Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
Plaintiffs appeal from that part of the judgment nisi entered in favor of the defendant on March 26, 1952 awarding custody of Jacklyn Marie Grove, the infant child of the marriage, to defendant. Jacklyn is now 8 1/2 years old. After the filing of the notice of appeal, the attorney for the plaintiff-father John Howard Grove obtained an order dated August 21, 1952, consented to by the attorneys for the defendant and the intervenor Edna S. Grove, who is plaintiff's mother, granting rights of visitation of the child to the father from Saturday 10:00 A.M. until Sunday 9:00 P.M. every week.
The child had been in the custody of the defendant-mother since April 1949. In December 1950 defendant permitted her mother to take the child on a visit to Florida. Jacklyn had been suffering from colds following a tonsilectomy operation, and defendant thought that the Florida climate would improve her health. The plaintiff and his mother then went to Florida where, on December 30, 1950, he filed a petition for a writ of habeas corpus against the maternal grandmother. After a hearing, the Florida court ordered the grandmother to surrender the custody of the child to the father, to be
returned to New Jersey "where the permanent custody of the said child shall be finally determined in the Court of Competent Jurisdiction in the State of New Jersey." Upon her return to New Jersey, Jacklyn was left in the custody of the paternal grandmother.
Before leaving for Florida, plaintiff filed a complaint in the Superior Court, Chancery Division, demanding that the maternal grandmother be restrained from keeping Jacklyn in Florida and compelled to return her to New Jersey, and that custody be awarded to the paternal grandmother, Edna S. Grove. The complaint alleged that the defendant mother was unable to care for the child properly, and that the maternal grandmother was a person of "ambulatory tendencies" and "a bad influence for and not in the best interests of the child." The mother answered denying the charges and, in turn, charged the father with carrying on a clandestine affair with a certain woman. In reply, plaintiff charged his wife with becoming involved with certain men. This custody action still awaits trial.
Thereafter plaintiff, on October 8, 1951, filed his complaint for divorce on the ground of defendant's desertion. Judgment was demanded dissolving the marriage between the parties and awarding plaintiff custody of the child. By her answer and counterclaim, defendant denied the desertion and demanded judgment of divorce because of plaintiff's adultery with a named co-respondent and his extreme cruelty. The counterclaim also demanded judgment awarding custody of the child to the counterclaimant. Plaintiff's mother, Edna S. Grove, then moved to be permitted to intervene in the divorce action on the ground that both parents were "unfit persons morally to have custody of the child." An order permitting intervention was entered January 11, 1952. The intervenor's complaint demanded judgment awarding custody of the child to her because the parents "utterly failed, neglected and refused" to maintain and support the child. The answer of the defendant-mother to intervenor's complaint
denied the allegations thereof and set up certain defenses.
After taking the testimony of the husband, wife, intervenor and their witnesses, the court entered a judgment dismissing the divorce complaint and the intervenor's complaint, and granting a divorce to the wife on her counterclaim. Custody of Jacklyn was awarded to the defendant-mother, with right of visitation in the plaintiff, and plaintiff was ordered to pay defendant $25 a week for the support and maintenance of the child, together with counsel fees.
Appellants attack the custody award because of the pending action for custody "under the doctrine of parens patriae ," which had not been consolidated with the divorce action and which alleged numerous grounds of unfitness against the defendant-mother and the maternal grandmother. This contention is without merit. The divorce complaint, the counterclaim and the intervenor's complaint all raised the question of custody, and the court took testimony relating to the fitness of the several parties. Custody was squarely in issue in the divorce action. The fact that the custody action instituted by the father at the end of 1950 was not consolidated with the divorce action could not and does not vitiate the award of custody in the latter action. Concededly, no motion was ever made to consolidate the parens patriae custody suit with the present action. Unquestionably, the reason for this failure was that the precise issue of custody was presented for determination in the divorce action. The trial court cannot be charged with error for failing to consolidate the actions when it was never requested to do so.
Appellants next argue that the award of custody to the mother was erroneous because the maternal grandmother "surreptitiously, without consent or custodial authority, removed the child from its legal domicile in the State of New Jersey to the State of Florida." There is no substance in the argument. The trip to Florida was not surreptitious. Even if it were, the ...