Pieretti v. Pieretti

• Decision Date: 26 January 1935
• Citation: 176 A. 589
• Parties: PIERETTI v. PIERETTI.
• Court: New Jersey Court of Chancery

176 A. 589

PIERETTI

v. PIERETTI.

Court of Chancery of New Jersey.

Jan. 26, 1935.

Syllabus by the Court.

1. It is not necessary to produce the body of a child into court by writ of habeas corpus in order that an order may be made for its support; the proper practice being upon petition to the chancellor, as parens patria, in a summary manner.

2. The term "residence," as used in Divorce Act of 1907 (2 Comp. St. 1910, p. 2021), includes not only the factum of residence, but also the animus manendi; the residence required by the statute being equivalent to domicile.

3. A feme covert's residence follows that of her husband but terminates with the reason upon which it rests; when the union between the two ceases, and an attitude of hostility arises, they may each have different residences.

4. The unity of domicile exists during coverture unless the wife acquires one elsewhere by the husband's consent; that such consent may be either actual or constructive and may be manifested by acquiescence, by abandonment, or by such conduct inimical to cohabitation as would secure to the wife a decree of divorce a vinculo or a mensa et thoro.

5. Where the residence or domicile of a wife is once established, it is presumed to continue unless there be proof of the acquisition of a new domicile or residence; and to establish the latter more than a mere change of abode is requisite; it must be animus manendi.

6. The domicile of a legitimate unemancipated minor, whose will cannot concur with the fact of residence, is, if his father be living, the domicile of the father; a minor cannot change his domicile of his own will.

7. The legislative intendment in enacting section 97—21 of "An Act to amend an act entitled 'An act concerning minors, their adoption, custody and maintenance (Revision of 1902)'" (1 Cum. Supp. 1924 to Comp. St. p. 1556) was to have it considered and applied as a complement to section 25 of the Divorce Act (2 Comp. Stat. 1910, p. 2035) particularly to the extent of individuating the responsibility for the support and maintenance of infant children of the marriage, because the word "nurture," used therein, means to give nourishment to, to feed, to bring or train up, to educate.

8. As applied to section 25 of the Divorce Act, supra, "circumstances of the parties" is construed to mean the financial ability of the husband and wife jointly, and "party so charged" is construed to mean whichever parent is decreed to educate and maintain the children of the marriage.

9. The reasonableness of the amount to be allowed for the support and maintenance of an infant whose care and custody have been awarded to his mother will depend largely upon his needs and the financial ability of his mother and father, respectively.

10. If the mother, to whom has been awarded the care and custody of an infant of the marriage, has means of her own she will be held to contribute to his support and thus diminish the amount to be paid by his father; the rule in this respect not differing materially from that applied in the case of allowance of permanent alimony.

11. In fixing the amount of support and maintenance for an infant committed to the care and custody of his mother, consideration must be given to the care and attention the mother will be required to give to the infant, the assistance, if any, the mother will receive from him, and all other surrounding circumstances that will tend to equalize the financial burden between the parents, as nearly as may be.

Suit by Arturo Pierettl against Letizia Innocenti Pieretti, wherein defendant filed application for an order awarding custody of a minor child to her and to compel complainant to support and maintain such child.

Order in accordance with opinion.

Alfred A. Franck, of Union City, for petitioner.

David Weinick, of Newark, for defendant.

N. DEMAREST CAMPBELL, Advisory Master.

The facts are: The parties were married in 1912 and lived together in this state until August, 1925. During that month the wife left for Italy, accompanied by two children of the marriage. She was then pregnant, the child, Gino, having been born in Italy two months later. Her transportation, and that of the two children, was arranged and paid for by the husband. Her departure was under the friendliest of circumstances. In 1931 the husband visited his wife and children in Italy, remaining there for about a month. One of the children, who accompanied the wife to Italy, died there after the husband's return to this state. Their seventeen year old daughter returned with the husband and has ever since been in his custody. Subsequently, the husband filed his petition in this court for divorce for the cause of desertion. The wife filed an answer; service upon her having been by publication. The cause came on for final hearing, at which the wife was represented by counsel. A decree nisi was advised by me. At the conclusion of final hearing the question of custody and support and maintenance of Gino was continued for the purpose of permitting counsel to submit briefs.

Counsel have not submitted, nor do I find, any reported cases in this state wherein a similar situation has been adjudicated.

The husband resists this application, generally, on the ground that while jurisdiction of this court was obtained over the wife and such of the children of the marriage as were domiciled in this state, or in the United States, it has not acquired nor can it acquire jurisdiction over Gino because he has never been out of the Kingdom of Italy; that the boy is beyond the jurisdiction of this court because its writ of habeas corpus would be ineffective in compelling his physical presence before this court. It is not the rule, as applying to the latter reason, that a writ of habeas corpus is the proper procedure. In Power v. Power, 65 N. J. Eq. 93, 55 A. 111, it was stated that it is not necessary to produce the body of a child into court in order that an order may be made for its support; that the proper practice is upon petition to the chancellor, as parens patria, in a summary manner. See, also, Nelson v. Wergland, 101 N. J. Eq. 334, 146 A. 32; Vincent v. Vincent, 108 N. J. Eq. 136, 154 A. 328.

Authority for this court to make an order for custody and maintenance in the matter sub judice is found in section 25 of the Divorce Act (2 Comp. Stat. 1910, p. 2035) which is, in part, as follows: "Pending a suit for divorce or nullity, or after decree of divorce, it shall be lawful for the court of chancery to make such order * * * touching the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties [italics are mine] and the nature of the case shall be rendered fit, reasonable and just, and to require reasonable security for the due observance of such orders, and upon neglect or refusal to give such reasonable security as shall be required, or upon default in complying with the order, to award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged. [Italics are mine.] * * *" The portions which I have italicized I will refer to later.

As to the domicile of the husband in this state there is no dispute. As to the domicile of the wife: In Hess v. Kimble, 79 N. J. Eq. 454, 81 A. 363, Vice Chancellor Learning held, inter alia, that the term "residence," as used in our Divorce Act of 1907 (2 Comp. Stat. 1910, p. 2021), includes not only the factum of residence, but also the animus manendi; the residence required by statute being equivalent to domicile.

In Tracy v. Tracy, 62 N. J. Eq....