Wells v. Wells , 41 N.J. 594 ( 1964 )

41 N.J. 594 (1964) 198 A.2d 442

GEORGE A. WELLS, PLAINTIFF-APPELLANT,
v.
MATTIE BELLE ROBINSON WELLS, DEFENDANT-RESPONDENT.

The Supreme Court of New Jersey.

Argued February 3, 1964. Decided March 16, 1964.

Mr. William L. Brach argued the cause for plaintiff-appellant (Messrs. Zucker, Brach & Eichler, attorneys; Mr. William L. Brach, of counsel).

No appearance for defendant-respondent.

The opinion of the court was delivered

PER CURIAM.

We are generally in accord with the dissenting opinion of Judge Gaulkin, 79 N.J. Super. 388, 395 (App. Div. 1963).

The sole question presented is whether the trial court had the power to raise the issue of recrimination and whether under the facts of this case it should have raised that issue. Assuming that a court ordinarily has discretionary power to raise, sua sponte, a recriminatory bar to plaintiff's cause of action for divorce, we agree that the judge should not have exercised that discretion under the factual complex here present.

The judgment of the Appellate Division is accordingly reversed and entry of judgment of divorce in favor of plaintiff is directed.

For reversal — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.

For affirmance — None.