Curley v. Curley

• Decision Date: 07 October 1955
• Docket Number: No. A--398,A--398
• Citation: 37 N.J.Super. 351,117 A.2d 407
• Parties: Jean CURLEY, Plaintiff-Respondent, v. Kryan CURLEY, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 351

37 N.J.Super. 351

117 A.2d 407

Jean CURLEY, Plaintiff-Respondent, v. Kryan CURLEY, Defendant-Appellant.

No. A--398.

Superior Court of New Jersey Appellate Division.

Argued Sept. 7, 1955.

Decided Oct. 7, 1955.

J. Mortimer Rubenstein, Paterson, for defendant-appellant (Malkin & Malkin, Hackensack, attorneys).

James A. Major, Hackensack, for plaintiff-respondent.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This action was brought by Mrs. Jean Curley against her former husband, Kryan Curley, from whom she had been divorced, to secure support for herself and three infant children, two of them born of their marriage and the third, Judith, an iullegitimate child. After their divorce, which had been secured in California in 1949, Mr. and Mrs. Curley cohabited in New Jersey, and Judith was born. Mr Curley does not deny paternity; in fact in the statement of facts appearing in his brief here, it is said that Judith was born of this cohabitation.

Subsequently Mrs. Curley brought an action in the Bergen County Juvenile and Domestic Relations Court and obtained an order requiring Mr. Curley to pay her a lump sum of $300 a month for the support of herself and her children. Then she commenced this action in the Superior Court, on the theory that the Bergen County Juvenile and Domestic Relations Court lacked jurisdiction because the Curleys 'were not husband and wife.'

The Superior Court awarded Mrs. Curley, Pendente lite, $150 per month for the support of herself and $75 per month for each of the three infants. 34 N.J.Super. 257, 112 A.2d 20. Mr. Curley appeals, raising three questions.

The first question goes to the insufficiency of the affidavits furnished below. On an application by a wife for the support of herself and her children Pendente lite, she is obliged to establish, among other things, the extent of their needs, Streitwolf v. Streitwolf, 58 N.J.Eq. 570, 574, 43 A. 904, 45 L.R.A. 842 (E. & A.1899), and the extent of her income and means. Verbeeck v. Verbeeck, 93 N.J.Eq. 17, 21, 115 A. 136 (Ch.1921); Westerfield v. Westerfield, 36 N.J.Eq. 195 (Ch.1882); Herr, 10 N.J.Practice 364 (1950).

From the affidavits here, it appears that Mr. Curley is paying Mrs. Curley $300 a month; further that--

'I (Mrs. Curley) have been employed in a clerical capacity * * * but * * * must give up this employment to care for my children.

'I have no property of any kind. I live with our children in an apartment for which I pay $92.00 a month. It is absolutely necessary to obtain a private home. One of the children needs extensive orthodontical work, the estimated cost of which is $4,000.00.'

This--all that the court had before it on the point--is plainly an insufficient statement as to the needs of Mrs. Curley and her children and a somewhat thin statement as to her earnings and income. We do not see how a court can say on the strength of these affidavits that the $300 a month which is being voluntarily paid by Mr. Curley does not meet the needs of herself and her children Pendente lite and that $75 in addition should be forthcoming.

The allowance of support Pendente lite is a matter resting in the discretion of the court below. Lasasso v. Lasasso, 1 N.J. 324, 329, 63 A.2d 526 (1949); Waltz v. Waltz, 16 N.J.Super. 119, 123, 83 A.2d 904 (App.Div. 1951). But manifestly here the affidavits furnished the court with an inadequate basis on which to exercise its discretion. The order allowing support will have to be reversed.

The second point argued here presents a novel constitutional question; but, we conclude, we are obliged to deal with it, as, upon the remand of the case, the parties will straightway be confronted with it. Borawick v. Barba, 7 N.J. 393, 81 A.2d 766 (1951) holds that Art. VI, Sec. III, par. 2 of the New Jersey Constitution does not invest the Superior Court with jurisdiction over a cause of action of a mother against a father for the support of their illegitimate child; such a cause is cognizable only in certain inferior courts. N.J.S.A. 9:16--2, 9:16--3, 9:17--1. We are of course governed by that holding. But the question here is different. Here we are called upon to consider whether another provision of the Constitution, Art. VI, Sec. III, par. 4, clothes the Superior Court with power to dispose of the entire controversy before us by reason of the fact that (we might say) two of the three matters in dispute between the parties lie within that court's competence.

The first of these matters is Mrs. Curley's claim for her own support. This claim is cognizable in the Superior Court (see N.J.S. 2A:34--23, N.J.S.A., expressly applicable where a divorce has been obtained in another state; see also 2A:34--8), but not in a Juvenile and Domestic Relations Court. Cf. Hughes v. Hughes, 125 N.J.Eq. 47, 4 A.2d 288 (E. & A.1939); Caravella v. Caravella, 36 N.J.Super. 447, 116 A.2d 481 (App.Div.1955); N.J.S. 2A:4--18, N.J.S.A.

Second, there is Mrs. Curley's claim for the support of the illegitimate child, Judith. This (as stated) is cognizable in certain inferior courts, including the Juvenile and Domestic Relations Courts--but not in the Superior Court, Borawick v. Barba, 7 N.J. 393, 81 A.2d 766, supra, except as Art. VI, Sec. III, par. 4, of the Constitution may confer authority upon that court pursuant to the argument now being examined.

Third, there is Mrs. Curley's claim for the support of the two legitimate children. This is cognizable in either the Superior Court, N.J.S. 2A:34--23, 9:2--1, N.J.S.A., or (we may assume, without deciding the matter--the question is not raised in the briefs) a Juvenile and Domestic Relations Court, N.J.S.A. 2A:4--18(b). We may observe as an aside at this point that the order of the Bergen County Juvenile and Domestic Relations Court, providing a lump sum of $300 for the wife and children, cannot be said to be Res judicata as to the amount due the children. Mrs. Curley is of course seeking an increase in the award on their behalf. She doubtless (the point has not been raised by the parties) will endeavor to adduce proof as to conditions arising subsequent to the Bergen County Juvenile and Domestic Relations Court order, such as the loss of the salary she has been receiving as a clerk. Where such conditions arise altering the rights of the parties, the order of the Bergen County Juvenile and Domestic Relations Court is no bar to relief in the Superior Court. Lasasso v. Lasasso, 1 N.J. 324, 63 A.2d 526 (1949). Nor does the fact that the award was lumped in the lower court preclude a consideration of these matters in the upper court.

The precise question, then, is whether Mrs. Curley is obliged to bring one action against Mr. Curley in the Superior Court with respect to her claim for her own support and a second action against him (which also should be brought in her own name, Kopak v. Polzer, 4 N.J. 327, 331, 72 A.2d 869 (1950)) in the Juvenile and Domestic Relations Court (or another inferior court) with respect to her claim on Judith's behalf. Her claim as to the two legitimate children could be joined in the Superior Court action or perhaps (as we have assumed above) the Juvenile and Domestic Relations Court action.

Art. VI, Sec. III, par. 4 of the Constitution, dealing with the Superior Court, provides 'Subject to rules of the Supreme Court, the Law Division and the Chancery Division shall each exercise the powers and functions of the other division when the ends of justice so require, and Legal and equitable relief shall be granted in any cause so that all matters in controversy between the parties may be completely determined.' (Italics added.)

We think it plain that the term 'legal * * * relief,' as used in this clause, is not to be confined to the redress afforded by the former Supreme and Circuit Courts at the adoption of the Constitution. We therefore regard it as of no consequence that the relief sought here on Judith's behalf was not cognizable in those courts at that time. Manifestly the jurisdiction of the Superior Court was not laid out in the Constitution in terms of the jurisdiction then existing in the former courts. Mr. Justice Jacobs, as a delegate to the Constitutional Convention, had this to say on the convention floor on August 18, 1947, speaking for a draft of Judicial Article which in this regard is substantially the counterpart of that which was adopted (see 2 Constitutional Convention, 1947, p. 1174):

'* * * you will see that we have deliberately avoided any jurisdictional statements with respect to law and equity.' 1 Constitutional Convention, 1947, p. 474.

There was clearly a deliberate endeavor here on the part of the Constitution makers not to follow the methods of the 1844 Constitution and the amendments proposed in 1909, under which the only constitutional power granted to the constitutional courts was the power possessed by a preexisting court. Art. X, Sec. I (last sentence), 1844 Constitution; L.1909, c. 239, p. 380, sec. 5, pars. 2 and 3.

Furthermore, we regard it as of no consequence that the relief sought on Judith's behalf is statutory in origin. Surely the term 'legal * * * relief' is not to be limited to such relief as was given by the common law. Folwell's Case, 68 N.J.Eq. 728, 731, 62 A. 414, 2 L.R.A.,N.S., 1193 (E. & A. 1905).

But--and this is the crux of the matter here--are the words 'legal * * * relief' in this context so to be defined as to exclude relief which under a statute is cognizable only in an inferior court? Or does the sweeping 'constitutional mandate * * * (for) a unified court system' (see O'Neill v. Vreeland, 6 N.J. 158, 166, 77 A.2d 899 (1951), referring to the unification sought in the Superior Court) carry with it an implied grant of authority unto the Superior Court, enabling it to deal with a fragment of the controversy before it that could not have been litigated there, were that the only issue between the parties?

There are no...