Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
This proceeding is a contest over custody of the parties' three minor children. The appellant, Dr. Daniel C. Sheehan, and the respondent, Mary Patricia Sheehan, were married in this State on October 10, 1934. The children of the marriage are Patricia, 19 years of age; Suzanne, 15; and Diane, 13. In March 1954 a decree nisi of divorce was awarded the husband on the ground of adultery. By the judgment of divorce, custody of the children was awarded to the father, subject to reasonable visitation by the mother and custody by her for at least six weeks during the summer.
On July 1, 1954 Mrs. Sheehan obtained an order from the Superior Court granting her custody of the children during the months of July and August, subject to the condition that they not be removed from this State. As of the date of the order, the children were residing with their mother. On September 21, 1954 she filed a petition with the court asking that judgment of custody be modified and that complete custody be awarded to her. She claimed in this
petition that the children were unhappy with their father, that they were reluctant to return to his home in Newark, that during the summer they had been very happy and contented to be with her and wanted to continue to live with her. Further, that their father had neglected to show any "love, affection or interest" for them. Appended to the mother's petition were affidavits of the three children, all couched in substantially the same language, asking that they be allowed to remain in their mother's permanent custody.
The hearing on the application for change of custody was held on December 15, 1954. Mrs. Sheehan had on August 16, 1953 married the man named as co-respondent in the divorce proceeding and was then living with him in a one-family house in a desirable residential neighborhood of Bethesda, Maryland. She testified that her husband was willing that the children live there with them. She agreed to pay the expenses of an investigation of her home by the Essex County Probation Department should the court be disposed to grant custody to her.
Suzanne Sheehan testified that she was content when living with her mother, preferred living with her to living with her father and that she had ill feeling toward him because "he has put us through unnecessary aggravations and troubles." At this point in the direct examination, counsel for Dr. Sheehan interrupted and asked the court for a five-minute recess. Upon resumption of the trial he represented to the court that Dr. Sheehan agreed:
"* * * that the custody of the children should be modified and the order should provide that the custody of the children of this marriage be with the mother. The father shall have the right of unlimited visitation; * * *."
Further, the father agreed to pay $100 per month for the support of each of the two younger girls and to pay Patricia's tuition and maintenance at college.
Mrs. Sheehan was recalled and agreed to the settlement offered by Dr. Sheehan's counsel, including a requirement that she post a $1,000 bond to secure the terms of the agreement.
Immediately thereafter, Dr. Sheehan was called and his counsel, after some preliminary questions, asked:
"Q. The proposition which I made to the Court and which I make now to you is this: You do not desire to contest the matter of custody. While it was with you under the judgment nisi , now it will be with your ...