On appeal from the Essex County Juvenile and Domestic Relations Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Burling and Ackerson. For reversal and remandment -- Justice Wachenfeld. The opinion of the court was delivered by Ackerson, J.
The parties hereto are husband and wife and are living apart. The defendant husband appealed to the Appellate Division of the Superior Court from an order of the Essex County Juvenile and Domestic Relations Court discharging his rule to show cause why the provision for his wife's support contained in a prior order in this cause should not be reduced. This appeal, while pending in the Appellate Division, was certified here on our own motion.
The record before us is very meager. It shows that on the return day of the aforesaid rule to show cause no testimony was taken. The matter presented thereby was argued by the respective attorneys who have submitted a signed "statement in lieu of stenographic record" pursuant to Rule 1:2-22.
It appears from this statement that on April 2, 1947, the plaintiff filed a complaint against her husband in the Essex
County Juvenile and Domestic Relations Court alleging his failure to provide her with adequate support and maintenance. Upon hearing these charges, the court entered an order on April 14, 1947, requiring defendant to pay $16 weekly toward his wife's support and maintenance. This sum was reduced to $14 per week by an order of that court dated October 10, 1949, which order also directed the payment of arrearages totaling $48 at the rate of $1 per week. Thereafter, on November 14, 1949, the defendant obtained the aforementioned rule to show cause in an effort to further reduce the $14 weekly allowance. This rule was discharged by an order dated November 30, 1949, upon the finding that the defendant admitted that he had "at least $1,800.00 cash" in a bank, owned a 1948 Hudson four-door automobile, and was receiving $22 per week unemployment compensation. The statement further reveals that the wife is working, earning $1,800 a year, and the parties are not living together. It is this latter order refusing to reduce the $14 weekly support order of October 10, 1949, which is before us for review.
The appellant contends that the trial court erred in not modifying this support order to a nominal amount in view of his present financial circumstances. He argues that his current income does not warrant such weekly payments. It is said that in order to meet them he will be compelled to deplete his savings, sacrifice his automobile and drift into bankruptcy because his income of $22 per week, received in the form of unemployment benefits, leaves him with only $8 a week on which to live after the $14 for respondent's support is deducted therefrom. It is further argued that the trial judge based his decision on defendant's capital assets which are not income producing and erroneously disregarded his wife's yearly income of $1,800 from her employment. In opposition, the plaintiff asserts that ample facts appear to sustain the court's action under the applicable law.
Other factual matters, not appearing in the statement in lieu of record, are projected by counsel in their briefs, but we are restricted to the evidence appearing in such statement. Rules 1:2-22, 23.
The Juvenile and Domestic Relations Court, by virtue of an amendment to R.S. 9:18-14 in 1946 (P.L. 1946, c. 77, § 2, p. 268), now has concurrent jurisdiction with the Chancery Division of the Superior Court in matters pertaining to the support of a deserted spouse. Prior to this amendment it had been considered that the term "adequate support" in the statute as it then existed, pertaining to Juvenile and Domestic Relations Courts, contemplated support adequate to the aim of preventing a wife from becoming a public charge. Lasasso v. Lasasso, 1 N.J. 324, 328 (1949). Now, however, these courts, in the exercise of such concurrent jurisdiction, may base an award for support on the same obligations recognized by the Chancery Division, i.e., the common law duty of a husband to provide suitable support and maintenance for his wife in a manner commensurate with his means and circumstances.
This fundamental duty imposed by the common law upon a husband has long been recognized and enforced in this State. The duty to support and maintain his wife is the husband's primary obligation and arises out of the status of wedlock by reason of public policy recognized and enforced by civil and common law, and by the legislation incorporated in R.S. 2:50-39 (P.L. 1907, c. 216, § 26, p. 482). Such common law obligation to support continues during the existence of the marital relationship and is not dependent upon the husband's prosperity or financial vicissitudes, although strained financial circumstances or inability to work may, in a proper case, excuse a present failure to support. Royce v. Royce, 124 N.J. Eq. 469 (E. & A. 1938); Robins v. Robins, 106 Id. 198, 201 (E. & A. 1929); Sobel v. Sobel, 99 Id. 376, 379 (E. & A. 1925); 26 Am. Jur. (Husband & Wife), § 337, p. 934 et seq.; 41 C.J.S. (Husband & Wife), § 15, p. 404 et seq.; 1 Herr on Marriage, Divorce and Separation, § 336, p. 432.
As to the amount required for support, the general rule is that it should be suitable to the circumstances of the parties. The fixing of the amount is largely a matter of judicial discretion ...