Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Lewis, J.A.D.
Plaintiffs, a family of seven, appeal from a determination of the Department of Institutions and Agencies (Department) affirming the action of the Atlantic County Welfare Board (Board) in discontinuing payments under the Assistance for Dependent Children (ADC) program created by N.J.S.A. 44:10-1 et seq., and 42 U.S.C.A. § 601 et seq.
The wife, mother of five children, after obtaining a divorce from their father, married her present husband, Anthony
Tartaglio. Before the remarriage she received welfare assistance. Subsequently, there was a rebudgeting by the Board of the family income and expenses which took into consideration the stepfather's earnings; the Board found that there was a monthly surplus of $75.66. Accordingly, it determined that the children were ineligible for continued assistance. On appeal to the Department a "fair hearing" was held, pursuant to N.J.S.A. 44:7-18 and 44:10-2, which culminated in that agency's affirming the decision of the Board. We here note that due process is satisfied in administrative proceedings if a fair hearing is accorded before the order becomes effective. In re Masiello, 25 N.J. 590 (1958); New Jersey Zinc Co. v. Board of Review, 25 N.J. 235 (1957).
On appeal to this court plaintiffs' principal arguments are based upon the contention that the Board was not authorized to take the stepfather's earnings into consideration because the stepfather is not required by law to support his stepchildren, citing Schneider v. Schneider, 25 N.J. Misc. 180, 52 A. 2 d 564 (Ch. 1947), and Falzo v. Falzo, 84 N.J. Super. 343 (App. Div. 1964). Compare Paragian v. Paragian, 48 N.J. Super. 207, 209-213 (J. & D.R. Ct. 1957), and Williamson v. Williamson, 183 Ky. 435, 209 S.W. 503, 505, 3 A.L.R. 799 (Ct. App. 1919). Neither the Board nor the Department purported to impose a legal obligation on the stepfather to support his stepchildren and, indeed, it was not within their power to do so.
The record before us reveals that plaintiffs are living together as a family unit; the stepfather considered the stepchildren dependents for purposes of withholding tax exemptions; he assumed the role of a spouse and father to his wife's offspring, and he was willing to assume "as much of the responsibility as he could."
In Connecticut where the statutes, as in New Jersey, do not impose an obligation of support upon a stepfather, a denial of financial assistance to dependent children of a mother who had remarried was sustained, the court stating:
"The mother, the stepfather and her children are a family unit the resources of which should be considered. For the state to furnish aid, there should be an actual need. Need should not be created where none exists, based on the absence of a legal obligation on the part of the stepparent to support his stepchildren." Ladd v. Welfare Commissioner, 3 Conn. Cir. 504, 217 A. 2 d 490, 492 (Cir. Ct. App. Div. 1965).
People v. Owens, 231 Cal. App. 2 d 691, 42 Cal Rptr. 153, 157 (D. Ct. App. 1965), is to the same effect. It has been held that even absent a formal marriage, the income of one assuming the role of a spouse is includable in budgeting the family needs. See County of Kern v. Coley, 229 Cal. App. 2 d 172, 40 Cal. Rptr. 53, 56-58 (D. Ct. App. 1964); People v. Rozell, 212 Cal. App. 2 d 875, 28 Cal. Rptr. 478, 480-481 (D. Ct. App. 1963); People v. Shirley, 55 Cal. 2 d 521, 524, 11 Cal. Rptr. 537, 539, 360 P. 2 d 33, 92 A.L.R. 2 d 413 (Sup. Ct. 1961). But cf. Reich, "Individual Rights and Social Welfare: The Emerging Legal Issues," 74 Yale L.J. 1245 (1965).
In the instant matter, the decision of the Department refers specifically to its rules and regulations, identified as the "Categorical Assistance Budget Manual," which, in pertinent part, provides:
"When an ADC family consists of a natural or adoptive parent, eligible child(ren) and a stepparent (the family may or may not also include ineligible child(ren)) * * * need shall be determined on the basis of the family budget unit. Need exists if the income of all members of the family is less than the sum of basic and special circumstance requirements for all family members * * *. Need does not exist if the income of the family equals or exceeds ...