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Grotsky v. Grotsky

Decided: May 24, 1971.

CAROL GROTSKY, PLAINTIFF-RESPONDENT,
v.
MARTIN GROTSKY, DEFENDANT-APPELLANT



For affirmance -- Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The defendant husband appealed from that portion of a divorce judgment in his wife's favor which directed that he "shall keep in force and pay the premiums on all policies of insurance presently in existence on his life and shall irrevocably designate his three infant children as the beneficiaries under the said policies." We certified his appeal while it was awaiting argument in the Appellate Division.

The parties Carol and Martin Grotsky were married in 1949 and have three children. In 1969 Carol filed her complaint in the Chancery Division charging Martin with a matrimonial offense and seeking a divorce along with support for herself and their children. At that time the respective ages of the children were sixteen, fifteen and six. After trial, the Chancery Division determined that Martin had committed the offense as charged and adjudged that the parties be divorced. Custody of the children was awarded to Carol, and Martin was ordered to pay $140 per week representing $35 per week for Carol's support and $35 per week for the support of each of the three children. There were other provisions in the judgment which do not concern us for the appellant's sole attack relates to the provision with respect to Martin's life insurance. The record omits all details with respect to this insurance but the omission is not significant here since the appellant's attack rests entirely on his blanket legal contention that the Chancery Division was wholly devoid of equitable power, either to bind his estate for the support of his minor children, or to direct the dedication of his life insurance to secure such support. Cf. Flicker v. Chenitz, 55 N.J. Super. 273, 284 (App. Div.), certif. granted, 30 N.J. 152, appeal dismissed by consent, 30 N.J. 566 (1959); Raymond v. Raymond, 39 N.J. Super. 24, 30

(Ch. Div. 1956); Modell v. Modell, 23 N.J. Super. 60, 62 (App. Div. 1952).

The duty of parents to support their minor children was described by Blackstone as "a principle of natural law." 1 W. Blackstone, Commentaries *447. And although there were common law expressions in our State (Freeman v. Robinson, 38 N.J.L. 383, 384 (Sup. Ct. 1876); Alling v. Alling, 52 N.J. Eq. 92, 96 (Ch. 1893)) that this was a moral but not a legal duty, our current law clearly recognizes that it is both. See Daly v. Daly, 21 N.J. 599, 609 (1956); Greenspan v. Slate, 12 N.J. 426, 435 (1953); cf. Mowery v. Mowery, 38 N.J. Super. 92, 99 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956); Cohen v. Cohen, 6 N.J. Super. 26, 29 (App. Div. 1949). The development of our law has of course been influenced by the various statutory enactments bearing on parental duties. See Mowery v. Mowery, supra, 38 N.J. Super. at 98-99; Kopack v. Polzer, 5 N.J. Super. 114, 115-116 (App. Div. 1949), aff'd, 4 N.J. 327 (1950). The enactment most pertinent here is found in N.J.S.A. 2A:34-23; see also Assembly Bill No. 1100 (1970). It provides in part and in pointedly comprehensive terms that upon judgment of divorce the court may make such order "as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." It also provides that the court may require "reasonable security" for the observance of its order.

In applying N.J.S.A. 2A:34-23 our courts have given sensible recognition to the patent breadth of its terms. Thus, where the circumstances indicated that such was the reasonable and just course, orders have been entered directing not only the ordinary support for minor children but payment of their college expenses as well. See Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971); Hoover v. Voigtman, 103 N.J. Super. 535 (J. & D.R. Ct. 1968); Nebel v. Nebel, 99 N.J. Super. 256 (Ch. Div.), aff'd, 103 N.J. Super. 216 (App. Div. 1968). In Kruvant v. Kruvant, 100 N.J. Super. 107

(App. Div. 1968), the court expressed the view that in certain special situations the order for support may continue even beyond the minority of the child as, e.g., where on reaching his majority he is disabled from supporting himself. In commenting on N.J.S.A. 2A:34-23 Judge Labrecque said:

It contemplates support for the children of divorced parents who, but for the divorce, would have continued to be entitled to the support of their father. It stems from the presumed inability of such children, by reason of their minority, to provide for themselves. Children who are unable to care for themselves because of their minority are no less entitled to the court's solicitude when they continue to suffer, after they have attained their majority, from a physical or mental disability which continues to render them incapable of self-support. Normal instincts of humanity and plain common sense would seem to dictate that in such cases the statutory obligation of the parent should not automatically terminate at age 21, but should continue until the need no longer exists. 67 C.J.S. Parent and Child § 17, p. 704 (1950); 39 Am. Jur., Parent and Child, § 40, p. 645, § 69, p. 710 (1942). 100 N.J. Super. at 119-120.

The statute does not deal in explicit terms with the power to provide for the continued support of children after the death of their father, nor does any prior holding of this Court dispose of the matter. However, there are pertinent out-of-state decisions under general statutory provisions comparable to our own; they are not uniform but many of them and those most persuasive to us broadly recognize the court's power to assure continued support for minor children after their father's death by provision for the establishment of a trust fund, the maintenance of life insurance, or otherwise. See In re Goulart's Estate, 218 Cal. App. 2d 260, 32 Cal. Rptr. 229 (1963); Guggenheimer v. Guggenheimer, 99 N.H. 399, 112 A.2d 61 (1955); Caldwell v. Caldwell, 5 Wis. 2d 146, 92 N.W. 2d 356 (1958); see also Spencer v. Spencer, 165 Neb. 675, 87 N.W. 2d 212 (1957); Morris v. Henry, 193 Va. 631, 70 S.E. 2d 417 (1952); 2 Nelson, Divorce and Annulment § 14.91, p. 128 (2 d ed. 1961 Rev.); Notes, 35 Va. L. Rev. 482 (1949); 10 Wash. & Lee L. Rev. 226 (1953); Annots., 3 A.L.R. 3d 1170 (1965); 18 A.L.R. 2d 1126 (1951).

In Guggenheimer v. Guggenheimer, supra, the Supreme Court of New Hampshire held that there was power in a divorce proceeding to order the father to provide a trust fund for the support of his minor children which would be effective after his death and binding on his estate. Chief Justice Kenison noted that while the New Hampshire statute was general in terms and made no specific reference to support orders binding on the husband's estate, decisions in other states had followed the lead of Miller v. Miller, 64 Me. 484 (1874) in sustaining such orders. 212 A.2d at 63. In Miller the Supreme Judicial Court of Maine, invoking a statutory provision authorizing the court in a divorce proceeding to make such decree "as circumstances require," held that an order for support of minor children was not discharged by the father's death. Justice Walton expressed the thought that if for any reason there was danger that the minor children would be cut off from their ...


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