[48 NJSuper Page 208] Plaintiff seeks support in this action from her husband, the defendant, for herself and her two minor children by the defendant, claiming that his present support is inadequate. Defendant contends the amount she
is now getting is adequate and that her refusal to rid the household of her child (Kathleen, age 7) by another constitutes such desertion by her as to warrant denial of any support for her. In support of the latter contention defendant relies on Schneider v. Schneider , 25 N.J. Misc. 180, 52 A. 2 d 564 (Ch. 1947).
The parties reside in the same household, but since July 29, 1957 they have slept in separate rooms. Since August 1, 1957 plaintiff has not prepared meals for defendant; he eats at his mother's. His mother owns the house in which the parties reside but has a separate apartment therein.
The plaintiff and defendant have been married four years. They have two children of their own -- Harold Jr., age 3 1/2 years, and Robert, a child with cerebral palsy, age 2 years. At the time of the marriage defendant knew that plaintiff had Kathleen and that Kathleen would reside with them. Nevertheless, he married plaintiff. There is a conflict as to when defendant first objected to Kathleen's continuance in the household: plaintiff claims that he first objected in late August 1957, in a letter she received from his attorney, who was also the attorney for the husband in the Schneider case; defendant claims that he has been objecting since one year after their marriage.
Even if defendant's claim be deemed to be in accord with the fact, however, it cannot aid him. The Schneider case merely holds that a wife cannot get separate maintenance where she insists, as a condition of residing with her husband, that he support her child by another as a member of the household. Advisory Master Van Winkle specifically refused to consider the husband's further contention that he was justified in refusing to receive the child into the marital home because its presence would jeopardize the harmony of the marital relationship. All the case held was that a husband could not be legally compelled to accept the loco parentis duty of support of such a child.
It should be noted that decisions in other jurisdictions appear to be directly opposed to the Schneider case. They hold the husband chargeable with constructive desertion under
such circumstances. 17 Am. Jur., Divorce and Separation , § 119, p. 335; Williamson v. Williamson , 183 Ky. 435, 209 S.W. 503, 3 A.L.R. 799 (Ct. App. 1919); Rigsby v. Rigsby , 82 Ark. 278, 101 S.W. 727 (Sup. Ct. 1907); Friend v. Friend , 53 Mich. 543, 19 N.W. 176 (Sup. Ct. 1884); Rosenbaum v. Rosenbaum , 206 Ark. 865, 177 S.W. 2 d 926 (Sup. Ct. 1944).
In the Williamson case, supra [183 Ky. 435, 209 S.W. 505], the husband accepted his wife's two children by a former marriage as part of the household at the time of the marriage. Thereafter he developed an aversion to the children and advised his wife that he would only continue to live with her if she got rid of the children. She left him, took the children and instituted an action for support. An award of support was affirmed on the ground that the wife was justified in leaving by reason of her husband's cruelty and constructive desertion. The Court of Appeals of Kentucky said:
"It would be hard to conceive of treatment that would be more cruel and inhuman by a husband toward a wife than the offer to live with her and give her a home only upon condition that she would get rid of her infant children by a former marriage, whom he knew were entirely dependent upon her when he married her, and agreed she might bring with her to his home."
In answer to the contention that, since the husband was under no legal obligation to support his stepchildren, his refusal to provide a home for them was justified, the court said:
"* * * we do not deem it necessary, for the purposes of this case, to consider this question, because it is not involved here. Assuming that he was not liable for their support, we are nevertheless convinced their mother was justified in leaving her husband upon the ground of cruel and inhuman treatment, when he made it a condition to a ...