Defendant's motion poses the question of whether a party to a marital support suit under N.J.S. 2A:4-18(e) is entitled as of right in the Juvenile and Domestic Relations Court to take the opposing party's pretrial deposition pursuant to R.R. 4:16. Plaintiff wife filed her complaint on July 1, 1965; it was first set down for hearing on September 21, 1965, but was adjourned at defendant's request; it is currently scheduled for trial on November 16, 1965.
N.J.S. 2A:4-18(e) reads as follows:
"The juvenile and domestic relations court shall also have jurisdiction concurrently with such other courts as may have jurisdiction over the matter, to hear and determine in a summary manner disputes and complaints: * * *
(e) Involving the domestic relation, where a husband or father deserts his wife or child even though they continue to live in the same household, in which case the court may order adequate support of his wife, child or family."
Plaintiff in her complaint seeks support for herself and the three children of the marriage, aged four, three and one. The complaint alleges that plaintiff and defendant live at the same address.
On October 22, 1965 defendant husband moved for an order permitting the taking of his wife's deposition. The motion was opposed and was argued on October 29, 1965, its return day. Defendant's application was unaccompanied by any proof or offer of proof disclosing the necessity for taking plaintiff's deposition. Defendant, instead, took the flat position that as a matter of law he was unconditionally entitled to take her deposition, with or without good cause or any cause, arguing that R.R. 4:16, which permits depositions in Superior Court proceedings, is equally applicable to support suits here.
Aside from one statutory exception contained in the Interstate Reciprocal Enforcement of Family Support Act, N.J.S. 2A:4-30.1 to 30.23, which will be mentioned again later herein, this court has no power to order or authorize depositions in a suit under N.J.S. 2A:4-18, and even if it did, defendant wholly failed -- in fact, he did not even try -- to make out a case for its exercise. R.R. 4:16 allows one party to take the deposition of another, upon notice, without leave of court. R.R. 4:1-1 provides that Part IV of the Rules Governing the New Jersey Courts shall govern the practice and procedure in the Superior Court in all civil actions. R.R. 4:16 is itself contained in Part IV. Omnibus R.R. 5:2-1 makes Part IV generally applicable, with certain exceptions not here material, to County Courts, but not to probate matters therein. R.R. 5:3-7 makes Part IV generally applicable to probate actions in the County Court and, as well, it specifically fastens on R.R. 4:16 and makes it applicable to such actions. R.R. 7:6-5 authorizes depositions in accordance with R.R. 4:16 in civil suits in the county district court and the municipal court, but only upon leave of court, and even then only in the specific, narrow instances described therein. R.R. 8:4-8 allows depositions in criminal cases in municipal courts and county district courts.
Turning now to the Juvenile and Domestic Relations Court, R.R. 6:1-1 ordains that the rules in Part VI shall "govern the practice and procedure" in said court. But Part VI of the rules contains no grant of authority to take or order depositions. In fact, depositions are nowhere even mentioned in Part VI. It is fair to infer, therefore, that the power to take them, or to order them taken, does not exist in this court if the Rules of Civil Practice are to be regarded the sole source of that power.
The aforesaid specific authorizations of depositions for the Superior Court, the County Courts, the county district courts, the municipal courts, and County Courts sitting in probate matters, indicate that the deposition power does not exist in
any given court unless it is specifically granted to it by rule. To reason otherwise would be to expose the rulemaker to the unjust reproach of using words needlessly by conferring deposition powers upon ...