This matter comes before the court on notice by plaintiff, supported by affidavit, on application:
"* * * for an order to modify the terms of the Judgment Nisi entered in this action as to the custody and support of the child of the parties to the action, on the ground that the infant child's welfare will best be served by a modification of said judgment in making provision for his enrollment and attendance at a preparatory school."
A hearing was held on the motion on May 2, 1952, at which both the plaintiff and defendant testified and were cross-examined. In addition, Arthur Rosenthal, the 13-year-old son of the parties and the subject matter of this controversy, was interviewed in chambers in the presence of counsel for the respective parties, but Arthur was not asked to testify.
It appears from the record in this case that the plaintiff and defendant were married August 12, 1937; that they separated in 1943; that the wife Nell Rosenthal instituted suit for divorce against her husband, the plaintiff Maurice Rosenthal, by petition filed May 26, 1944, but that her suit was dismissed by decree entered August 23, 1945; that the husband Maurice Rosenthal, plaintiff in the present suit, instituted suit for divorce against his wife on the ground of desertion and that a decree nisi granting him such divorce was entered January 27, 1948; and that, by the terms of the decree nisi , custody of the child Arthur was awarded to the defendant wife "until the further order of this court," with liberal rights of visitation in favor of the plaintiff father as in the said decree nisi particularly and at length set forth. The decree nisi also directed the plaintiff husband to pay his wife $38 per week for the support and maintenance of the child Arthur "until the further order of this court," the provision for maintenance to be retroactive to August, 1943, less credits against the award for maintenance for sums theretofore paid by the plaintiff father.
The proofs taken at the hearing disclosed that the boy Arthur, son of the parties to this suit, is now 13 years of age and will attain his 14th birthday on November 3, 1952;
that he attends the Bergen Street Public School in the City of Newark; that he receives good grades in his school work and is expected to graduate from the 8th grade in June of 1952 and that his mother, the defendant, plans to send him to the South Side High School in the City of Newark upon his graduation next June from the Bergen Street School. It also appears that the boy Arthur resides with his mother in a two-room and kitchenette apartment at 344 Clinton Avenue in the City of Newark, a populous neighborhood inhabited by persons of mixed racial strains, distant about two blocks from the South Side High School above mentioned.
My interview with the boy Arthur in chambers, at which counsel for both sides was present, leads me to the conclusion that the boy is intelligent, well-informed, well-mannered and well-spoken, and is a credit to both parents, particularly to the mother in whose sole custody he has been since 1943.
The proofs also disclose that the plaintiff Maurice Rosenthal, father of the boy, has a strong affection for his son; that he takes advantage of the liberal provisions of the decree nisi for the right of visitation; that he is vitally interested in the boy's happiness and future welfare; that he takes the boy with him on trips to the seashore, to Florida and other places; and that he, the father, does not limit his contributions for his son to the $38 per week provided in the decree nisi , but that, in addition thereto, he expends considerable money in providing his son with extra clothing, spending money, bicycles, baseball and gloves, trips to the seashore, to Florida and to other places.
The proofs satisfy me that both parents are very fond of their son and are vitally interested in his happiness and welfare and nothing has appeared in the conduct of the mother that would warrant the court in depriving her of his continued custody.
The boy's father, the plaintiff in this suit, desires to have his son entered, following his graduation from the 8th grade of the Bergen Street School, as a boarding student in the ...