Royce v. Royce, 211.
| Decision Date | 17 October 1938 |
| Docket Number | No. 211.,211. |
| Citation | 1 A.2d 878 |
| Parties | ROYCE v. ROYCE. |
| Court | New Jersey Supreme Court |
Appeal from Court of Chancery.
Petition by Terese V. Royce against Earl J. Royce, her ex-husband, to have him adjudged in contempt for failure to pay sum ordered by court for support of their children, wherein the ex-husband answered and counterclaimcd for a reduction in the amount ordered for support of the children. From a ruling adjudging the ex-husband in contempt and denying his counterclaim, he appeals.
Reversed and cause remanded.
This appeal brings up for review an order of chancery under date of January 4, 1938. Under this order appellant, ex-husband, was adjudged guilty of contempt of court, and committed to the common jail of Hudson County for neglecting or refusing to pay certain balances ($1091.77) due under orders of the court. These balances were as follows: Due to respondent, his ex-wife, $773 for the support of their three children; due counsel for respondent $180 on account of allowances of fees, and $138.77 taxed costs. The appeal further brings up for review the dismissal of the husband's counterclaim for a reduction of the allowances made for the children from $20 a week to $7 a week.
Samuel S. Stern, of Jersey City (Morris L. Stern, of Jersey City, of counsel), for appellant.
Milton, McNulty & Augelli, of Jersey City (Anthony T. Augelli, of Jersey City, of counsel), for respondent.
The question requiring decision is whether the proofs support or justify the several mandates of the challenged order.
The parties were divorced in this state. It will serve no useful purpose to detail the several orders made in that cause concerning support of their three children. Suffice it to observe that under the last order so made, the husband was ordered to pay to his wife $20 a week towards their support. The wife sought no support for herself.
The husband was continuously in default. On April 27, 1937, the wife petitioned the court to have him adjudged in contempt because of an arrearage of $398. Upon a hearing he was, on May 14, 1937, adjudged in contempt, but with the concurrence of the wife, was given six months within which time to pay the arrearage. Again he defaulted. Thus on December 8, 1937, the wife again petitioned the court to have him adjudged in contempt. His arrearage then amounted to $1091.77. The husband answered by denying that he willfully disobeyed the order of the court and pleaded impossibility of performance because of a sharp decline in his earnings. He also counterclaimed for a reduction of the order of $20 a week to $7 a week.
The issues thus presented were heard before an advisory master upon affidavits.
Generally stated, the proofs disclose that the husband is engaged in the sale of automobiles. He receives a weekly wage of $15 plus commissions. From May 1, 1936, to April 30, 1937, he earned $1511.12 and out of that sum he paid $910, or about $17.50 a week on account of the order pending against him. From May 14, 1937, to December 8, 1937, he earned $567.26 and out of that sum he likewise paid $98 from May 15, 1937, to July 27, 1937, and thereafter paid at the rate of $7 a week, or a total of $238.
The proofs further disclose that the husband has re-married; that his wife works and that both live with his mother whom they pay $18 a week for their board and lodging.
Upon these proofs the advisory master concluded not only that the ex-husband be adjudged in contempt, and that his counterclaim be dismissed, but also that he be committed to the county jail there to remain until he pay the sum of $1091.77 unless sooner discharged by the chancellor.
As to the husband's counterclaim. While the husband was at the same time and in the same cause a suitor who was in default, the court, under the circumstances of the case at bar, had jurisdiction to entertain his counterclaim. Traudt v. Traudt, 116 N.J.Eq. 75, 80, 172 A. 749.
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