Smith v. Smith

• Decision Date: 18 November 1964
• Docket Number: No. 260--J--64,260--J--64
• Citation: 85 N.J.Super. 462,205 A.2d 83
• Parties: Page 462 85 N.J.Super. 462 205 A.2d 83 Victoria W. SMITH, Plaintiff, v. Richard S. SMITH, Defendant. Juvenile and Domestic Relations Court Morris County, New Jersey
• Court: New Jersey Superior Court

Page 462

85 N.J.Super. 462

205 A.2d 83

Victoria W. SMITH, Plaintiff, v. Richard S. SMITH, Defendant.

No. 260--J--64.

Juvenile and Domestic Relations Court Morris County, New Jersey.

Nov. 18, 1964.

Albert B. Jeffers, Morristown, for plaintiff (Jeffers & Mountain, Morristown, attorneys).

T. Louis Mintz, Morristown, for defendant.

POLOW, J.J.D.R.C.

This opinion will provide the statement required by R.R. 6:3--11 of reasons for the determination entered by order dated October 16, 1964, filed November 6, 1964, reducing defendant's obligation for support of two infant children from $60 to $30 per week, after plaintiff had removed the children from this State to Florida to seek a divorce.

The matter was first heard on May 13, 1964. Testimony at that hearing established the following facts: Plaintiff and defendant are 25 and 28 years of age respectively. They were married August 15, 1959, in Morristown, and had lived together in the Morristown area from that date until they separated on April 3, 1964. Plaintiff then left their jointly owned home taking with her the two infant children of the marriage, a boy under two and a girl just over three years of age. Plaintiff sought to justify her leaving by her testimony concerning alleged repeated abusive conduct by defendant while under varying degrees of alcoholic influence.

Although plaintiff declined to attribute to defendant the characteristics of a 'drunk' or an 'alcoholic' she nevertheless insisted that he drinks excessively and becomes nasty when drinking. She described numerous scenes including slapping, pushing, pulling and threats of physical harm, commencing in June 1960 and culminating on April 3, 1964, at which time she told defendant that she was leaving 'to think things over.'

She described defendant, a Princeton graduate employed by the General Electric Credit Corporation as manager of its Morristown office at $8,500 a year, as a generous, good husband who becomes nasty and abusive when drunk. He customarily has a couple of drinks on his way home from work and then two or three more before dinner. He has been unwilling or unable to cope effectively with this problem and she described an intense fear of his violent temper. On the other hand, she does not deny that he loves his children and they love him.

At the suggestion of the court and with consent of counsel no determination was made on plaintiff's application for support for herself at the original hearing but the matter was continued and both parties ordered to consult with a psychiatrist appointed by the court at the expense of defendant. During that interim period defendant agreed to pay the sum of $40 per week for support of the two children and visitation privileges were established.

Thereafter, the parties made six visits to the court-appointed psychiatrist during May and June of 1964 and two reports were sent by the doctor to the court through the probation department. On June 19, 1964 the parties again appeared before the court. They advised that they had been visiting the psychiatrist and future visits were contemplated. Plaintiff was still unwilling to return to defendant but both parties indicated they would continue to seek marital guidance. They had been 'dating' each other and defendant was permitted to visit with the children.

In his first report dated June 1, 1964, the psychiatrist indicated his concern about the children and his concurrence with the court's opinion that these parties should not be separated and that 'their marriage, for at least the children's sake deserves another chance.' He further indicated that they were both in need of marital counseling and that the blame rested with both parties, who were equally guilty of shirking their marital responsibilities. However, in his second report dated July 4, 1964, the psychiatrist concluded that 'even though I dislike seeing these people separate, I have concluded that their personalities are so incompatible that they will never make their marriage work.' The first report was more favorable toward defendant but the second report leaned somewhat in favor of plaintiff.

The parties appeared in court again on July 9, 1964, at which time plaintiff would no longer consider a reconciliation although defendant was steadfast in his profession of love for his wife and his desire that his family return to live with him. Plaintiff did not dispute the sincerity of his professed feelings but insisted that he was unable to change and that living with him would endanger her physical and mental well-being.

Defendant testified concerning the factual allegations of plaintiff and described his income and expenses. The court found that plaintiff had not produced evidence of 'cruel and inhuman conduct' to justify her separation from defendant and was therefore not entitled to support under N.J.S. 2A:4--18, N.J.S.A. The sum of $60 per week was awarded for support of the two infant children. The order also provided for the hours of defendant's visitation rights. There was no attack on the original order by either party.

On October 2, 1964 defendant, his attorney and plaintiff's attorney appeared in court on the return date of defendant's application for a modification of the original order. Defendant testified that his primary reason for seeking modification of the support order was his inability to meet his weekly payments and satisfy all of his personal obligations. However, after the application for reduction had been filed, he received a telephone call from plaintiff indicating that she had taken the children out of New Jersey, that she was calling from Maryland on her way to Florida and that she was going to Florida with the intention of obtaining a divorce. She said she had been advised that no grounds existed for a divorce in New Jersey. This testimony was not contradicted by plaintiff's counsel who participated fully in the proceedings. Counsel for both sides agreed to submit briefs and on October 16, 1964, the existing order was modified in that the amount of support for the two children was reduced from $60 to $30 per week on the following grounds:

1. Plaintiff had effectively deprived defendant of his right to visit with his children, which right had been established as an incident to the original order of support, in that she had removed the children from New Jersey to Florida for the purpose of obtaining a divorce, contrary to the public policy of this State as set forth in N.J.S.A. 9:2--2.

2. The order of support granted on July 9, 1964, in the sum of $60 per week for the two infant children, was based upon testimony of plaintiff with regard to her needs and expenses to provide for the two children. The circumstances surrounding such needs and expenses had changed with the removal of the children from the State and there was no longer any evidence of the requirements of plaintiff for support of the children before the court.

With regard to the first ground, it has been held to be the general rule that the duty of the husband to support children of the marriage and his right of visitation are not interdependent. Daly v. Daly, 39 N.J.Super. 117, 120 A.2d 510 (Juv. & Dom.Rel.Ct.1956) affirmed 21 N.J. 599, 123 A.2d 3 (1956). Plaintiff argues that based upon this principle and upon the natural obligation of a father for the welfare of his children, who should not be punished for their parents inability to get along, this court lacks the power to grant a reduction on this application. Plaintiff argues further that based upon the authority contained in In re Stevens, 27 N.J.Super. 276, 99 A.2d 373 (App.Div.1958), the Juvenile and Domestic Relations Court has no jurisdiction over custody and visitation, as stated in plaintiff's brief 'where the issue of support is the only issue before the Court'.

Although the Daly case and others in New Jersey and other states stand for the proposition that the obligation to support is not as a general rule dependent upon the right of visitation, Bruguier v. Bruguier, 12 N.J.Super. 350, 354, 79 A.2d 497 (Ch.Div.1951); 34 A.L.R.2d 1456; 67 C.J.S. Parent & Child § 15, p. 695; Fiore v. Fiore, 49 N.J.Super. 219, 227, 139 A.2d 414 (App.Div.1958), nevertheless a compelling contrary philosophy permeates almost all decisions relating to rights of visitation. This philosophy includes not only the obligation of both parents to love and know their children, but also the right and privilege a child has in getting to know, love and respect both parents. 'No court should permit either parent to interfere with the successful attainment of these facets of a child's welfare.' Fiore v. Fiore, 49 N.J.Super. 219, 228, 139 A.2d 414, 419 (App.Div.1958); In re Jackson, 13 N.J.Super. 144, 147, 80 A.2d 306 (App.Div.1951). Where the welfare of the children requires that they have reasonable visitation with their father, the courts have not been loath to bring pressure on the mother to make such visitation rights effective by using the economic sanction of temporarily depriving her of support for the children or reducing such support. Daly v. Daly, supra, 39 N.J.Super. 117, at p. 125, 120 A.2d 510.

'One of the devices used by the courts to give effectiveness to a father's visitation rights, where the children have been taken out of the State by the mother to a place so distant as in effect to destroy such rights, is to reduce, discontinue or suspend an existing order for the support of the children until the children are returned or until in some other fashion the father's visitation rights can be fully protected. See Feinberg v. Feinberg, 72 N.J.Eq. 810, 66 A. 610 (Ch.1907); Von Bernuth v. Von Bernuth, 76 N.J.Eq. 200, 74 A. 252 (Ch.1909); Bobinski v. Bobinski, 285 App.Div. 836, 137 N.Y.S.2d 432 (App.Div.1955); Beddini v. Beddini, 281 App.Div. 701, 117 N.Y.S.2d 511 (App.Div.1952); In re Schwartz, 279 App.Div. 1090, 113 N.Y.S.2d 455 (App.Div.1952); Goldner v. Goldner, 284 App.Div. 961, 135 N.Y.S.2d 337 (App.Div...