Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant, by court-assigned counsel, appeals from a Chancery Division order entered by a county judge specially assigned to this case, sentencing her to an indefinite jail term for contemning the visitation provisions of a judgment nisi entered on March 23, 1956, suspending that sentence, and placing her on probation for a period of five years. Her probation was made subject to seven specific conditions, all relevant to the visitation rights. The order further provided that defendant's failure to comply with its terms would result in an immediate revocation of probation, with reinstatement of the sentence and defendant's commitment to jail forthwith. The Monmouth County Probation Department was to supervise the probation.
Plaintiff's judgment nisi awarded him certain rights of visitation with the three children of the marriage, custody being given to defendant. The sequence of events following upon the entry of that judgment is set out at length in our opinion in Lathrop v. Lathrop , 50 N.J. Super. 525 (App.
Div. 1958). In June 1956 plaintiff moved to hold defendant in contempt for failure to allow him visitation. After a series of hearings the county judge (temporarily assigned to hear matrimonial matters in the vicinage) on October 11, 1956 found defendant guilty of civil contempt. Sentence was postponed pending investigation by the Monmouth County Probation Office. The parties appeared before the court on January 11, 1957, at which time the judge announced that he was imposing a 30-day jail term for contempt of court, but was vacating execution thereof and placing defendant on "modified probation" for two years.
When plaintiff subsequently again complained that his visitation rights were being denied him, the court directed an investigation by the probation department. Defendant refused to speak to the probation officer, with the eventual result that the county judge, on November 1, 1957, and after a full hearing, determined there had been a violation of the probation and ordered that defendant be imprisoned for 30 days. On appeal to this court we held that the order had been in the nature of a punishment for violation of probation rather than for contempt, and since the January 11, 1957 order had not specified the conditions of probation, defendant could not lawfully be punished therefor. We reversed the November 1, 1957 order and remanded the matter so that the trial judge might enter a proper order formally imposing sanctions for the civil contempt of which defendant had been found guilty, and take all steps appropriate for the enforcement of that order. We noted that in the circumstances the framing of an effective order called for a certain flexibility of approach by the trial judge, and we specifically stated that the court was free to proceed against defendant for any violation of the visitation provisions of the judgment nisi , past or future. The result was the order here under appeal, entered November 13, 1958.
Defense counsel first argues that a trial judge is without authority to place on probation a person who has been found guilty of contemning a court order, where sentence
has been suspended. He calls attention to the provisions of R.R. 4:87-3, which states that where the contempt is primarily civil in nature, and the person in contempt shall have disobeyed a judgment, order or process of the court, he "shall stand committed and remain in close custody until the judgment, order or process is obeyed and performed and until such fine as may be imposed for his contempt in accordance with N.J.S. 2 A:10-5, with costs, is fully paid, or until further order of the court." It is argued that the purpose of the rule is to compel obedience, and there is no right to place a defendant on probation, because probation implies that a person has been found guilty of some criminal act, in which case a probation period for rehabilitation is imposed instead of a prison term.
We observe that defendant did not, on her prior appeal, challenge the trial court's right to impose probation after suspending sentence, nor did we in any way disapprove of probation in the circumstances. The attack then was upon the form of the January 11, 1957 order. We question defendant's right to raise the probation question now, but we shall nonetheless consider the matter on the merits.
Probation, as we said in our earlier opinion, has a common law basis. Adamo v. McCorkle , 13 N.J. 561, 563-564 (1953). In 1929 a comprehensive revision of our laws relating to suspension of sentence and probation was enacted. L. 1929, c. 156; N.J.S. 2 A:168-1 et seq. N.J.S. 2 A:168-1 provides that where it appears that the best interests of the public as well as of defendant will be subserved thereby, "the courts of this state having jurisdiction over criminal or quasi -criminal actions shall have power, after conviction or after plea of guilty or non-vult for any crime or offense, * * * to suspend the imposition or execution of sentence, and also to place the defendant on probation under the supervision of the chief probation officer of the county, for a period of not less than 1 year nor more than 5 years." Similarly, courts having jurisdiction "over juvenile or domestic relations cases, when it shall appear that the best
interests of the public as well as of the person adjudged guilty of any offense, * * * before such court will be subserved thereby," are authorized to place a ...