Goldmann, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
The parties appeal and cross-appeal from a judgment entered in a matrimonial cause on November 20, 1959.
The judgment culminated a series of litigated post-marital disputes between the divorced parties relating mainly to the custody and support of their three sons, who at the time of the judgment were thirteen, twelve and nine years of age. The judgment provided: (1) plaintiff was adjudged to be guilty of contempt of court for interfering with defendant's visitation on September 28, 1956; sentence was deferred indefinitely and all other applications to have plaintiff held in contempt were deferred until further order; (2) custody of the three infant boys of the marriage was continued in the plaintiff, but defendant was given full custody of the children every weekend and every summer, in addition to every other holiday (an extension of right of visitation previously given); (3) support for the infant children was decreased from $50 a week per child to $35 a week per child as of January 1, 1959; (4) defendant was ordered to pay forthwith the sum of $5,065, representing accumulated arrearages due plaintiff for the support
of the children from September 1, 1956 to January 1, 1959; and (5) defendant was ordered to pay plaintiff or her former attorney a counsel fee of $750.
Plaintiff contends on her appeal that: (1) the proofs were insufficient to support a finding of contempt by the trial court, the contempt order is invalid because it was not entered until three years after the alleged contempt, the contempt order was blended with the disposition of the custody of the children and visitation rights, and the punishment should not have been deferred; (2) the order modifying defendant's visitorial rights was improvidently entered; (3) it was error to reduce the support for the infant children from $150 to $105 a week; and (4) the trial court erred in granting a counsel fee of only $750.
Defendant filed a cross-appeal from a portion of the final order and contends: (1) defendant should be granted custody of the infant children; (2) the support order should be reduced to $60 a week for the three infant children; (3) the order modifying the support payments should have been made retroactive to November 23, 1955, and not merely to January 1, 1959; and (4) it was error to grant plaintiff's attorney a counsel fee.
Our reading of the record convinces us that the trial court was justified in holding plaintiff in contempt. On September 27, 1956 defendant's attorney obtained an order to show cause, returnable on October 11, 1956, why the relief sought in defendant's petition should not be granted. That petition sought to hold plaintiff in contempt for her refusal to abide by an order of the court dated June 28, 1956 (dealing with partial custody), and requested that custody of the infant children be granted defendant, that the visitation rights in the judgment nisi be clarified and defendant granted additional visitation, and that plaintiff be enjoined from interfering with defendant's visitation rights. The order to show cause restrained and enjoined plaintiff from interfering with the visitation afforded defendant in accordance with the terms of the judgment nisi
entered February 4, 1955 and an order of partial custody entered on June 28, 1956. The petition and order were served on plaintiff at her home at about 11:00 A.M. on Friday, September 28, 1956.
Pursuant to the terms of the judgment nisi , defendant was entitled to visitation with the infant children from 5 P.M. Friday evening, September 28, 1956, until 5 P.M. Sunday evening, September 30, 1956. At about 5 P.M. on Friday, September 28, 1956, defendant called at plaintiff's home and waited outside for the children. Plaintiff came to the door and asked defendant if he had the weekly check for the support of the children Defendant gave plaintiff a check in the amount of $105. Plaintiff then informed defendant that since the check was $45 short (the judgment nisi provided that payments be $150 a week) he could not have the children. Thereupon, defendant called his attorney who, in turn, called the trial court. Defendant's attorney also called plaintiff's attorney who telephoned plaintiff and told her to immediately release the children. The children were released to defendant at about 7 P.M.
There can be no doubt that plaintiff willfully violated the judgment nisi and the restraint served upon her the very morning of the alleged contempt. The circumstances surrounding plaintiff's willful violation of the order may go to mitigate the punishment. However, they are sufficient to sustain the adjudication of contempt. The fact that defendant paid only $105 instead of $150, and the further fact that due to the intervention of the attorneys and the court the contempt was of only two hours duration, did not justify plaintiff's actions. It was for the court to punish defendant, assuming he, too, was in contempt for failing to pay $150 as required by the judgment nisi -- not for plaintiff to deprive him of his visitation rights, and attempt to take the law in her own hands.
Ordinarily, the mother's violation of the provisions of the decree concerning visitation rights is not a defense to a charge of contempt based ...