Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.
[84 NJSuper Page 344] The Chancery Division granted the plaintiff wife a judgment for separate maintenance against defendant, and the latter appeals. The amount was fixed at $20 weekly, a sum specified by the court as solely for the maintenance of plaintiff and not for that of a minor daughter
of plaintiff who is not defendant's child. Defendant appeals on the ground that he is not lawfully chargeable for plaintiff's maintenance because as their separation was the result of her refusal to abide by his request that the child be put out of the household. He contends that since he is only her stepfather, he was not legally obligated to participate in the support of the child and therefore was justified in conditioning his continued cohabitation with and support of plaintiff on her agreement that their home should not harbor the child any longer.
Judge Hand, sitting in the Chancery Division, rejected defendant's position, holding that the separation of the parties was consensual and that defendant was therefore subject to an order for separate maintenance, Richman v. Richman , 129 N.J. Eq. 114 (E. & A. 1941), limited, however, to support of plaintiff and not the child. We think he was right.
From the original and supplemental agreed statement in lieu of record the following essential facts appear. The parties were married in 1957. As defendant knew, plaintiff then had a ten-year-old daughter whom she was maintaining as a member of her household in a three-room apartment in Newark. Upon the marriage of the parties, defendant moved into plaintiff's apartment and lived there with her and the child, expressing a desire in the beginning to adopt the girl. However, plaintiff would not consent to the adoption. Cohabitation of the parties continued until some time in 1959 at a number of different residences. Throughout that period the child lived with the parties, except for a portion of the time during which they were residing at the Newark apartment, living intermittently with a neighbor in the same building. The record does not explain the reason for the latter circumstance.
After the initial separation the parties resumed cohabitation at periodic intervals during the year 1960. At all such times the child resided in the household. Although the record is cloudy as to detail, there was some testimony of difficulties between defendant and the child during cohabitation of the
parties. Defendant testified the child did not "treat him like a father." There are indications, however, that the parties were having more serious differences over an alleged improper relationship between defendant and another woman.
It does not appear from this record that there was any person other than her mother with whom this child could live or look to for support when the final separation of the parties took place. She was then 13 years of age. Defendant was employed as a taxi driver and plaintiff as a waitress; their combined earnings were modest.
It cannot be fairly doubted from this record, and we find, that it was understood at the time of the marriage that plaintiff's child was to reside in the household as a member of the family.
As noted, defendant's sole argument on this appeal is that his insistence that the child be put out of the home as a condition of continued cohabitation with plaintiff was justified since he would otherwise be involuntarily contributing to the support of a stepchild, contrary to his legal immunity from obligation for such support. It is conceded that there is no legal obligation for maintenance of a stepchild enforceable by court order against the will of the stepfather to continue such support and to act in loco parentis to the child. D. v. D. , 56 N.J. Super. 357 (App. Div. 1959) (involving a civil action in the Juvenile and Domestic Relations Court to compel, inter alia , support of a stepchild by a husband who had left the home). Some ground for defendant's argument that the stated principle justifies a stepfather in terminating a former relationship in loco parentis with his wife's child, without liability to the wife for support when she refuses his bona fide offer to resume cohabitation with her but without the child, is found in Schneider v. Schneider , 25 N.J. Misc. 180, 52 A. 2 d 564 (Ch. 1947). The result was theorized on the common-law and statutory immunity of a husband from liability for support of a stepchild to which he refuses to stand in loco parentis although he previously did so. The wife was held a deserter and so not entitled to support because, notwithstanding
she professed a willingness to live with the husband, she refused "to do so unless the husband permits her child by her former husband to live in any ...