On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County.
J.h. Coleman, Dreier and Ashbey. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
This is an appeal and cross-appeal from certain aspects of a final judgment of divorce respecting the sale of the marital home, counsel fees and support for a grandchild. Our resolution of those issues was made more complicated by a combination of some unique and unfortunate facts.
Plaintiff and defendant were married on September 29, 1956. Six children were born of the marriage, all of whom were emancipated before the action for divorce was commenced. The parties were separated in September 1987 when defendant was 52 years old. When the complaint for divorce was filed on April 21, 1988, defendant was totally disabled from rheumatoid arthritis, bone spurs on her feet and a heart condition known as angina. She has been collecting $325 a month in Social Security Disability benefits since February 1988. Defendant has been unable to work since 1985.
J., the oldest child born of the marriage, suffers from mental illnesses including schizophrenia which necessitated hospitalization on several occasions. During one of those hospitalizations, J. became pregnant and on June 29, 1981 a daughter, J.L., was born. J.L. came to live with the plaintiff and the defendant three days after birth and has remained in the marital home since, except for one six month period when the child lived elsewhere with plaintiff and the natural mother. The father of the child was also a patient at the psychiatric hospital and he has never had contact with the child.
The parties agree that the natural mother is incapable of caring for the child. On August 9, 1981, the former Juvenile and Domestic Relations Court in Ocean County granted the grandparents' request for temporary custody of J.L. The Social Security Administration paid $90 a month for J.L.'s support before plaintiff and defendant separated. In November 1987, defendant initiated proceedings to compel plaintiff to pay support for herself and for J.L. On December 7, 1987, a consent order was entered requiring plaintiff to pay $50 per week for
the support of J.L. Plaintiff was also required to provide certain health care benefits for the grandchild.
A trial was conducted between November 6 and 14, 1989. A dual judgment of divorce was granted. A final judgment was entered on December 15, 1989. Pertinent to this appeal, the judgment provides: (1) that defendant shall have custody of J.L.; (2) plaintiff shall pay $53 per week as support for J.L. and alimony of $57 per week; (3) the marital home located at 203 Bridge Avenue, Point Pleasant, N.J., and occupied by defendant and J.L. be listed for sale on November 13, 1990, and that the net proceeds be divided equally between plaintiff and defendant; and (4) that defendant's application for attorney fees be held in abeyance.
On this appeal, defendant contends the former marital home should not be sold because she and the granddaughter should have use and occupancy of the home until J.L. is emancipated. In his cross-appeal, plaintiff argues that he has no legal obligation to support his granddaughter, and therefore the house should have been listed for sale immediately rather than approximately one year after entry of the final judgment. Because these issues are so intimately intertwined, we shall dispose of them simultaneously.
First, we will decide whether the court erred in requiring a grandfather to support his grandchild in the circumstances of this case. While there is no statutory authority requiring plaintiff to support his granddaughter,*fn1 the record clearly established that plaintiff has assumed an in loco parentis relationship with the grandchild since three days following her birth. This was confirmed by the court, at plaintiff's and defendant's request, on August 19, 1981. Plaintiff even consented to a support order in 1987 after he left the marital home.
Because plaintiff voluntarily undertook to provide support for J.L. and to rear her, he will now be equitably estopped from repudiating that obligation. Plaintiff voluntarily undertook to support and raise the grandchild, and since plaintiff's conduct effectively excluded J.L. from being placed for adoption, J.L. now has no other place to turn for support. "To protect children from the whims of those who, for several years, treated them as their own, courts have held that both 'adoptive' parents must be estopped from denying their duty to support the child." Miller v. Miller, 97 N.J. 154, 166, 478 A.2d 351 (1984); A.S. v. B.S., 139 N.J. Super. 366, 369-372, 354 A.2d 100 (Ch.Div.1976), aff'd 150 N.J. Super. 122, 374 ...