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Cahen v. Cahen

Decided: October 21, 1957.


Clapp, Jayne and Hughes. The opinion of the court was delivered by Hughes, J.A.D.


[47 NJSuper Page 142] Marital discord generated by differences of opinion as to the management of household finances, a not unfamiliar phenomenon, brought

the present litigation before the juvenile and domestic relations court, and this appeal is taken from its order of April 5, 1957 requiring defendant-appellant to pay $100 a week for the support of his wife and child. The learned court predicated its order upon the jurisdiction supposedly possessed by it under N.J.S. 2 A:4-18, and in apparent reliance upon the decision of this court in Mattox v. Mattox , 43 N.J. Super. 111 (App. Div. 1956). The latter ruling broadly and properly, we still are convinced, construed that statute in such manner as to equate with the conceptual term "desert" a willful failure to provide food, or other basic necessities of life over and above mere shelter, the parties living together in the same household. In this respect, the court distinguished other more conventional connotations of the terms desertion (N.J.S. 2 A:34-2), abandonment and separation (N.J.S. 2 A:34-24).

The statute, under which the instant complaint was framed, reads:

"2 A:4-18. Concurrent jurisdiction; contempt.

The juvenile and domestic relations court shall also have jurisdiction concurrently with such other courts as may have jurisdiction over the matter, to hear and determine in a summary manner disputes and complaints:

e. Involving the domestic relation, where a husband or father deserts his wife or child even though they continue to live in the same household, in which case the court may order adequate support of his wife, child or family. * * *"

Although the appeal directs our attention to many other factors, we need but consider the factual record for purpose of decision, for its analysis displays a misconception clearly invalidating the order appealed from. The complaining wife lived with her husband and their 12-year-old daughter in a home jointly owned by these adult parties, and of the value of about $27,500. The husband, employed in an executive capacity with a large industry, earned $15,000 per year, having progressed during the past several years, in intermediate stages, from previous earnings of

$12,000 per year. When purchasing the home in 1949 a mortgage of $10,000 was necessary, which has since been reduced to $300. Aside from contributions amounting to about $1,000 by the wife incident to the purchase and improvement of this property, the providence and industry of the husband apparently have resulted in its being practically freed of mortgage indebtedness at the present time. Additionally, he carries $20,000 of life insurance, the beneficiaries being his wife and daughter, and has accumulated some $8,000 in investments producing an annuity income of several hundred dollars a year. The testimony indicated that aside from his personal expenses, his fixed cost for the running of the household and for the reduction of the mortgage indebtedness approximated $650 a month. The testimony is in some confusion as to his net monthly income after taxes, which apparently is somewhere between $800 and $900. The wife does part-time teaching several hours a week and the monthly income of approximately $100 is retained by her for her personal use.

This husband was accustomed to pay all family expenses directly except that beginning in April 1954, he handed his wife $200 each month, from which she was to pay for food, telephone and a maid, or domestic helper, for one day a week, the residue representing her incidental expenses. This amount was increased to $220 in November 1956. Additionally, it was testified that he would give her money for extraordinary expenses such as hairdressing, shoe repair and the like and he also maintained charge accounts in a number of local stores and New York stores for clothing. In December 1956, when he took over the payment of household expenses intended to be covered by the $220 previously mentioned, on the supposition that he could effect general economies, he opened a charge account at a local food market, and he testified that for the four months of such experimentation he had held these household expenses to an average of $162 per month. Additionally, the evidence of both parties was in agreement that during that interval he had given his wife, by way of "allowance," sums varying

from $25 to $40 per month. The appellant testified with emphasis that since the date of his marriage to the present time, he has been entirely willing to provide reasonable and proper support for his family. It is apparent that the militant attitude taken by him with respect to household expenses reflects an attitude of frugality typified by his testimony that "I want to save at ...

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