On appeal from Gloucester County Court of Juvenile and Domestic Relations.
For affirmance -- Chief Justice Vanderbilt, and Justices Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justices Heher and Oliphant. The opinion of the court was delivered by William J. Brennan, Jr., J.
The jurisdiction of the Gloucester County Juvenile and Domestic Relations Court to enter a support order under the Uniform Desertion and Nonsupport act, N.J.S. 2 A:100-2 et seq., in favor of a wife living in Gloucester County against a husband resident in Camden County, is the single question raised by this appeal which was brought here of our own motion while pending in the Appellate Division.
The defendant husband appeared before the Gloucester County Court on October 16, 1952, in response to an order to show cause why a support order should not be granted upon his wife's sworn complaint, filed September 6, 1952, charging, not desertion, but the alternative ground under the act, State v. Bruneel, 14 N.J. 53 (1953), that from July 29, 1952 he "wilfully refused and neglected" to support her, "she being in necessitous circumstances." The wife had moved to Gloucester County on July 29, 1952, to live with her sister, leaving her husband at their Camden County home.
The parties arrived at a settlement on October 16 during the course of the hearing. They endorsed their consents to
the order under attack which, dated October 16, 1952, recites that the husband and wife "having reached an agreement as to the amount of a weekly order to be paid for the support and maintenance" of the wife, the defendant "shall pay the sum of $15.00 weekly" for her "support and maintenance" to the chief probation officer.
At the close of the hearing of October 16 the court, according to the parties' stipulation, "set November 6, 1952 at 1:30 P.M. as the date for a formal hearing in the matter." It further appears from the stipulation that when the parties appeared on November 6 "the defendant through his counsel declined to proceed with a formal hearing at the time stated and at the time signed a consent order" agreeing to pay $15 weekly "to the Chief Probation Officer" for the support of his wife. But there is no order dated November 6 in the official court record. The only support order filed is that of October 16, and as that is the order to which the subsequent proceedings to vacate are expressly addressed, that order would appear to be the only support order which was entered in the proceeding. We conclude that what happened on November 6 was that the order of October 16, which was a temporary or pendente lite order authorized by N.J.S. 2 A:100-3, was continued in effect by mutual consent upon the understanding that it was to be treated as a permanent order for future support authorized by N.J.S. 2 A:100-4.
The several sections, pertinent to our inquiry, of the uniform act adopted in New Jersey with some modifications 37 years ago, L. 1917, c. 61, now read:
"2 A:100-2. Desertion or nonsupport of wife or children in destitute or necessitous circumstances
"Any husband who deserts or willfully neglects or refuses to provide for the support and maintenance of his wife, in destitute or necessitous circumstances, or a parent who deserts or willfully neglects or refuses to provide for the support and maintenance of his or her minor child or children, in destitute or necessitous circumstances, is guilty of a misdemeanor. If a fine be imposed, the court may direct the same to be paid in whole or in part to the wife, or to the guardian, custodian or trustee of said minor child or children.
"2 A:100-3. Order of support pendente lite
"At any time after a sworn complaint is made charging an offense under section 2 A:100-2 of this title, and before trial, the court having jurisdiction may enter such temporary order as may seem just, providing for the support of the wife or children, or both, ...