Daly v. Daly

Decision Date28 May 1956
Docket NumberNo. A--142,A--142
PartiesMary Catherine DALY, Plaintiff-Respondent, v. George J. DALY, Jr., Defendant-Appellant.
CourtNew Jersey Supreme Court

James S. Ely, Rutherford, argued the cause for appellant.

Milton T. Lasher, Hackensack, argued the cause for respondent.

The opinion of the court was delivered by

OLIPHANT, J.

This is an appeal from an order and judgment of the Juvenile and Domestic Relations Court of Bergen County requiring the defendant-appellant to pay $32 per week for the support and maintenance of four minor children, said payments to be made to the Probation Office of Bergen County and then to be sent to the Juvenile Court in the County of Jefferson, Kentucky. The order is conditioned on the plaintiff-respondent permitting the defendant-appellant reasonable visitation rights with the four children at their place of residence in Kentucky, permitting the defendant-appellant to have the children with him at least one month during the summer of each year to be selected by him, and requiring the appellant to pay the traveling expenses of the children from Kentucky to the appellant's home in this State and their return.

We certified the cause here on our own motion. R.R. 1:10--1(a).

In 1955 the wife filed a verified complaint under the Uniform Reciprocal Support Act in Kentucky after taking a pauper's oath. The Kentucky statute, P.L.1954, c. 190, KRS 407.010--407.360, being the Uniform Act, contains relevant and reasonably similar provisions to our Uniform Reciprocal Enforcement of Support Act, N.J.S. 2A:4--30.1 et seq., L.1952, c. 197, as amended by L.1953, c. 245, N.J.S.A.

The complaint was filed in the Juvenile Court of Jefferson County, Kentucky, as the intiating state, and was certified and transmitted to the Juvenile and Domestic Relations Court of Bergen County, the court with jurisdiction in New Jersey as the responding state, pursuant to the provisions of N.J.S. 2A:4--30.11, 12, N.J.S.A. The defendant was and is a resident of Bergen County in this State. The County Adjuster of Bergen County appeared below and here. N.J.S. 2A:4--30.12, N.J.S.A.

This statute contains a new approach in interstate cooperation to enforce the support of dependents. It expressly provides that 'the remedies herein provided are in addition to and not in substitution of any other remedies,' N.J.S. 2A:4--30.3, N.J.S.A. We are in accord with the expression of the Appellate Division 'every endeavor should be made by the courts to render this statute operable, for the objectives of the legislation are very worthy.' Pfueller v. Pfueller, 37 N.J.Super. 106, 117 A.2d 30, 32 (App.Div.1955). However, we made our position clear in State v. Greenberg, 16 N.J. 568, 573, 109 A.2d 669 (1954), that we were not willing to lend ourselves to the views expressed by others, including the National Conference of Commissioners, but would confine our interpretation of the statute only to such questions as they are properly presented in each case.

The enforcement of an act of such broad sweep and unique procedural purposes will present some constitutional, jurisdictional and procedural questions with respect to specific provisions of the act and their application to individual family situations consistent with the public policy of this state in accordance with the general principles of comity. Cf. Fantony v. Fantony, 21 N.J. 525, 122 A.2d 593 (1956). So far there is very little decisional law, but many theoretical questions and objections have already been explored. Commonwealth ex rel. Shaffer v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430, 42 A.L.R.2d 768; 37 A.B.A. Journal, pp. 93, 97; 17 Missouri L.Review 1; 31 Oregon L.Review 97, 98 (1952); U.L.A.9A and notes of the Uniform Commissioners therein. There is a careful review of these problems in 17 Pittsburgh L.Rev. 261 (1956).

The presumption is that a statute is constitutional, and it is a settled rule that a statute will not be declared inoperative and unenforceable unless it is plainly in contravention of a constitutional mandate or prohibition. It is the duty of the courts to so construe a statute as to render it constitutional if it is reasonably susceptible of such interpretation, and to see that its enforcement is confined within constitutional limitations. St. John the Baptist Greek Catholic Church of Perth Amboy v. Gengor, 121 N.J.Eq. 349, 189 A. 113 (E. & A.1937); Lynch v. Borough of Edgewater, 8 N.J. 279, 85 A.2d 191 (1951); Woodhouse v. Woodhouse, 17 N.J. 409, 416, 111 A.2d 631 (1955).

It is universally recognized that the family is the basic unit of the complex society in which we live and that its stability is indispensable to the public welfare and health, morals and upbringing of children is its core and essence. A child has the right to be equipped for its future mature life, and this equipment is nothing more than education in its generic and inclusive sense, implying physical, intellectual and moral development. This has been recognized in all civilizations, with few exceptions since Crito said to Socrates, 'No man should bring children into this world who is unwilling to persevere to the end in their nurture and education.' Plato, Crito (Jowett transl. 1871). Cf. Jonitz v. Jonitz, 25 N.J.Super. 544, 96 A.2d 782 (App.Div.1953).

But due to the present mobility of our people the problem of enforcing a father's duty to so support his children is not without technical jurisdictional and procedural difficulty where jurisdiction rests solely on the fiction of the marital domicile. We have made it clear that our public policy aims to prevent this State from becoming a haven for fathers against whom orders of support have been entered in foreign jurisdictions, Conwell v. Conwell, 3 N.J. 266, 273, 69 A.2d 712 (1949), and we have made it equally clear that state lines do not and should not make court barriers in the absence of overriding constitutional limitations. Woodhouse v. Woodhouse, supra, 17 N.J. at page 417, 111 A.2d at page 635 (1955). The Uniform Reciprocal Enforcement of Support Act, N.J.S. 2A:4--30.1 et seq., as amended by L.1953, c. 245, N.J.S.A., gives concrete expression and application to these principles, and establishes additional remedies for a wife or children in need of support in actions easy to initiate when the father of the family unlawfully refuses to furnish the support and there are intervening state lines between their established residence and his. The principles of comity would seem to require that where a state can civilly aid the father's duty to support his children by obtaining in personam jurisdiction of a father where necessary, it should do so. Cf. Woodhouse v. Woodhouse, supra, 17 N.J. at page 417, 111 A.2d at page 635; O'Loughlin v. O'Loughlin, 6 N.J. 170, 179, 78 A.2d 64 (1951).

We have thus stated in broad and general terms the principles generally applicable to questions of support of children, but these statements should not be construed that this court will countenance a constitutional trespass on the rights, civil or criminal, of the father when properly asserted. As in all marital questions arising under the inherent statutory jurisdiction of our courts in divorce, nullity and the custody and support of children, each case must be decided on its particular facts. In this case we are not called upon to apply the provisions of the statute, N.J.S. 2A:4--30.1 et seq., N.J.S.A., to an order of support for the respondent wife, since no such application was made in the initiating state.

Here the appellant and respondent were married on July 27, 1945, and lived in their jointly owned home in Rutherford, New Jersey, until June 13, 1951. Four children were born of the marriage, who at the present moment are all under the age of ten years. Trouble arose in this home over the husband's alleged drinking, and in June 1951 the wife left the State and took the children with her to her parents' home in Kentucky. In July 1951 the wife filed a complaint in the Bergen County Juvenile and Domestic Relations Court charging her husband with cruelty and asking for support for herself and the four children. She appeared for the hearing of the case but all efforts to settle that proceeding were unsuccessful and led to further recrimination and she returned to Kentucky.

The appellant contends he went to Kentucky in the same year and attempted to have his wife return to the home in Rutherford, which he had continued to hold and did hold until June or July 1952, when the house was sold for $3,200 and half of these net proceeds were paid to the wife. The visit to Kentucky also had the purpose of appellant receiving certain treatments at a Veterans' Hospital there, the nature of which is not clear from that part of the record which we have considered in this case, but the effort at reconciliation in Kentucky resulted in still further recriminations. But one fact stands out clearly--that other than the property payment the appellant has not contributed to the support of these small minor children since June 1951.

Judge Kole below carefully examined the application of the Uniform Reciprocal Enforcement of Support Act to this factual situation and the duties that this appellant, as a father, owed to the children under the law of this State and he found that all that is required for jurisdiction in the Juvenile and Domestic Relations Court of this State as the responding state in a proceeding under the provisions of this reciprocal statute is the 'presence' of the husband or father (obligor) in this State; the presence or residence of the children or the wife (obligee) in another state, and the existence of a duty of support on the part of the father under the laws of this State. Citing N.J.S. 2A:4--30.4, 2A:4--30.7, N.J.S.A. Smith v. Smith, 131 Cal.App.2d 764, 281 P.2d 274, 278 (Ct.App.1955); Mahan v. Read, 240 N.C. 641, 83 S.E.2d 706, 712 (Sup.Ct.1954). See also Smith v. Smith, ...

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