 1988.

BARBARA W. ZAPPALA, PLAINTIFF-APPELLANT,
v.
ANGELO J. ZAPPALA, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Chancery Division - Family Part, Burlington County.

Gaulkin, Gruccio and D'Annunzio. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

This is an appeal by the wife, on leave granted, from a partial summary judgment mandating "that the termination date of the marriage, for the purpose of equitable distribution of assets, is October 13, 1982, the date of the filing of the Complaint for Divorce in the Commonwealth of Pennsylvania by the Defendant, Angelo J. Zappala."

The parties married in 1965. They lived together in Moorestown, New Jersey from 1976 until April 1982 when the husband left the marital home and took up residence in Bucks County,

Pennsylvania. On October 13, 1982, the husband filed a three-count divorce complaint in Pennsylvania. Count I sought a divorce on the grounds of "indignities"; Count II sought a divorce based on the consent of both parties; Count III sought a no-fault divorce based on three years of separation. Count III did not allege that the parties had been separated for three years, but rather represented that "at the time of the hearing, plaintiff will submit an affidavit alleging that the parties have lived separate and apart for at least three years."

On January 25, 1984, the wife filed a complaint in New Jersey seeking, among other relief, a divorce on grounds of desertion and extreme cruelty. She was granted an order temporarily restraining the husband from taking further action on his Pennsylvania complaint. A subsequent order directed that the restraints "shall continue in full force and effect until June 29, 1984."

In May 1985, the wife received certain pleadings from the Pennsylvania court indicating that the husband was proceeding with his action. By order dated May 8, 1985, the New Jersey court again temporarily restrained the husband from so doing. That restraint was partially dissolved by order dated June 12, 1985, which permitted the husband to "proceed on no-fault grounds in Pennsylvania." On July 1, 1985, a judgment of divorce was entered in Pennsylvania on the no-fault ground of a three year separation. Issues of custody, support, alimony and equitable distribution were not addressed in Pennsylvania and are to be decided, the parties agree, in the New Jersey action.

In August 1985, the husband moved for partial summary judgment establishing October 13, 1982, the date he filed his Pennsylvania complaint, as the date of termination of the marriage for purposes of equitable distribution. In response, the wife urged the court to adopt January 25, 1984, the filing date of the New Jersey complaint, as the equitable distribution date. The motion judge, relying on Portner v. Portner, 93 N.J. 215

(1983), fixed October 13, 1982 as the cut-off date. The wife appeals. We reverse.

N.J.S.A. 2A:34-23 authorizes equitable distribution of property acquired by the spouses "during the marriage." Although that language could be said to fix the date of divorce as the termination date of a marriage, our case law has rejected that reading. Painter v. Painter, 65 N.J. 196, 217 (1974). The marriage is terminated, rather, on the date "the enterprise collapses -- on which the marriage irretrievably breaks down." Smith v. Smith, 72 N.J. 350, 361 (1977).

The cases recognize that it is virtually impossible to establish with any reasonable precision when a breakdown of the marital relationship has become irretrievable. Painter, 65 N.J. at 217; Portner, 93 N.J. at 219. Accordingly, our Supreme Court has established bright-line rules "to avoid the necessity of the court and the parties spending inordinate amounts of time and ...


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