Boerger v. Boerger

• Decision Date: 15 May 1953
• Docket Number: No. M--5546,M--5546
• Citation: 97 A.2d 419,26 N.J.Super. 90
• Parties: BOERGER v. BOERGER.
• Court: New Jersey Superior Court

Page 90

26 N.J.Super. 90

97 A.2d 419

BOERGER v. BOERGER.

No. M--5546.

Superior Court of New Jersey Chancery Division.

May 15, 1953.

Charles M. Grosman, Newark, attorney for plaintiff.

Thomas J. Holleran, Newark, attorney for defendant.

GOLDMANN, J.S.C.

The issue presented for determination is the future religious training and upbringing of the two children of the parties, now divorced. A review of past events will provide the setting for the present controversy.

Plaintiff was baptized in the Zion Evangelical and Reformed Church, a Newark, N. J. Lutheran congregation, in 1918 and went to Sunday School and services there until she was 10 or 11. When her family moved she attended Lutheran services irregularly in Highlands, N.J., and in the Bronx, New York City. Her religious activities during her 'teen years were admittedly 'sketchy.' She met defendant, an observant Catholic, in December 1938. They began to keep company regularly in 1939. Inevitably, the question of their different religions arose, and the subject was thoroughly discussed. Plaintiff ultimately concluded that she wanted to become a Catholic. She came to this decision of her own free will, with full understanding of what that step meant, and without the intervention of a priest. She agreed that she wanted to be instructed in the faith, to be baptized, confirmed and married in the Roman Catholic rite, and to raise any children of the marriage as Catholics.

Plaintiff entered upon a course of Catholic instruction by a priest in October 1939, the arrangements being made by a girl friend with whom she had been going to mass on Sundays. She was baptized in February 1940 and confirmed in the Roman Catholic rite in June of that year, one month after she and defendant became formally engaged. The marriage, a nuptial mass, took place November 8, 1941. A first daughter, Dianne Lee, was born two years later and plaintiff herself prepared the child for baptism in the Catholic church. Defendant was in the armed services from 1941 to November 1945. A second daughter, Geraldine Carol, was born in September 1946, and was baptized on January 12 following, with plaintiff's full consent.

In July 1949 plaintiff filed her complaint for divorce on the ground of defendant's adultery with a named co-respondent during the preceding month. Defendant counterclaimed for divorce A vinculo, charging desertion on or about March 19, 1947. Plaintiff did not attend the divorce hearing. The judgment Nisi, advised December 1, 1949, dismissed the complaint on plaintiff's own motion 'for lack of proof' and granted defendant a divorce on his counterclaim. The award of custody of the children to plaintiff was unopposed, the right of reasonable visitation being reserved to defendant who was directed to pay $20 a week for their support. Judgment final was entered March 2, 1950.

Meanwhile, plaintiff applied for an order fixing the visitation rights of the father and increasing the support allowance. A consent order was entered March 16, 1951; it gave defendant the right of custody each Sunday from 11 A.M. to 8 P.M., as well as for one month during the summer and on alternating holidays during the year. The support allowance was increased, without opposition, to $27 a week. Neither this order nor the judgment Nisi referred to the character of the religious upbringing the children were to receive.

In May 1951 plaintiff applied for an order restraining defendant from interfering with the religious training of the children. Her petition recites, among other things, that she had with defendant's knowledge resumed the Protestant faith and was attending the Zion Evangelical and Reformed Church in Newark; that her daughters had been attending Sunday School and services there since the divorce; that although defendant knew of this as well as of plaintiff's wish that the children not be brought up in another religion, he was nevertheless taking them to Catholic church; and that the children did not want to attend Catholic services and were 'confused and upset.'

Defendant, in turn, applied for an order specifying the religion in which the children were to be instructed and reared. His petition alleges that he first learned of plaintiff's intention not to stand by the antenuptial agreement and raise the children as Catholics in February 1951 when the parties were negotiating the terms of the order fixing the right of visitation. The petition further recites the details of the courtship and antenuptial agreement, the marriage divorce and custodial arrangement. Defendant alleges that the marital differences arose after his return from service when he learned that his wife had become dissatisfied with the limitations and lack of freedom of married life, and that she found the requirements of his religion too demanding and rigorous, albeit she still continued to respect her pre-marital promise to raise the children in the Church. He charges that she was influenced in this attitude by her mother, who was anti-Catholic. Defendant asks for an order determining that his daughters be reared in the Roman Catholic Church.

The only witnesses were the minister of the Zion Evangelical and Reformed Church and plaintiff. Defendant stipulated that the facts relating to plaintiff's early Lutheran background, the courtship, antenuptial agreement, engagement, marriage and court proceedings were as has here been stated; that plaintiff had resumed the Lutheran religion, leading the children back into the Protestant Church with her, and that he had been taking the children to his church on Sundays after their Lutheran Sunday School session.

Plaintiff testified that she separated from defendant because he associated with other women. Her decision not to continue in the Catholic faith was reached a month after the birth of her second child on September 22, 1946; she 'lost all faith' and did not consider it right that 'a man should get away with things like that and still be a devoted Catholic.' Nonetheless, she had Geraldine baptized in January 1947, entered Dianne in parochial school in September 1948, and took her to Sunday Mass until January 1950.

Plaintiff rejoined the Lutheran fold in January 1950--soon after defendant obtained his judgment Nisi--by 'renewal of profession of faith.' The children cannot become members of the church until they reach 12, and then only by confirmation.

Plaintiff and the children lived under the same roof with defendant until May 1950, when the house was sold. They now live with her mother and stepfather in Maplewood, N.J. Dianne is over nine years old and in the third grade of the local public school, where she was enrolled in September 1950. Geraldine, now almost seven, attends kindergarten there.

Plaintiff contends that having been entrusted with the custody of her two daughters she has the right to bring them up in the church which she attends. Defendant argues that their religious training should, in the exercise of sound judicial discretion, be continued in the Roman Catholic rite, and this because (1) plaintiff unconscionably seeks to change their religious education, and (2) she has lost her right to determine their training by reason of 'estoppel, waiver and abandonment.'

The resolution of the instant controversy cannot, of course, stem from any disposition on the part of the court to favor one body of religious thought and practice over another. No such disposition exists. In this State 'all Christian denominations stand on the same footing in the eye of the law.' In re Turner, 19 N.J.Eq. 433, 435 (Prerog. 1868). The nature of the religions here involved and the doctrines they teach are matters irrelevant to the present inquiry.

American courts have been remarkably free from litigation over the religious education of children. Decisions are few and relatively recent. Three lines of approach to the problem may be discerned.

The early English cases established the proposition that, except in special circumstances, the father's wishes governed the religious education his child was to receive. If he had failed to express such a wish, it was presumed that he would have desired the child to be raised in his religion, although he himself might have neglected to practice it. Friedman, 'The Parental Right to Control the Religious Education of a Child,' 29 Harv.L.Rev. 485, 488--491 (1916). The rule was enforced even when the result was 'to create a barrier between a widowed mother and her only child; to annul the mother's influence over her daughter on the most important of all subjects; * * *.' Hawksworth v. Hawksworth, L.R. 6 Ch. 539, 540 (1871). This doctrine received relatively little support in the United States (cf. Hernandez v. Thomas, 50 Fla. 522, 39 So. 641, 2 L.R.A.,N.S., 203 (Sup.Ct.1905)); it was critically examined by our former Court of Chancery in In re Flynn, 87 N.J.Eq. 413, 418--421, 100 A. 861 (Ch.1917). England has by statute abolished the superior right of the father (Guardianship of Infants Act (1925), 15 & 16 Geo. V, c. 45), and with it the convenient but harsh formulary of Religio sequitur patrem.

It may be observed that defendant does not seek to establish his right on the basis of that doctrine, nor could he. In New Jersey, as generally throughout the nation, the rights of both parents are, in the absence of misconduct, held to be equal as regards the care, nurture, education and welfare of the children of the marriage. R.S. 9:2--4, N.J.S.A.

A second line of authority holds that the question of a child's religious education is an internal affair of the home--and there the courts will not venture. Such was the view of New York's highest court in People ex rel. Sisson v. Sisson, 271 N.Y. 285, 2 N.E.2d 660, 661 (Ct.App.1936), where a disagreement arose between the parents over the education of their child and the court said:

'Dispute between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond...