Kopak v. Polzer

• Decision Date: 24 April 1950
• Docket Number: No. A--110,A--110
• Citation: 72 A.2d 869,4 N.J. 327
• Parties: KOPAK v. POLZER.
• Court: New Jersey Supreme Court

Page 327

4 N.J. 327

72 A.2d 869

KOPAK v. POLZER.

No. A--110.

Supreme Court of New Jersey.

Argued March 20, 1950.

Decided April 24, 1950.

Jack Rinzler, Passaic, argued the cause for the appellant (Feder & Rinzler, Passaic, attorneys).

Samuel D. Joseph, Passaic, as Amicus curiae argued the cause at the request of the Court for the respondent.

The opinion of the court was delivered by

VANDERBILT, C.J.

This Court granted the defendant's petition for certification of the judgment of the Appellate Division of the Superior Court reversing a judgment of the First Criminal Judicial District Court of Passaic County dismissing the plaintiff's complaint. Thereafter the plaintiff sought to withdraw from the appeal, but we denied her motion because of the interest of her child in the appeal and instructed her counsel to argue the cause as Amicus curiae, using the brief he had filed in opposition to the defendant's petition for certification.

The plaintiff and defendant are the mother the father respectively of an illegitimate child, the custody of which is now and has always been with the plaintiff. In June, 1938, shortly after the child was born, the Overseer of the Poor of Clifton, at the instance and on the declaration of the plaintiff here, commenced filiation proceedings against the defendant under the provisions of R.S. 9:17--2, N.J.S.A. The defendant entered a plea of guilty, whereupon on order was made directing him to pay $3 per week for the support of the child as well as $50 for confinement expenses and to post a bond of $500 to secure compliance with the filiation order. The defendant complied with the order.

Subsequently on September 26, 1940, the plaintiff and the defendant entered into an agreement whereby upon the payment of a lump sum of $400 by the defendant to the plaintiff the filiation bond should be discharged of record and the defendant released by the plaintiff-mother from any order for support under the filiation order. On application to the court an order was entered releasing the defendant 'from any further order for support and maintenance under a filiation order heretofore signed by me in this cause' and discharging the bond of record. The Overseer of the Poor consented to the order 'without prejudice to the interest of Clifton under the poor and/or relief laws and to any future court action deemed necessary to protect the interest of said City by the Overseer of the Poor.'

On November 1, 1948 the plaintiff-mother commenced the present action for the purpose of compelling the defendant to provide for the maintenance of their child in the First Criminal Judicial District Court of Passaic County under R.S. 9:16--2, 3, N.J.S.A., which provide:

'9:16--2. 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.

'9:16--3. Proceedings to enforce the obligations imposed by section 9:16--2 of this title may be maintained by one parent against the other, or by the person having physical custody of the child, or, if the child is or is likely to become a public charge, the proceedings may be instituted by the overseer of the poor of the municipality or municipalities where the father and mother, or either of them, reside. In such proceedings consideration shall be given to the age of the child and the ability and financial condition of the parent or parents.

'Jurisdiction of proceedings hereunder shall be had by the magistrates or courts exercising jurisdiction in bastardy proceedings pursuant to chapter 17 of this title (§ 9:17--1 et seq.).'

The Court dismissed the complaint on the ground that, although the mother of an illegitimate child may not release the rights of the child against the father for support, she was precluded from making an application for support against the father by virtue of the release earlier given by her to the father in 1940. The release is not before us except as it may be inferred from the order of September 26, 1940. On appeal the appellate Division of the Superior Court reversed the judgment of the trial court and remanded the case for a new trial.

The defendant's first contention on this appeal is that the order of September 26, 1940 in the previous proceeding under R.S. 9:17--2, N.J.S.A., is a bar to the present complaint made under the provisions of R.S. 9:16--2, 3, N.J.S.A. This contention is obviously without merit for it is specifically provided in R.S. 9:16--4, N.J.S.A. that 'the remedy given by sections 9:16--2 and 9:16--3 of this title shall be deemed cumulative as to remedies contained in chapter 17 of this title (9:17--1 et seq.).' The defendant's assertion that 'the Legislature did not provide that a parent may be jeopardized by dual proceedings' flies into the face of this express provision of R.S 9:16--4, N.J.S.A., to the contrary and must therefore fail.

The argument is next made that the present proceeding is defective in that the action is brought by the mother on her own behalf and is not an action on behalf of her illegitimate child. This contention likewise cannot prevail in the light of R.S. 9:16--3, N.J.S.A.: 'Proceedings to enforce the obligations imposed by section 9:16--2 of this title may be maintained by one parent against the...