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Amadeo v. Amadeo

Decided: December 15, 1960.

LORAYNE M. AMADEO, PLAINTIFF-RESPONDENT,
v.
PAUL AMADEO, DEFENDANT-APPELLANT



Goldmann, Foley and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[64 NJSuper Page 419] Defendant husband appeals from a support order entered in the Juvenile and Domestic Relations Court. The complaint charged defendant with willfully refusing or neglecting to provide sufficient support for his

family, described as consisting of plaintiff and the two minor children of the marriage. The usual language -- that defendant abandoned and deserted the family -- had been stricken from the complaint before filing.

The matter was opened to the Juvenile and Domestic Relations Court judge by the probation officer, who said that defendant had left his wife in July 1958 and had voluntarily undertaken, in March 1959, to pay her $75 a week as long as he was granted reasonable visitation. He reduced his payments to $45 a week in June 1960. An extended colloquy between court and counsel followed, in the course of which defendant's attorney stated that his client conducted two tavern businesses, was self-employed, and earned about $5,000 a year net. Payments had been reduced to $45 a week after plaintiff had objected to a renewal of defendant's liquor license and had reported him to the Internal Revenue Bureau. Plaintiff's attorney indicated that although there were two children by the marriage, plaintiff had a child by a prior marriage whom defendant had undertaken to support, and for whom he claimed income tax deduction. Further, that plaintiff lived in a home owned by defendant and that he took care of mortgage payments, taxes and insurance, as well as all utility and maintenance charges above $25 a month. The colloquy further developed the fact that there was an action pending in the Chancery Division wherein plaintiff sought an accounting based on a claim that she owned half of defendant's business.

Plaintiff offered no proofs as to her needs and those of the three children, nor was any testimony taken as to defendant's means. The only proofs made were those at the instance of defendant's counsel when he called plaintiff as a witness. Through her he established that defendant had been paying her $75 a week until June 1960, when the amount was reduced to $45, and that she was employed during the summer and earned some $35 a week as a waitress.

The court thereupon entered an order directing defendant to pay plaintiff $60 a week from July 15, 1960 to September 9,

1960, at which time he was to pay her $75 a week until she again became employed. The court also ordered that custody of the three children remain with plaintiff, subject to defendant's weekly right of visitation; that plaintiff continue to reside in the home she then occupied; and that defendant continue to make the mortgage, tax and insurance payments.

In appealing from that part of the order relating to weekly support payments defendant contends that (1) the trial court was without jurisdiction to award support since the complaint failed to charge abandonment or desertion, and there was no evidence from which abandonment or desertion could be inferred; (2) he was not guilty of willfully abandoning his family since he was voluntarily providing $45 a week plus housing; (3) there was no proof that the voluntary provisions made by him were insufficient, absent proof of greater need; (4) he was erroneously required to pay for the support of a child admittedly not his own; and (5) the support award was excessive.

I.

N.J.S. 2A:4-18 and R.R. 6:5-1(a) permit a Juvenile and Domestic Relations Court to hear a cause like the present one in a summary manner. This is what occurred below. R.R. 6:5-1(d) enjoins the court to make a general finding and, in addition and upon request, to find the facts specially. The record indicates only a general finding and no request for special findings. However, R.R. 6:3-11(b) provides that whenever an appeal is taken from a decision of the Juvenile and Domestic Relations Court, "the judge shall file a statement setting forth the reasons for his determination." R.R. 1:2-8(a) requires that a copy of the notice of appeal be served on the trial judge and on respondent's attorney. Further, when an appeal is taken from a Juvenile and Domestic Relations Court, a copy of the notice must also be served on the county counsel. R.R. 1:2-8(d). The

notice of appeal in the present case indicates that respondent's attorney and the county solicitor were served, and we have been informed that notice was also served on the trial judge. This being so, R.R. 6:3-11(b) became operative. The failure of the trial judge to file the required statement leaves us without ...


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