Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d. Jayne, J.A.D. (dissenting in part).
[37 NJSuper Page 354] This action was brought by Mrs. Jean Curley against her former husband, Kryan Curley, from whom she had been divorced, to secure support for herself and three infant children, two of them born of their marriage and the third, Judith, an illegitimate child. After their divorce, which had been secured in California in 1949, Mr. and Mrs. Curley cohabited in New Jersey, and Judith was born. Mr.
Curley does not deny paternity; in fact in the statement of facts appearing in his brief here, it is said that Judith was born of this cohabitation.
Subsequently Mrs. Curley brought an action in the Bergen County Juvenile and Domestic Relations Court and obtained an order requiring Mr. Curley to pay her a lump sum of $300 a month for the support of herself and her children. Then she commenced this action in the Superior Court, on the theory that the Bergen County Juvenile and Domestic Relations Court lacked jurisdiction because the Curleys "were not husband and wife."
The Superior Court awarded Mrs. Curley, pendente lite , $150 per month for the support of herself and $75 per month for each of the three infants. 34 N.J. Super. 257. Mr. Curley appeals, raising three questions.
The first question goes to the insufficiency of the affidavits furnished below. On an application by a wife for the support of herself and her children pendente lite , she is obliged to establish, among other things, the extent of their needs, Streitwolf v. Streitwolf , 58 N.J. Eq. 570, 574 (E. & A. 1899), and the extent of her income and means. Verbeeck v. Verbeeck , 93 N.J. Eq. 17, 21 (Ch. 1921); Westerfield v. Westerfield , 36 N.J. Eq. 195 (Ch. 1882); Herr , 10 N.J. Practice 364 (1950).
From the affidavits here, it appears that Mr. Curley is paying Mrs. Curley $300 a month; further that --
"I [Mrs. Curley] have been employed in a clerical capacity * * * but * * * must give up this employment to care for my children.
I have no property of any kind. I live with our children in an apartment for which I pay $92.00 a month. It is absolutely necessary to obtain a private home. One of the children needs extensive orthodontical work, the estimated cost of which is $4,000.00."
This -- all that the court had before it on the point -- is plainly an insufficient statement as to the needs of Mrs. Curley and her children and a somewhat thin statement as to her earnings and income. We do not see how a court can say on the strength of these affidavits that the $300 a
month which is being voluntarily paid by Mr. Curley does not meet the needs of herself and her children pendente lite and that $75 in addition should be forthcoming.
The allowance of support pendente lite is a matter resting in the discretion of the court below, Lasasso v. Lasasso , 1 N.J. 324, 329 (1949); Waltz v. Waltz , 16 N.J. Super. 119, 123 (App. Div. 1951). But manifestly here the affidavits furnished the court with an inadequate basis on which to exercise its discretion. The order allowing support will have to be reversed.
The second point argued here presents a novel constitutional question; but, we conclude, we are obliged to deal with it, as, upon the remand of the case, the parties will straightway be confronted with it. Borawick v. Barba , 7 N.J. 393 (1951) holds that Art. VI, Sec. III, par. 2 of the New Jersey Constitution does not invest the Superior Court with jurisdiction over a cause of action of a mother against a father for the support of their illegitimate child; such a cause is cognizable only in certain inferior courts. N.J.S.A. 9:16-2, 9:16-3, 9:17-1. We are of course governed by that holding. But the question here is different. Here we are called upon to consider whether another provision of the Constitution, Art. VI, Sec. III, par. 4, clothes the Superior Court with power to dispose of the entire controversy before us by reason of the fact that (we might say) two of the three matters in dispute between the parties lie within that court's competence.
The first of these matters is Mrs. Curley's claim for her own support. This claim is cognizable in the Superior Court (see N.J.S. 2 A:34-23, expressly applicable where a divorce has been obtained in another state; see also 2 A:34-8), but not in a Juvenile and Domestic Relations Court. Cf. Hughes v. Hughes , 125 N.J. Eq. 47 (E. & A. 1939); Caravella v. Caravella , 36 N.J. Super. 447 (App. Div. 1955); N.J.S. 2 A:4-18.
Second, there is Mrs. Curley's claim for the support of the illegitimate child, Judith. This (as stated) is cognizable in certain inferior courts, ...