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Gierkont v. Gierkont

Decided: July 26, 1957.


Francis, Stanton and Leyden. The opinion of the court was delivered by Francis, J.A.D.


This appeal is from an order of the Domestic Relations Court requiring appellants Joseph Gierkont, Jr. and Helen Tintle, who are brother and sister, to contribute weekly $9.10 and $7.30, respectively, toward the support of their indigent father.

The record discloses that since October 1, 1956 plaintiff, Joseph Gierkont, Sr., has been receiving $74 monthly through the Essex County Welfare Board as a disabled indigent person. On August 22, 1956 Gierkont, Sr. filed a complaint in the Juvenile and Domestic Relations Court charging his wife Sophie and his two children with failing to support him. The jurisdiction of the court to entertain such an action when instituted by the indigent personally was challenged in the trial court and again here. However, the argument has no substance. N.J.S.A. 44:1-140 supplies the authority. It says:

"The * * * children * * * of a poor, old, blind, lame or impotent person or other poor person * * *, shall, if of sufficient ability , at * * * their charge and expense, relieve and maintain the poor person or child in such manner as the overseer of the poor shall order or the court upon its own initiative or the information of any person, after notice to the person or persons chargeable and hearing the overseer, may so order." (Emphasis ours.)

And see Montwid v. Montwid , 11 N.J. Misc. 648 (Sup. Ct. 1933); Glassman v. Essex County Juvenile Court , 9 N.J. Misc. 519 (Sup. Ct. 1931); N.J.S. 2 A:4-18(c).

It will be observed from the phrase emphasized that the statutory burden of support may be imposed only if the children involved are of "sufficient [financial] ability."

The assessment against the plaintiff's daughter, Mrs. Tintle, is $7.30 weekly. The testimony shows that she is married and has two children. She has not been employed since her marriage but has lived with and been dependent entirely upon her husband. She had no income of her own. At the time of the first hearing it appeared that a bank account existed in her name containing $4,700. The uncontradicted proof is to the effect that the money belonged to her husband, came from his earnings and was merely kept in her name. Before the final hearing the husband, asserting his ownership of the fund, withdrew it and applied it in reduction of the mortgage on the home in which they resided. This property was purchased by the husband for $9,000. Status as a veteran enabled him to acquire title without any down-payment. The full price was represented by a mortgage. With the $4,700 amortization, the balance thereon was about $3,000. Title is held by the husband and wife as tenants by the entireties.

Under these circumstances, can a married daughter be compelled to contribute to the support of her indigent father? The answer depends on whether she can be said to be of "sufficient ability" to do so. Those words have not been construed in our State. However, in our neighboring state, New York, they signify that the person sought to be charged has sufficient for his own needs and something over and above. In re Miller's Estate , 64 N.Y.S. 2 d 258 (Surr. Ct. 1946). And in further explanation it has been said that he is entitled not only to enough for the immediate support for himself and his dependents but also to reasonable savings for sickness and old age. Matter of Diele's Estate , 187 Misc. 196, 61 N.Y.S. 2 d 397 (Surr. Ct. 1946). Certainly there would be less inducement to save a reasonable sum for old age or perhaps even for the education of children if the fund could be wiped out if public assistance is rendered to a parent.

In the present case Mrs. Tintle did not own the bank account. Her only asset is a tenancy by the entireties with its incidental right of survivorship, in the home provided by her husband for the family. That estate is not sufficient to establish ability on her part to support her father. Kullman v. Wyrtzen , 266 App. Div. 791, 802, 41 N.Y.S. 2 d 682 (App. Div. 1943); Department of Public Assistance of the Commonwealth v. Sharago , 381 Pa. 74, 112 A. 2 d 162 (Sup. Ct. 1955). Moreover, the effect of the order under review is to place the burden of support on the indigent's son-in-law who has neither common law nor statutory obligation to do so. Bradley v. Zimmerman , 13 N.J. Misc. 580 (Sup. Ct. 1935). Accordingly, the judgment against the daughter is reversed. Cf. In re Claiborn's Estate , 51 N.Y.S. 2 d 543 (Surr. Ct. 1944); Matter of Bauer , 266 App. Div. 816, 41 N.Y.S. 2 d 626 (App. Div. 1943), affirmed sub nom. Bauer v. Byrne , 291 N.Y. 711, 52 N.E. 2 d 597 (Ct. App. 1943); Calhoun v. Calhoun , 256 App. Div. 672, 11 N.Y.S. 2 d 415 (App. Div. 1939); Town of Winchester v. Town of Burlington , 128 Conn. 185, 188, 21 A. 2 d 371 (Sup. Ct. Err. 1941).

This brings us to the issue of the legal propriety of the judgment against the son requiring the weekly contribution of $9.10 toward the maintenance of his father. He earns about $100 a week and no proof was adduced to demonstrate inability to meet the order.

The contention advanced for reversal is that since his father abandoned and deserted him during minority, the law excuses him from any duty of support now. Although the language of the statute relied on, N.J.S.A. 44:1-141, gives rise to some doubt as to whether it applies in a situation where the order for maintenance was issued by the Domestic Relations Court and not by the Director of Welfare, the parties and the trial court have treated it as applicable. In our view also the Legislature intended to ...

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