Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Defendant Norman S. Kruvant appeals from two orders of the Chancery Division reopening and modifying the provisions for the support of his son, Michael Kruvant, as contained in the judgment nisi for divorce in this cause.
Plaintiff and defendant were married in Newark, New Jersey, on February 12, 1939. Three children were born of the marriage, Michael (born July 4, 1941), Ronald and Arni Beth. A judgment nisi awarding plaintiff a divorce on the ground of desertion was entered on April 29, 1958 and became final on July 30, 1958 (Docket No. M-2359-57). Both parties thereafter remarried. Plaintiff now resides with her new husband and her daughter Arni Beth in Maplewood, New Jersey, while defendant resides with his new wife and her two children of a prior marriage, in North Miami, Florida.
The judgment nisi adopted an agreement between the parties which provided that the wife was to have custody of the three children and to receive weekly payments of support for the children and herself. If she remarried, the children's payments were to be increased by 20%. The payments were to continue even if defendant predeceased the children. To the extent here pertinent, the agreement also provided that payments for the children were to continue until "they and each of them have reached maturity as recognized in New Jersey and [are no longer] entitled to receive support from parent." They were to continue "notwithstanding any independent income that said * * * child may receive from
any source whatsoever." There was also a provision that plaintiff and each child of the marriage "shall have the opportunity * * * to be enabled to put aside as savings any moneys to protect said * * * infant children against any unforeseen and unhappy emergency" and that the provisions in the agreement were "in addition to and notwithstanding any separate income received by the wife and said children."
Defendant interpreted the agreement as permitting the termination of payments under the judgment nisi as each child reached the age of 21. When Michael and Ronald attained that age, he discontinued the payments even though he "voluntarily" continued to aid each financially.
On September 12, 1966, plaintiff filed her present motion to reopen the judgment in the divorce action to modify the provisions for the support of Michael, who was then 25 years old, and to compel reimbursement to her for monies already expended in his behalf. In her moving affidavit she alleged that he suffered from an emotional illness or mental disorder which had pre-existed the divorce and had continued during his minority. It had become so bad during the 1963-65 period that it had been necessary to summon the East Orange Police (Michael was then living there) on six occasions, two of which resulted in his hospitalization. She also alleged that he had required "constant psychiatric treatment" and had been at one time hospitalized at the Carrier Clinic, a private mental institution located at Belle Mead, N.J.
It was further alleged that by the latter part of 1965 Michael had withdrawn from all interpersonal relationships, had lost weight and was suffering from depression and blackout spells. He had been unable to complete his college education or obtain employment and generally demonstrated an inability to function normally in society. She thereupon arranged for Michael's hospitalization at the Institute of Living, an internationally recognized private psychiatric institution at Hartford, Connecticut, where he had been a patient from December 8, 1965 until the date of her moving papers (he continued there through December 1966). The basic
cost of maintenance and treatment there was $245 per week and plaintiff had expended a total of $12,821.12 for that purpose up to December 1, 1966.
She alleged that she had been advised by the Institute's staff that the type of individualized treatment that Michael's condition required was not available at State or county psychiatric institutions. The diagnosis was "depression reaction in a passive-aggressive personality, passive dependent type." In September 1966, the psychiatrist-in-chief there reported that:
"Michael Kruvant has a history of withdrawal from interpersonal relationships, inability to complete his college education or to obtain gainful employment, depression and an apparently severe characterologic problem involving overuse of medication. He continues to manifest this type of adaptation although in a somewhat improved manner as compared to the time of his admission."
It was his opinion that if Michael were to leave the hospital at that time he would be unable to function either in a college or occupational setting.
Plaintiff alleged that at the time of Michael's hospitalization she had sought defendant's assistance in financing his hospitalization, through defendant's former attorney. It is not claimed that defendant approved, or even that he personally knew that Michael was being hospitalized. She alleges that it had been suggested on defendant's behalf, as an alternative, that Michael would be better off in a State operated mental institution such as Overbrook Hospital in Cedar Grove and an offer had been made on his behalf to arrange for Michael's admission there.
In the absence of financial aid from defendant, plaintiff averred that, although she had managed up to then to pay for Michael's hospitalization at the Institute through personal funds and by borrowing from other sources (including the bank accounts and bonds of Michael, Ronald and Arnie Beth), she was no longer able to carry the burden.
At the time of the hearing on the motion Michael was scheduled for release from the Institute and was to be treated thereafter on an outpatient basis, thus substantially reducing the cost of his care. At the oral argument we were advised that he was no longer under treatment.
Almost simultaneously with the present motion plaintiff instituted a separate action in the Chancery Division seeking the same relief upon substantially the same allegations. At the hearing on the motion counsel for plaintiff offered to consolidate the latter action with the motion, but this offer was not accepted by the trial judge and he proceeded on the motion alone. However, he commented:
"If the case goes on appeal and the Appellate Division or Supreme Court should decide I was wrong on going on the Notice of Motion, I am sure they will take up the Complaint just as if it ...