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Daly v. Daly

Decided: January 26, 1956.

MARY CATHERINE EGAN DALY, PLAINTIFF,
v.
GEORGE J. DALY, JR., DEFENDANT



Kole, J.J.D.R.C.

Kole

[39 NJSuper Page 120] This case presents the question of when, if at all, the Uniform Reciprocal Enforcement of Support Act (N.J.S. 2 A:4-30.1 to 30.23) may be availed of against a father for the support of his children, where he

has always been a resident in New Jersey, and his wife has taken the children from their residence in New Jersey to the state in which the complaint under the act is initiated.

The act vests complete jurisdiction of proceedings thereunder in the Juvenile and Domestic Relations Court. N.J.S. 2 A:4-30.9. The duty of support enforceable thereunder in this State is that "imposed or imposable" by the law of this State, N.J.S. 2 A:4-30.2(f); 2 A:4-30.7; Coumans v. Albaugh , 36 N.J. Super. 308, 311 (Juv. Dom. Rel. Ct. 1955). The remedies under the act are in addition to and not in substitution for any other remedies. N.J.S. 2 A:4:30.3; State v. Greenberg , 16 N.J. 568 (1954). For an annotation on the act, see 42 A.L.R. 2 d 768 which, among other things, discusses its constitutionality.

It would appear, therefore, that the jurisdiction of this court of cases within the scope of that act is more comprehensive and goes beyond that conferred by the statutory provisions governing direct proceedings in this court (e.g., N.J.S. 2 A:4-18; 2 A:100-1 and 2). Cf. State v. Greenberg , 16 N.J. 568, 572 (1954). Thus, in determining a defendant's duty of support in a case properly calling for relief under that act, this court must look to the law of this State relating to the duty of support, whether such duty is imposed by statute or judicial precedent (including decisions of the Court of Chancery and the Superior Court), and is not circumscribed in this respect by other statutory restrictions on its jurisdiction. Accordingly, limitations on the court's jurisdiction in direct proceedings -- for example, to order support of a wife where there is a consensual separation (Caravella v. Caravella , 36 N.J. Super. 447 (App. Div. 1955)), or to grant visitation rights as an incident to an order of support (cf. In re Stevens , 27 N.J. Super. 130; Id. , 27 N.J. Super. 276 (App. Div. 1953)), are inapplicable to proceedings under the Uniform Reciprocal Enforcement of Support Act.

In any event, apart from the question of authority to order visitation rights, this court's jurisdiction to order support of children, even in a direct proceeding, is concurrent

with that of the Superior Court, N.J.S. 2 A:4-18, par. (b). Accordingly, resort may properly be had to precedents established as a result of proceedings in that court or its predecessor to determine the extent of a father's duty to support his children imposed or imposable under the law of this State (N.J.S. 2 A:4-30.2(f), 2 A:4-30.7).

If the parents and the children were now residents of this State and the children were residing with the plaintiff, defendant would owe the children a duty of support, even though plaintiff had unjustifiably left him and so was not entitled to support for herself. The father's duty to support his children is a continuous one and does not depend on his prosperity or on the existence or non-existence of a duty on his part to support his wife. The court must protect the children, who are innocent pawns in the marital dispute between their parents and without capacity to care for themselves. Mowery v. Mowery , 38 N.J. Super. 92, 100 (App. Div. 1955); Malkin v. Malkin , 12 N.J. Super. 496 (App. Div. 1951); Rinker v. Rinker , 3 N.J. Super. 251, 256 (Ch. Div. 1949); Danzi v. Danzi , 142 N.J. Eq. 662, 671 (E. & A. 1948); Sermuks v. Sermuks , 127 N.J. Eq. 364 (E. & A. 1940). But cf. general dictum in Turney v. Nooney , 21 N.J. Super. 522, 526 (App. Div. 1952), which appears to be contrary to the principle of the cited cases. The legal and natural duty of a father to support his children is not to be evaded by him on the ground of dissensions with his wife. A natural father would not think of doing so, and an unnatural father should not be permitted to do so. 17 Am. Jur. Divorce and Separation, sec. 693, p. 529.

And the foregoing duty of support of children on the part of a father exists under the laws of this State even where the children reside outside of the State, provided, of course, the father is subject to the jurisdiction of the New Jersey courts. Conwell v. Conwell , 3 N.J. 266, 273 (1949).

In short, the welfare of the children is the touchstone in matters of support, just as it is in matters of custody (cf. Lippincott v. Lippincott , 97 N.J. Eq. 517 (E. & A. 1925); Sheehan v. Sheehan , 38 N.J. Super. 120, 125 (App.

Div. 1955)), whether the children are residents or non-residents of this State.

Thus, the general rule is that the father's duty of support and his rights of visitation with the children to be supported are not inter-dependent. Bruguier v. Bruguier , 12 N.J. Super. 350, 354 (Ch. Div. 1951); 67 C.J.S., Parent and Child , ยง 15, p. 695; Berkley v. Berkley , 246 S.W. 2 d 804, 34 A.L.R. 2 d 1456 (Mo. Sup. Ct. 1952); In re Dubin , 201 Misc. 621, 112 N.Y.S. 2 d 267, 272 (Dom. Rel. Ct. N.Y. 1952); Almandares v. Almandares , 186 Misc. 667, 60 N.Y.S. 2 d 164 (Dom. Rel. Ct. N.Y. 1946); Broemmer v. Broemmer , 219 S.W. 2 d 300 (Mo. Ct. App. 1949).

But there are exceptions to this general rule in situations where the welfare of the children requires that they be afforded the privilege of getting to know, love, and respect both parents. The "court should strain every effort to attain for the child the affection of both parents rather than one * * * 'the greatest benefit a court can bestow upon children * * * is in insuring that the children shall not only retain the love of both parents, but shall be at all times * * * imbued with love and respect for both parents.'" Turney v. Nooney , 5 N.J. Super. 392, 397 (App. Div. 1949). To the same effect Thurman v. Thurman , 73 Idaho 122, 245 P. 2 d 810, 32 A.L.R. 2 d 996 (Sup. Ct. 1952). Where the children are in the custody of one parent, the reasonable right of visitation conferred on the other parent is a method by which the law endeavors to effect this facet of the children's welfare. Bierck v. Bierck , 123 A. 537 (N.J. Ch. 1923), not officially reported; Turney v. Nooney , 5 N.J. Super. 392, 397 (App. Div. 1949); In re Jackson , 13 N.J. Super. 144, 145, 147 (App. Div. 1951).

The policy of the law of this State against the thwarting of effective visitation rights is evident from our statutes which, generally, prohibit one parent from removing the children from this State and restrain the awarding of custody to a parent who will take the children to another state, except where the welfare of the children dictates

otherwise. N.J.R.S. 9:2-2, 9:2-3, 9:2-4. (And see N.J.R.S. 9:2-6, which protects the father's visitation rights even where by law he is not entitled to custody for failure to support for the statutory period). Sheehan v. Sheehan , 38 N.J. Super. 120, 126 (App. Div. 1955), and cases cited therein; Hubschman v. Hubschman , 24 N.J. Misc. 189, 197 (Ch. 1946), affirmed 140 N.J. Eq. 284 (E. & A. 1947).

One of the devices used by the courts to give effectiveness to a father's visitation rights, where the children have been taken out of the State by the mother to a place so distant as in effect to destroy such rights, is to reduce, discontinue or suspend an existing order for the support of the children until the children are returned or until in some other fashion the father's visitation rights can be fully protected. See Feinberg v. Feinberg , 72 N.J. Eq. 810 (Ch. 1907); Von Bernuth v. Von Bernuth , 76 N.J. Eq. 200 (Ch. 1909); Bobinski v. Bobinski , 285 App. Div. 836, 137 N.Y.S. 2 d 432 (App. Div. 1955); Beddini v. Beddini , 281 App. Div. 701, 117 N.Y.S. 2 d 511 (App. Div. 1952); In re Schwartz , 279 App. Div. 1090, 113 N.Y.S. 2 d 455 (App. Div. 1952); Goldner v. Goldner , 284 App. Div. 961, 135 N.Y.S. 2 d 337 (App. Div. 1954).

In Feinberg v. Feinberg, supra , on an application by a father to be relieved of the duty of support for a child who had been removed from New Jersey to Pittsburgh by his wife, Vice-Chancellor Leaming ordered a hearing to determine whether future support payments should be discontinued until the child should be returned to New Jersey or to a place (such as Philadelphia) where the father's visitation rights could be fully protected. He stated:

"It is manifest that * * * it would be destructive of the right of visitation to make an order permitting custody of the minor to be maintained in Pittsburgh, but it is not clear that circumstances may not demand an order for such privilege in Philadelphia."

In Von Bernuth v. Von Bernuth, supra , Vice Chancellor Howell denied a father's petition for custody and visitation rights because the children refused to go with him and

exhibited a hatred towards him instilled by their mother. However, he reduced the amount of support for the children ...


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