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Zirk v. Nohr

New Jersey Supreme Court


Decided: February 7, 1941.

WILLIAM ZIRK, AS TRUSTEE FOR RUTH NOHR, RESPONDENT,
v.
AUGUST A. NOHR, JR., APPELLANT

On appeal from the Second District Court of Jersey City.

For the appellant, William Blohm and John W. Ockford.

For the respondent, Armstrong & Mullen (Arthur C. Mullen).

Before Justices Bodine and Porter.

Bodine

[125 NJL Page 610]

BODINE, J. The plaintiff, as trustee for Ruth Nohr, a minor child, had judgment for the arrearages due under a written instrument under seal, whereby the defendant agreed to pay to the plaintiff $20 a week which his then wife agreed to accept for the maintenance and support of their child. The parties were subsequently divorced. The father is obliged to support his minor child. This duty may be enforced in equity. The divorce of the parents does not terminate the duty. Notwithstanding the agreement, if the amount fixed was inadequate, equity would make a suitable allowance. Rennie v. Rennie, 85 N.J. Eq. 1.

There is no public policy against the enforcement of an agreement to pay a sum certain for the support of a minor child, as counsel suggests. The circumstance that the Court of Chancery could enforce a like duty does not relieve the father from the duty to perform his sealed contract. Emery v. Neighbour, 7 N.J.L. 142. It has been held that a contract to support a wife, if fair and just, will be enforced in equity but that such agreement is unenforceable at law because of the incapacity of the parties to contract as to that matter.

[125 NJL Page 611]

Cohen v. Cohen, 121 N.J. Eq. 299. There was no lack of capacity here since the fatherhs agreement was to pay to a third party.

The judgment is affirmed.

19410207


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