On appeal from the former Court of Chancery.
For affirmance: Chief Justice Vanderbilt, and Justices Case, Heher, Wachenfeld, Burling and Ackerson. For reversal: None. The opinion of the court was delivered by Burling, J.
This action was brought by the complainant to obtain a decree of separate maintenance in the former Court of Chancery. The present appeal is from an interlocutory order made therein which provided that defendant pay the sum of $30.00 per week for the support of complainant and her infant children, ages 6 and 10 years respectively, together with counsel fees and suit money pendente lite.
Defendant resisted the order on the ground that there was already in existence a valid, subsisting order of the Essex County Juvenile and Domestic Relations Court made February 26, 1947 in a cause between the complainant and defendant. That order required the defendant to pay the sum of $30.00 per week for support of complainant and the two children of the marriage. The dispositive question therefore is whether having first elected to pursue her remedy in the Juvenile and Domestic Relations Court, complainant may now abandon that forum and assert her right to support in Chancery.
While the strict rules of pleading require that in order to properly raise the defense, the defendant should have interposed a motion to strike the bill for want of equitable jurisdiction, an examination of the whole record including the notice and grounds of appeal discloses that the defendant did make his objections known to the Court of Chancery. In view of the fact that he did present the issue to that Court and has raised the issue in this Court, we proceed to consider the case on the merits.
The principal reason advanced by the appellant in this Court is that the Juvenile and Domestic Relations Court has concurrent jurisdiction with the Court of Chancery and asserts the doctrine of res adjudicata.
The problem of the respective spheres of jurisdiction of the Court of Chancery and the Juvenile and Domestic Relations Court has been a troublesome one in this State. In Roarke v. Roarke, 77 N.J. Eq. 181 (Ch. 1910) Chancellor Walker held that an order for support obtained in the Juvenile and Domestic Relations Court by virtue of the Disorderly Persons Act, now R.S. 2:204-1 &c., precluded a support and maintenance order in the Court of Chancery during the life of the order. The decision was based upon the premise that the two remedies were for one and the same thing, namely, support against a deserting husband who neglects and refuses to maintain his family and the complainant having proceeded to finality must be held to have elected to stand upon that remedy. However, in Hiers v. Hiers, 132 N.J. Eq. 610 (E. & A. 1943) the Court of Errors and Appeals disapproved the doctrine of Roarke v. Roarke, supra, and ordered a support petition to be adjudicated in the Court of Chancery. That opinion was predicated upon the assumption that, whereas the primary purpose of the proceeding in the Juvenile and Domestic Relations Court was to prevent the wife and children from becoming objects of public charge, the Court of Chancery considered the station in life of the parties and their scale of living, shaping its decree to conform to such standard and the ability of the husband to pay. The opinion further elaborated upon the more elastic and efficient means of enforcement of the order to be found in Chancery. The respondent contends that the Hiers case is applicable to the instant case and dispositive thereof.
In 1946 the Legislature enacted Chapter 77 of the Laws of 1946 which statute amends and enlarges the Juvenile and Domestic Relations Act (R.S. 9:18-14). Incorporated therein is the following language:
"* * * This Court, however, shall have concurrent jurisdiction with the Court of Chancery in matters of support and temporary custody
of children as hereinafter set forth, and the procedure shall be in accordance with the rules and practice as established in this court.
"The Court shall also have jurisdiction to hear and determine in a summary manner disputes and complaints involving the domestic relation (where the gravamen of the complaint is the failure to provide support or adequate support, or desertion) and may order the adequate support of the spouse, child, children or the entire family ...