Tracey v. TraceyTracey v. Tracey
Daniel J. Tracey, Jr. appeals from an order of the Juvenile and Domestic Relations Court of Union County dated November 9, 1960 which directs him to continue to comply with a previous order made on January 8, 1960 and to pay the arrearages thereunder. The January order directed, inter alia, that he рay his wife, the plaintiff, Dorothy, $50 weekly for the support of herself and their daughter, Danise, now ten years old. The defendant was to have all services and meals at home and the child was to sleep by herself. He was also to pay the house payments and utilities. The orders contain other provisions not immediately pertinent.
The defendant acted as attorney pro se at the hearings before the trial court and initially on this appeal, but an attorney filed a supplemental brief and appendix and argued the appeal. The plaintiff was represented by counsel at the trial, but she has not appeared or filed any brief on this appeal. Both at the trial and appellate level, the proceeding has been conducted with an unwarranted degree of
The substantial legal issues involved are: (1) whether there was prejudicial procedural error in the trial court; and (2) whether the Juvenile and Domestic Relatiоns Court has jurisdiction to grant relief to a wife for support, under the claim of desertion, pursuant to
Thе parties were married in 1950. Their daughter suffers from hearing and speech impediments requiring therapy and mechanical aid. The parties reside in the same three-bedroom household in Elizabeth, N.J. Plaintiff‘s mothеr also resides there and performs household duties for which she is paid by her daughter. The defendant earns about $11,000 per year. The plaintiff is also employed and earns about $4,800 per year. Without detаiling the testimony, it is sufficient to state that the parties are unhappily married. Although they live in the same household, they have apparently not been cohabiting as husband and wife for some time. Plaintiff slept with hеr daughter and later with her mother.
The plaintiff filed an informal complaint on June 19, 1959. Her supporting affidavit, filed on June 22, 1959, recites that her husband violated
The first hearing wаs held on January 8, 1960, previously scheduled hearings having been adjourned. The plaintiff was represented by counsel. The defendant was accompanied by John T. Glennon, Esq., a member of the bar. In an affidavit, thе latter stated that as a friend of both parties he “was present more in the capacity of `amicus curiae,’ rather than as counsel for the defendant, in an endeavor to assist the court in aiding the parties to adjust their domestic differences.” He avers, and it is undenied, that no testimony was taken; that the court received merely a verbal summary of the facts and contentions of the respective partiеs and then directed that the January order previously mentioned be entered.
Defendant is correct in his contention that it was improper to make the January order, in the absence of consеnt, without the taking of testimony to establish the cause of action. The statements of counsel were not the substitute for testimony in the absence of consent to the entry of the order. Hyman v. Muller, 1 N.J. 124, 129 (1948); Test v. Test, 131 N.J. Eq. 197, 200 (E. & A. 1942).
A further hearing of the case was held on November 9, 1960. How this came about is not clear; but on this occasion, a transcript of the proceeding was made. The plaintiff was represented by an attorney and the defendant appeared pro se. Both parties were sworn and examined. The plaintiff complained that the defendant was not regularly making the $50 weekly payments previously ordered by the court, and she sought an additional allowance for
“THE COURT: * * * The first point that Mr. Tracey makes is that his wife refuses to sleeр with him and therefore he should not pay anything for her support. I will dismiss that as not worthy of attention.”
At another point:
“THE COURT: * * * Mr. Tracey, do you want your wife to come back and live with you as man and wife? Is that it?
MR. TRACEY: I never wished it any other way, your Honor.
* * * * * * * *
THE COURT: You may question her right to maintenаnce. I will allow that but as long as you are living in the same house, I don‘t see how you can expect not to support your wife. You certainly have to support your child. As long as you are living in the same hоuse, how can you not give her any money?
* * * * * * * *
You see, this is not a matrimonial suit. You are still living in the same house. You certainly have to pay for your own room and board and your child‘s room and board.”
At the cоnclusion of the latter hearing, the court continued the previous order, that defendant pay his wife $50 per week for support, and directed that the arrearages be paid. It denied the wife‘s aрplication for additional allowance for speech therapy for the child. No appeal was taken therefrom.
We conclude that the pleadings and procedures in the cоurt below did not comport with the highest standards of due process discussed in Hewitt v. Hollahan, supra (56 N.J. Super. 372, 378). However, defendant having surely by the second hearing been apprised of the claim against him and been afforded an opportunity to meet it, we proceed to the merits.
The commоn law duty of the husband to support his wife and children is a continuing obligation, Royce v. Royce, 124 N.J. Eq. 469, 471 (E. & A. 1938); it endures throughout the continuance of the marital relation, Hatch v. Hatch, 83 N.J. Eq. 168 (Ch. 1914), including the time during which a suit for divorce between the parties is pending. Irvine v. Irvine, 81 N.J. Eq. 20 (Ch. 1912). Indeеd, the jurisdiction of our courts to award maintenance or alimony is purely statutory. Tonti v. Chadwick, 1 N.J. 531, 536 (1949); Peff v. Peff, 2 N.J. 513, 525 (1949). The Juvenile and Domestic Relations Court is designed, in the interest of public policy, to provide a tribunal able expеditiously to assure adequate support for a wife and child to avert the need for their public maintenance. It deals with the financial aspect of the matrimonial relationship where the husband is the deserter. For the litigation of grievances beyond nonsupport by a deserting husband, the parties must resort or be relegated to other courts of competent jurisdiction.
The Juvenile and Domestic Rеlations Court is a tribunal of statutory origin and its jurisdiction is strictly limited to the subject matter set forth in the statute. State v. Monroe, 30 N.J. 160, 164 (1959); State on Complaint of Bruneel v. Bruneel, 14 N.J. 53, 58 (1953); Amadeo v. Amadeo, 64 N.J. Super. 417, 422 (App. Div. 1960); Mattox v. Mattox, 43 N.J. Super. 111, 115 (App. Div. 1956). Its jurisdiction may not be enlarged by consent of the parties. State on Complaint of Bruneel v. Bruneel, supra. The interpretation given the word “deserts,” when applied to a husband under
In Amadeo v. Amadeo, supra, Judge Goldmann observed that the incompleteness of the record raised the question whether the wife had deserted the husband or whether the separation was consensual. He noted, “Of course, if plaintiff had left her husband without justifiable cause, his failure to support her could not be considered a desertion on his part and jurisdiction would not lie. Likewise, if the parties separated by mutual consent, jurisdiction to award support for the wife would not lie.” Amadeo v. Amadeo, supra, at p. 422. The trial court was directed to explore these questions upon the remand. In Kershner v. Kershner, 39 N.J. Super. 604 (Juv. & Dom. Rel. Ct. 1956), the court held thаt defendant‘s consent to the support order was considered an admission of the facts establishing the statutory jurisdictional requirements, but there was an implication that the cause of action properly belonged in the Chancery Division. There is a clear assumption in the opinion that desertion by the wife deprives her of the right to seek support from the husband. We conclude, from all
We therefore conclude that defendant must have the opportunity to submit his defense by plenary proofs. Consequently, the order is reversed and the matter is remanded for rehearing. Pending rehearing, the provisions of the order under review will stand. No costs.