Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
This appeal challenges as excessive the provisions of the judgment nisi entered in favor of plaintiff wife in the Chancery Division, awarding $10 a week for the support of each of the two children of the marriage in her custody, directing that defendant also pay her the sum of $5.00 a week in reduction of the arrears in support payments fixed by a previous order, and further ordering him to pay plaintiff's attorneys a $300 counsel fee.
On May 15, 1954 plaintiff brought an action for divorce against defendant on the ground of adultery. He filed an answer by way of general denial and counterclaimed for divorce on all three grounds permitted under the statute: desertion, adultery (illicit acts with five different corespondents on various dates were alleged), and extreme cruelty. Plaintiff promptly denied the charges. She subsequently filed a notice of motion, with affidavits, seeking custody of the two children -- a daughter of 14 and a son of 12 -- pending the litigation, and support for herself and the children pendente lite , together with counsel fees, suit money and costs. At this time the daughter was living with plaintiff, and the son with defendant. The application for custody of both children was based on the moral unfitness of defendant's home where his paramour was spending much of her time. Defendant opposed the application with his own and his daughter's affidavits, whereupon plaintiff in turn filed an affidavit meeting the charges contained in defendant's affidavit, and also an explanatory affidavit by her daughter. It was in this posture of the case, and after oral argument, that the Chancery Division entered the first of several interlocutory orders, dated September 7, 1954, awarding the custody of the daughter to plaintiff, directing defendant to pay $12 a week for her support pendente lite , ordering that in the event the parties agreed to the son also
being in plaintiff's custody the support was to be increased to $20 a week, and further ordering defendant to pay $100 counsel fee and costs. It will be noted that from this time on alimony for the wife disappears as a factor in the case.
Defendant made no effort to comply with the support order, and it was not until he was held in contempt on December 6, 1954 that he paid the $120 support money then in arrears and the $100 pendente lite counsel fee. The December 6 contempt order awarded custody of the son to plaintiff and fixed the support for the two children in her care at $20 a week. Available to the court at that time was a report of the Probation Department of Monmouth County stating that defendant's "girl friend" on occasions stayed overnight in his home located on his employer Bedle's farm, and that her daughter was living at the place.
Plaintiff was again obliged to bring contempt proceedings against her husband for failure to comply with the December 6, 1954 order. On March 25, 1955 the Chancery Division entered its order fixing support arrearages at $128, directing defendant to pay $5 each week in reduction of this sum and in addition $15 a week pending final hearing for the support of the two children in plaintiff's custody, and awarding plaintiff's attorneys a $35 counsel fee on the contempt application. At that time defendant by his affidavit represented that he had living expenses of $118 a month, and in addition had to pay $10 to $20 a month on account of loans made by his employer and by a friend.
Despite the variety of serious charges he had brought against his wife, defendant chose to withdraw his counterclaim prior to final hearing, which was held on April 12, 1955. Defendant appeared by his attorney, but did not himself take the stand or offer any witnesses. At the conclusion of the hearing the court found that plaintiff had fully supported the allegations of her complaint. After extended colloquy, in the course of which the trial court explored the several items of living expenses which defendant said he had to meet regularly, as well as his income and his claim that he could do nothing but farm labor, the judge stated
that he would allow $10 a week support money for each child, require defendant to pay $5 a week on the accumulated arrears, and allow plaintiff's attorneys a final counsel fee of $300. The judgment nisi granting plaintiff a divorce on the ground of adultery contains these provisions. This appeal followed.
It appears that plaintiff's attorneys moved to hold defendant in contempt for failure to comply with the terms of the judgment nisi as to counsel fees and support payments for the children. The trial court held defendant in contempt for failure to pay the fees and directed that a warrant issue. A stay was granted by a single judge of the Appellate Division until July 5, 1955, when the Appellate Division en banc granted a stay of the provisions of the judgment nisi relating to counsel fees only. Defendant through his attorney has since paid $50 of the counsel fee award.
The duty of parents to maintain, protect and educate their children was recognized at common law and was said to stem from the law of nature. Osborn v. Allen , 26 N.J.L. 388, 391-392 (Sup. Ct. 1857); 1 Bl. Comm. 447, citing Puffendorf's Laws of Nature , and Montesquieu. This benign principle of the natural law has been considered as something less than adequate and no more than the statement of a moral principle, and this for no less a reason than Blackstone's own declaration that "No person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident; and then is only obliged to find them with necessaries, the penalty on refusal being no more than 20 s. a month." 1 Bl. Comm. 449. See in this regard, Greenspan v. Slate , 12 N.J. 426, 430-431 (1953). Indeed, in Freeman v. Robinson , 38 N.J.L. 383, 384 (1876), our former Supreme Court flatly stated that the duty of a father to provide maintenance for his children is a "mere moral obligation. Except in cases within the statute of Elizabeth, and by the procedure there pointed out, he is not legally compellable to perform this duty." The court in that case did not, however, cite the equity view previously set out in
Tomkins v. Tomkins , 11 N.J. Eq. 512, 517-518 (Ch. 1858), which applied the prevailing American view as enunciated in Van Valkinburgh v. Watson , 13 Johns (N.Y.) 480, 7 Am. Dec. 395 (Sup. Ct. 1816), that a parent is bound to provide his infant child with necessaries, and if he neglects to do so, a third person may supply them and charge the parent with the amount. And see Alling v. Alling , 52 N.J. Eq. 92, 96, 108 (Ch. 1893); cf. In re Ganey , 93 N.J. Eq. 389 (Ch. 1922), affirmed o.b. 94 N.J. Eq. 502 (E. & A. 1923), and Cohen v. Cohen , 6 N.J. Super. 26 (App. Div. 1949), which relies on the Freeman and Ganey cases.
Freeman and Ganey were criticized in Greenspan v. Slate , where the Chief Justice, after analyzing the cases, concluded that:
"In equity, the parents' obligation to support and educate their children is much more than a principle of natural law; it is an obligation enforced wherever equity has jurisdiction on equitable principles in the light of the facts of the individual case. 'The physical ability of the child to earn its bare food and clothing is not the test or gauge in this court of a parent's duty to support and educate it' * * * nor does the fact that the child has an estate of its own excuse the parent from all obligation to it. In determining the ...