On appeal from the Superior Court, Chancery Division, Essex County, pursuant to certification.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
This case involves the custody of minor children. It is an appeal from an order entered on March 30, 1952, which will be hereafter referred to.
The plaintiff, Mrs. Henderson, and defendant were married in Canada on September 3, 1940 and have two children, one born in 1943 and the other in 1946. The family lived together in Montreal, Canada, except for a short time during the last war, until marital difficulties were encountered and the children, in October 1949, were removed to their maternal grandparents' home in Montclair, New Jersey, by their mother, apparently against their father's will. In December, 1949, Mrs. Henderson left Montreal and moved to her parents' home where she and the children have since resided.
In September 1949 Mrs. Henderson instituted in the Superior Court of the Province of Quebec a separation suit against her husband in which she sought the permanent custody of the children. During the pendency of that suit Mr. Henderson filed a similar suit in the same court likewise seeking the custody of the children. Mrs. Henderson's petition for a separation was dismissed and it was while this defendant's suit was still pending that the children were removed from Montreal to Montclair. Defendant's suit for separation and custody of the children went to final hearing and on September 8, 1950 the Superior Court of the Province of Quebec entered final judgment holding: (1) that the defendant in the instant suit, the plaintiff there, was well qualified to bring up the children; (2) that the children had been removed from their home in Montreal without authorization; (3) that the parties be separated as to bed and board; and (4) that Mr. Henderson be granted the exclusive custody of the children with a provision that they be permitted to reside with their maternal grandfather until July 1, 1953, or until his death, whichever occurred first, during the time their school was in session and while he was at his summer cottage on Cape Cod.
The present action was instituted in the Superior Court on June 11, 1951 by complaint, in which Mrs. Henderson and her parents are joined as party plaintiffs, and order to show cause. The plaintiffs sought the permanent custody of the children; protection of a restraint in the maintenance of their control and custody; sufficient surety to be given by the defendant that the children would not be removed from the jurisdiction; and the payment of counsel fees, suit money and costs in the event he contested the action. The order to show cause to that effect was issued on the ex parte application of the plaintiff-wife and served upon the defendant personally in Montreal, Canada.
On June 18, 1951, one week after the order to show cause in the present action was entered, a supplementary petition in the defendant's separation suit in Canada was filed, apparently on behalf of the plaintiff-wife here, seeking a modification of the judgment of that court to the extent that the plaintiff be given permanent custody of the children subject to defendant's rights of visitation. No action was ever taken on this supplementary petition and the plaintiff asserts it was filed without authorization from her. On June 30, 1951, pursuant to an application made to the Federal Parliament of Canada and subsequent to the entry of the judgment of the Superior Court of the Province of Quebec, the defendant was granted a final decree of divorce, and thereafter on July 13, 1951 he re-married and is now living in Montreal with his second wife and her one child.
On the return day of the order to show cause issued in the instant suit the defendant appeared by counsel, made what amounted under the old rules to a special appearance (see Rule 3:12-2), and moved to dismiss the complaint and order to show cause on the ground that the Superior Court was without jurisdiction of either the subject matter or the person, and the plaintiff applied to the court for a continuation of the restraints contained in the order to show cause and asked the court to award custody of the children to the plaintiffs until the further order of the court and for an
order requiring the defendant to pay the plaintiffs' counsel fee. At the conclusion of the argument the court reserved decision and directed counsel to submit briefs on the question of jurisdiction. This was done, supplementary affidavits and papers were filed and on January 18, 1952 the advisory master handed down his conclusions. After a hearing as to its terms the order appealed from was entered. It provided: (1) that the defendant's motion to dismiss the plaintiffs' order to show cause and to dismiss the complaint for lack of jurisdiction be denied; (2) that the care and custody of the infant children be awarded to the plaintiff and her parents until the further order of the court, subject to reasonable visitation by the defendant within this State; (3) that the defendant desist and refrain from taking custody of the children from the plaintiff and removing them from the State until the further order of the court; (4) that the defendant have 20 days within which to file an answer to the complaint; (5) that the case proceed to final hearing; and (6) that the application of the plaintiffs for counsel fees and costs be reserved until final hearing.
The appeal was taken to the Appellate Division pursuant to Rule 4:2-2(a)(3) which permits appeals to be taken from orders, whether or not interlocutory, determining that the court has jurisdiction over the subject matter or the person. Pending its hearing in the Appellate Division we certified the appeal on our own motion.
Appellant raises first the point that the Superior Court of this State lacked jurisdiction of the subject matter of the cause. It cannot be seriously questioned that the court had jurisdiction, and this the appellant admitted on the argument before us but asserted that it should not have been exercised under the facts and circumstances of this particular case. This argument is based on a two-fold proposition, first, that the final judgment of the Canadian court granted custody of the children to the defendant here and ...