Kopack v. Polzer., A-362.
| Citation | 68 A.2d 484 |
| Decision Date | 29 September 1949 |
| Docket Number | No. A-362.,A-362. |
| Parties | KOPACK v. POLZER. |
| Court | Superior Court of New Jersey |
OPINION TEXT STARTS HERE
Margaret Kopack sued Fred Polzer in criminal judicial district court to enforce defendant's obligation to support complainant's illegitimate child of which the defendant was the father.
The trial court dismissed the complaint because of a release given by complainant eight years previously, and the complainant appealed.
The Superior Court, Appellate Division, Bigelow, J.A.D., held that the release was no defense and reversed the judgment.
Before Judges JACOBS, DONGES and BIGELOW.
Samuel D. Joseph, Passaic, for complainant-appellant (Riskin & Riskin, Passaic, attorneys).
Joseph A. Feder, Passaic, for defendant-respondent (Feder & Rinzler, Passaic, attorneys).
The opinion of the court was delivered by
BIGELOW, J.A.D.
The appellant made a complaint in one of our criminal judicial district courts alleging that the defendant is the father of her illegitimate child aged 10 years, and praying that he be ordered to provide for the maintenance of the child. Parentage was not disputed; but the defendant had made a settlement with the complainant and had taken a release from her eight years earlier, and for this reason her complaint was dismissed.
The action was brought under Chapter 16 of Title 9 of the Revised Statutes, which enacts that ‘a child born out of wedlock shall be entitled to support and education from its father and mother to the same extent as if born in lawful wedlock.’ R.S. 9:16-2, N.J.S.A. The statute also directs that ‘consideration shall be given to the age of the child and the ability and financial condition of the parent or parents.’ R.S. 9:16-3, N.J.S.A. Proceedings to enforce this obligation may be maintained by one parent against the other before a magistrate or in a court exercising jurisdiction in bastardy proceedings pursuant to Chapter 17 of the same title.
The duty of parents to support their infant child born in wedlock was said by Justice Depue to have been only a moral obligation at common law. Freeman v. Robinson, 38 N.J.L. 383, 20 Am.Rep. 399, (Sup.Ct. 1876). See also Alling v. Alling, 52 N.J.Eq. 92, 27 A. 655 (Pitney, V.C. 1893); In re Ganey, 93 N.J.Eq. 389, 116A. 19 (Fielder, V.C.1921), and 39 Am.Jur., Par. & Child, s 35 et seq. But for more than a century we have had statutes, both civil and criminal, implementing certain phases of that duty. The enactment that seems of primary importance in the present suit is R.S. 2:50-37, N.J.S.A., the section of the divorce act empowering the Chancery Division pending a divorce action, or after decree of divorce, to make an order ‘touching the care, custody, education and maintenance of the children.’ Another statute gives the court the same power when the parents live separately as when they are divorced. R.S. 9:2-3, N.J.S.A.
It seems to us that the legislature, in the enactment of Chapter 16 of Title 9, intended that such a case as the one before us should be decided upon the same principles as if the parties had been married and divorced, or were living separately, and the mother having custody of the child were suing the father in the Chancery Division for its maintenance.
For eighty years before 1902, the Court of Chancery, upon granting a divorce, could not require the mother, but only the father, to pay for the support of their child. Rev.Laws 1820, p. 668, s 9. This restriction was omitted from P.L.1902, Ch. 157, s 19, and the court directed to make such order ‘as the circumstances of the parties and the nature of the case shall render fit, reasonable and just.’ R.S. 2:50-37, N.J.S.A. The tendency to equalize the responsibility of parents may be seen in the 1921 amendment of the act concerning minors, inserting a provision that the parents ‘shall be equally charged with their (the children's) care, nurture, education and welfare.’ R.S. 9:2-4. As to the effect of such statutes generally, see annotation, 131 A.L.R. 862. The trial court, in a proceeding under R.S. 9:16-2...
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Monmouth County Div. of Social Services for D.M. v. G.D.M.
...parent is bound to provide a child with necessities. See Tomkins v. Tomkins, 11 N.J.Eq. 512, 517-18 (Ch.1858); Kopack v. Polzer, 5 N.J.Super. 114, 117, 68 A.2d 484 (App.Div.1949), aff'd 4 N.J. 327, 328, 72 A.2d 869 (1950); Greenspan, supra, at 432, 97 A.2d 390; Grotsky v. Grotsky, 58 N.J. 3......
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Grotsky v. Grotsky
...enactments bearing on parental duties. See Mowery v. Mowery, Supra, 38 N.J.Super. at 98--99, 118 A.2d 49; Kopack v. Polzer, 5 N.J.Super. 114, 115--116, 68 A.2d 484 (App.Div.1949), aff'd, 4 N.J. 327, 72 A.2d 869 (1950). The enactment most pertinent here is found in N.J.S.A. 2A:34--23; see al......
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E.I.B. by I.J. v. J.R.B.
......9:16-3 on its own behalf. 1 Kopak v. Polzer, 5 N.J.Super. 114, 117, 68 A.2d [611 A.2d 664] 484 (App.Div.1949), aff'd, 4 N.J. 327, 72 A.2d 869 ......
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Com. v. Dillworth
...county may institute a similar proceeding. See Tuohy v. Boynton, 5 N.J.Super. 265, 68 A.2d 851 (1949); Kopack v. Polzer, 5 N.J.Super. 114, 68 A.2d 484 (1949). Any of the three possible parties--the mother, the alleged father or the welfare agency--may, under N.J.S.A. 9:17--20, appeal the de......