Schneider v. Schneider.

• Decision Date: 22 April 1947
• Docket Number: 155/701.
• Citation: 52 A.2d 564
• Parties: SCHNEIDER v. SCHNEIDER.
• Court: New Jersey Court of Chancery

52 A.2d 564

SCHNEIDER

v.SCHNEIDER.

155/701.

Court of Chancery of New Jersey.

April 22, 1947.

Suit for divorce by August Schneider against Catherine Schneider, wherein defendant counterclaimed for separate maintenance.

Petition and counterclaim dismissed.

Syllabus by the Court

.

1. A step-father, as such, is under no legal obligation to receive in any marital home or to maintain a child of his wife by a former husband.

2. Before one may be held as in loco parentis to a child it must appear that he means to so act.

3. So far as the maintenance of a child is concerned, the relation of in loco parentis to child is temporary in character.

4. Where a husband and wife are living in a state of separation, and neither

has committed a matrimonial offense warranting a divorce, and the wife sues for separate maintenance under the statute (R.S. 2:50-39, N.J.S.A.), she may not have a decree if she refuses to accept a bona fide offer of the husband for a resumption of marital living in a home to be provided by him unless the husband receives her child by a former husband in the marital home with her.

5. The wife's counterclaim for separate maintenance should be dismissed, but because of the circumstances, it should be dismissed without prejudice.

Weitz & Lasser, of Union City (Carl Weitz, of Union City, of counsel), for petitioner.

Burke, Sheridan & Hourigan, of Union City (John J. Joel, of Union City, of counsel), for defendant.

VAN WINKLE, Advisory Master.

(1) The husband sued the wife for a divorce on the ground of desertion alleged to have begun in March 1944, whereupon the wife counterclaimed for separate maintenance. The parties were married on April 27, 1943. The husband is about forty-four years old and the wife is about eight years younger. The wife has a child now ten years old by a former husband who lived with the parties during the time that they lived together.

The child of a wife by a former husband is not within the purview of our separate maintenance statute. (R.S. 2:50-39, N.J.S.A.) which provides for the separate maintenance of a wife and children of the parties; and so the counterclaim of the wife in this case does not pray for the maintenance of her child by her former husband.

The husband, with little command of the English language, testified that there was trouble with the wife about the child beginning two weeks after the marriage. ‘She say to me, I have nothing to say about the child, that's not my child, I am not the father from that child. She got very hot temper, and she called me’ (abusive names.) ‘She got mad, mad, pulled me on hair, left and right on the face * * * I said to my wife, please tell Marie to wash the hands and the face to start eat. She tell me’ (abusive names) ‘I am not the father.’ Further, he testified there were arguments about his giving money with which to buy clothing for the child; that the wife asked him to adopt the child and that he refused to do that. ‘I said no, I cannot be father from that child here. She tell me all right, get out, called me dirty names again.’ While the wife did not specifically deny any of this testimony, she did testify that the husband's drinking was the cause of all the trouble.

The husband and wife separated, after which they again lived together. They finally separated, as the husband testified, on March 27, 1944.

(2) The separation of husband and wife is disfavored, and when they are living in a state of separation, and neither has committed a matrimonial offense warranting a divorce, each has a right to terminate the separation. Upon a husband making a bona fide effort for a resumption of marital relations in a marital home to be provided by him he is not to be held as consenting to or acquiescing in a continuance of the separate living. If the wife refuses a bona fide offer of the husband to resume marital living in a marital home, she thereupon becomes a deserter; and she is not to have a decree for separate maintenance.

(3) In this case the husband has made bona fide efforts for a resumption of marital relations in a marital home to be provided by him, but the wife, while professing a willingness to so live with him, has continuously refused and still refuses to do so unless the husband permite her child by her former husband to live in any marital home as before.

Counsel for the wife contends that because the husband on his marriage voluntarily received the child into the marital home and there maintained it during the period that the husband and wife lived together, that now-although the husband and wife have been living separately for several years and the child has been with the wife for all of the separation period-that the wife has a right to refuse, as she does, to live with the husband unless he consents, as he does not, that the child shall live with her in any marital home as before as one of the family, so to speak. And, further, that, because the husband does not so consent, the wife is entitled to a decree for separate maintenance.

However, while the living of the child with the husband and wife, as before, as one of the family, so to speak, would inevitably result in the husband's maintaining the child, counsel has presented no argument concerning this feature.

In formulating the very general argument of counsel for the wife, that it might be precisely dealt with and disposed of, it was found to rest on assumptions for which the law gives no support and concerning which there is comparatively little in the law books, as should be expected, and concerning which there is nothing in point in New Jersey except a definition which is hereinafter stated.

These assumptions are (1) that a legal duty rests upon the husband as a step-father to receive and maintain the child in any marital home, and (2) that the husband now stands in loco parentis to the child and so is under a legal duty to receive and maintain the child in any marital home.

(4) A step-father, as such, is under no obligation by the English common law, to...