Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Lewis, J.A.D.
[94 NJSuper Page 405] This is an appeal and cross-appeal from a judgment of the Chancery Division whose opinion is reported at 89 N.J. Super. 133 (1965). Plaintiff wife sued for separate maintenance and custody and support of the two children of the marriage. The trial court held that since plaintiff had fled before trial to Iran, her native country, taking with her Kamran (then age four), the older of the children, defendant husband was entitled to a dismissal of the complaint insofar as it demanded separate maintenance for her and an accounting of property. Since
Kamran remained without the jurisdiction there was no order with respect to his custody, but the father was ordered to pay $7.50 per week, through the Essex County Probation Department, for his support.
Defendant on appeal urges that the complaint should have been dismissed because of plaintiff's failure to prosecute, and that, in any event, the order of support should be reversed. The contentions on the cross-appeal are that the minimum support payments should have been $15 a week and defendant should have been required to pay a counsel fee.
The record reveals that plaintiff's suit was commenced in February 1964 and, on May 12 of that year, she was awarded custody pendente lite of the two children, Kamran and Samuel, with reasonable rights of visitation to defendant, who was ordered to pay his wife $25 per week for her support and $20 per week support for each of the two children. Subsequently, on July 24, 1964, the wife, with the infant son Kamran, disappeared and, unbeknown to defendant and without his consent, fled to Iran, abandoning the younger son Samuel. By an order dated November 25, 1964 defendant was given custody pendente lite of Samuel, and the weekly support payments for Kamran were reduced to $15. Thereafter, defendant addressed a series of motions to the trial court seeking, inter alia, (1) to force his wife's return with Kamran to this State, (2) suspension of all support payments for her and Kamran, and (3) the fixing of an early hearing date on her complaint.
Prior to July 2, 1965 the trial had been postponed on four occasions. On that date defendant secured an order from Judge Collins which directed plaintiff to return Kamran, "a United States citizen, to the jurisdiction of this court." In addition, the judge addressed a letter to counsel scheduling final hearing for September 15, 1965, with a notation, "Unless you appear on that date the case will be dismissed." On that day, when the case came on for trial before Judge Consodine, plaintiff did not appear, and her
attorney read into the record the following letter, dated September 10, 1965, which he had received from her:
"I have received your letter of Sept. 3 and I am advised that there is nothing that you can do in this case. I am awfully sorry that I wasn't able at least to make myself understood. That in order to be able to come back I need money and also all my questions remain unanswered; although, you as my attorney, were the one who could reply me.
I, also, from your previous letters gathered that it is very probable that in the case I appear in N.J. I would not be able to leave it and you never explained to me which law says so?
Probably I'll propound this case in an international court or in a court in Teheran. In that case I'll ask for my file."
No evidence was proffered with respect to the needs of the infant in Iran. At this juncture, we observe the uncontradicted statements in the affidavit of defendant, in opposition to plaintiff's motion to dismiss his appeal, wherein defendant declares that he and his wife were of Iranian birth; he had given up citizenship of that country and had become a citizen of the United States; his wife constantly talked about her homeland, often commented on how much she hated being in the United States, and expressed a desire to return ...