D. v. D., A--305

• Decision Date: 03 July 1959
• Docket Number: No. A--305,A--305
• Citation: 56 N.J.Super. 357,153 A.2d 332
• Parties: D., Plaintiff-Respondent, v. D., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 357

56 N.J.Super. 357

153 A.2d 332

D., Plaintiff-Respondent, v. D., Defendant-Appellant.

No. A--305.

Superior Court of New Jersey, Appellate Division.

Argued June 1, 1959.

Decided July 3, 1959.

Albert L. Cohn, Paterson, argued the cause for defendant-appellant (David & Albert L. Cohn, Paterson, attorneys, Richard Kurland, Paterson, on the brief).

Nicholas Martini, Passaic, argued the cause for plaintiff-respondent (Nicholas G. Mandak, Passaic, on the brief).

Before Judges GAULKIN, SULLIVAN and FOLEY.

PER CURIAM.

This appeal is taken by defendant from a support order made by the Juvenile and Domestic Relations Court of Passaic County. The 'approved statement of evidence' contained the the appendix follows:

'On November 5, 1958 the plaintiff filed a civil action in the usual form requesting support and maintenance for herself and three children, all bearing the defendant's name; (A) age 16, (B), age 14 and (C), age 12. On December 4, 1958 the hearing was adjourned at the request of defendant's counsel until December 18, 1958. On this day a hearing was held and the facts are found to be as follows: that the parties were legally married; that the oldest and youngest children, ages 16 and 12 respectively were children of the marriage, that as to the other child, 14 years of age, the mother testified on cross-examination that the defendant was not the father, that the middle child (14 yr. old) was supported by the defendant and was always a part of the family when the defendant was with the plaintiff, that after the defendant was aware of the situation respecting the parentage of the middle child, the parties cohabited and subsequently the youngest child was born; that the parties lived together intermittently until April, 1958 when the husband left; that the husband did not appear on December 18, 1958 and there was no legal evidence adduced to show that the defendant ever changed his position with respect to the middle child; that the defendant's mother appeared for him and his counsel asked the court to proceed without the defendant; that there was a dispute at that hearing as to whether the defendant was able to appear; his mother expressed the opinion that he could not and his wife expressed the opinion that he could; that the wife wanted the husband to return and resume their marital relations; that the husband received $190.00 a month from the Veterans' Administration, his only income, and the wife $143.00 from the same source (her only income) for herself and the three children; that the husband cannot work; that the wife does not work; that the following are the needs for the wife and three children:

                Rent .............................................. $35.00  a month
                Gas, heat and electric ............................. 38.00  a month
                Repayment of loans incurred for family expenses .... 21.00  a month
                Food--$34 a week for 4 x 4 1/3 .................... 147.00  a month
                Insurance and medical .............................. 25.00  a month
                                                                   -------
                                                                   $266.00  a month
                

that the husband's needs, living with his mother, were $90.00 a month; that a fair allowance under all the circumstances was to require the defendant to contribute from his income $100.00 for the support and maintenance of the wife and three children, giving her and them a total of $243.00 per month.

'Defendant was in the Army and was injured in 1944; he was in the Army Hospital until 1948. He spent ten months in Greystone in 1951 and then to Veterans' Hospital at Lyons until 1954. Since leaving Lyons he has lived with his wife and his mother until April 1958 when he left his wife.'

The court found the foregoing to be the facts and concluded that the defendant stands In loco parentis to the middle child and is required to support him. The defendant was ordered to pay as support for the family unit the sum of $100 monthly from his pension of $190 per month. Subsequent to the oral argument and at our request the trial judge furnished us with information relating to his reasons for...