For the prosecutor, Major & Carlsen.
For the defendant, Joseph H. Gaudielle.
Before Justices Parker, Donges and Eastwood.
The opinion of the court was delivered by
DONGES, J. Certiorari was allowed to review an order of the Bergen County Court of Juvenile and Domestic Relations, directing prosecutor to pay the sum of thirty-five ($35) dollars a week for the support and maintenance of his two minor children, instead of the twenty-five ($25) dollars per week which he was paying.
Prosecutor assigns three reasons for reversal:
1. It was error to refuse to dismiss the petition or complaint on prosecutor's motion.
2. It was error to refuse to dismiss the proceeding and enter a judgment for prosecutor.
3. There were no facts before the court to sustain the order under review.
It appears that prosecutor and his wife separated by agreement, and that the wife had custody and control of their two children. She maintains a home, which she bought and for which she is paying in installments. She is working and earning forty ($40) dollars per week. The undisputed testimony is that the husband has been contributing twenty-five ($25) dollars per week, which the wife testified is insufficient to properly maintain their daughter, who is thirteen years of age, and their son, eight years of age. She testified that the expenditure required to maintain the children exceeded $25 per week and that she was obliged to contribute from her earnings for that purpose. It was also testified without contradiction that the father's earnings were at least $150 per week. The prosecutor did not take the stand, nor was any testimony offered on his behalf to contradict the wife's testimony. It seems clear, therefore, that the factual finding that the father could and should pay $35 per week was fully warranted.
Prosecutor urged that the court below was without jurisdiction in the matter. A motion to strike the petition was denied. The trial judge, however, did strike reference to all statutes save the Juvenile and Domestic Relations Court Act, chapter 77, Pamph. L. 1946. The petition, by consent, was amended to state the financial means of prosecutor. We conclude that the petition was sufficient to give the court and defendant below adequate information of the judgment sought. Prosecutor ...