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In re Pavlick

Decided: March 3, 1959.

IN THE MATTER OF MRS. MARY PAVLICK, A POOR PERSON, PLAINTIFF,
v.
MRS. JEAN TERESINSKI, MRS. PATRICIA GAPONE, EDWARD PAVLICK, AND MICHAEL PAVLICK, DEFENDANTS



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

Kole

Plaintiff brings this action under N.J.S.A. 44:1-140 for support as a poor person by her two sons, Edward Pavlick and Michael Pavlick. The action, insofar as it also sought support from her two daughters, was heretofore dismissed after hearing, the court having found that they were financially unable to give any support.

Plaintiff is a widow, 65 years of age. She has no source of income other than a voluntary contribution of each of her sons of $20 per month, or a total of $40 per month, plus some incidental contributions from time to time by them. She resides in a house that she owns, which is estimated to be worth $12,000. She also owns the furniture in the house which she claims is worth about $1,800. She annually must pay $175 for taxes, $11 for water, $135 for fuel, and $37 for gas and electric. Her minimum present shelter requirements, therefore, come to $30 per month. In addition, she must buy food, milk and drugs. She has high blood

pressure, heart trouble and arthritis in her legs and knees. She is under a physician's care and is unable to work, even as a baby-sitter. The house has four rooms and bath. Two years ago she rented it to tenants for $60 per month and resided first with her son Edward and then in a rented flat. But she went back to her home because she needed a warmer place in which to live.

She estimates her minimum support needs at $100 per month. According to the county welfare board standards, her minimum needs are $82 per month.

Plaintiff testified that her son Edward works in Wright Aeronautical and her son Michael works as a chemist for Esso Standard Oil. She did not testify as to their earnings or their expenses.

Defendants moved to dismiss the complaint at the end of plaintiff's case on the grounds that (1) plaintiff had not sustained the burden of proving her sons' ability to support her, citing Glassman v. Essex County Juvenile Court , 9 N.J. Misc. 519 (Sup. Ct. 1931); and (2) plaintiff had not shown that she was a poor person, since she owned the house and furniture and should be required to sell the same and use the proceeds for support purposes. The same motion was again made at the end of defendants' case, the court having reserved decision on the first motion.

The motions to dismiss are denied.

At the conclusion of her proofs plaintiff had satisfied the burden of presenting a prima facie case of the defendants' ability to support. She proved all that could be expected of her, namely, that both sons were gainfully employed, where they were employed, and that they were earning money. She cannot be expected to prove, in this kind of proceeding, the amount of their earnings or their expenses, since these are matters peculiarly within the knowledge of defendants.

The Glassman case is not to the contrary. It did not decide the question of the proofs that plaintiff had to present to withstand a motion for dismissal at the end of her case. The court there was concerned only with the fact that there

were no proofs at all of defendants' earnings at the time of the hearing. In that case the proofs showed what the defendants' earning capacity was in May 1929, eight months prior to the hearing. The court held merely that plaintiff should have presented proofs as to their earnings at the time of the hearing, ...


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