State on Complaint of Bruneel v. Bruneel, A--48

Decision Date07 December 1953
Docket NumberNo. A--48,A--48
Citation100 A.2d 882,14 N.J. 53
PartiesSTATE on Complaint of BRUNEEL v. BRUNEEL.
CourtNew Jersey Supreme Court

Samuel S. Black, Paterson, argued the cause for appellant.

Paul T. Huckin, Englewood, argued the cause for respondent (Harry L. Towe, Deputy Atty. Gen., attorney).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

The defendant husband appeals from an order of the Bergen County Juvenile and Domestic Relations Court adjudging him guilty 'as charged' under his wife's complaint that he 'willfully refuses and neglects to support' her and their minor child 'contrary to the provisions of Title 2A, Chapter 100--2.' While the appeal was before the Appellate Division we ordered certification on our own motion.

Under N.J.S. 2A:100--2, N.J.S.A., which originated in L.1917, c. 61, p. 110, New Jersey's version of the Uniform Desertion and Nonsupport Act, 10 U.L.A.:

'Any husband who deserts or willfully neglects or refuses to provide for the support and maintenance of his wife, in destitute or necessitous circumstances, or a parent who deserts or willfully neglects or refuses to provide for the support and maintenance of his or her minor child or children, in destitute or necessitous circumstances, is guilty of a misdemeanor.'

Upon conviction sentence, under the predecessor statute, R.S.2:121--2, was limited to a fine not exceeding $500 or imprisonment not exceeding one year, or both. These limitations were deleted when the present statute was enacted as part of the legislative revision ofTitle 2, L.1951, c. 344, First Spec. Sess. The convicted accused may now be fined up to $1,000 and imprisoned up to three years under N.J.S. 2A:85--7, N.J.S.A., applicable to misdemeanors 'for which no punishment is specifically provided', except that under N.J.S. 2A:100--4, N.J.S.A. (as was also true under the former law, R.S.2:121--4) the court, 'instead of imposing the penalty provided for by section 2A:100--2,' 'or in addition thereto,' 'having regard to the circumstances and to the financial ability or earning capacity of the defendant, may make an order, which shall be subject to change by the court from time to time as circumstances may require, directing the defendant to pay a sum certain periodically to the wife, or to the guardian or custodian of the minor child or children, or to an organization or individual approved by the court as trustee,' and the court 'may release the defendant from custody on probation, upon his or her entering into a recognizance, with or without surety, in such sum as the court may order and approve.'

The first question argued is whether the Juvenile and Domestic Relations court has jurisdiction to hear and determine complaints of alleged violations of N.J.S. 2A:100--2, N.J.S.A. That court is vested with jurisdiction by N.J.S. 2A:4--18, N.J.S.A., to hear and determine 'in a summary manner' disputes and complaints specified in subparagraphs a to f of N.J.S. 2A:4--18, N.J.S.A., including, under subparagraph c, disputes and complaints

'Involving violations of subtitle 12 (disorderly persons law) of this title (§ 2A:169--1 et seq.), and chapter 1 of Title 44, Poor (§ 44:1--1 et seq.), chapter 6 and chapter 17 of Title 9, Children (§ 9:6--1 et seq., and § 9:17--1 et seq.), and article 4 of chapter 5 of Title 30, Institutions and Agencies (§ 30:5--33 et seq.), of the Revised Statutes, Together with any other laws or future enactments covering similar complaints or offenses, where the gravamen of the complaint under such laws or enactments is the failure or neglect of 1 member of the family to satisfy or discharge his legal obligations to another member of the family.'

N.J.S. 2A:100--2, N.J.S.A., not being one of the specified statutes, the question is whether it is a law embraced within the emphasized clause. That it is a law the 'gravamen of the complaint under' which 'is the failure or neglect of one member of the family to satisfy or discharge his legal obligations to another member of the family' is clear. The denounced offense does not require the concurrence of desertion and nonsupport. The crime is committed if the accused deserts the dependent, in destitute or necessitous circumstances, or, without regard to desertion, if the accused willfully neglects or refuses to provide for the support and maintenance of the dependent, in destitute or necessitous circumstances. O'Brien v. State, 90 Tex.Cr.R. 276, 234 S.W. 668 (Ct.Cr.App.1921); Spicer v. State, 78 Tex.Cr.R. 57, 179 S.W. 712 (Ct.Cr.App.1915). The husband argues, however, that only laws under which an ingredient is desertion of the dependent in the sense of leaving the dependent without means of support and therefore likely to become a public charge fall within the emphasized clause, citing Van Keegan v. Juvenile, etc., Court, 132 N.J.L. 21, 38 A.2d 458 (Sup.Ct.1944), Boger v. Zimmerman, 132 N.J.L. 282, 39 A.2d 850 (Sup.Ct.1944), and Warner v. Gloucester County Ct. of Domestic Relations, 131 N.J.L. 455, 37 A.2d 82 (Sup.Ct.1944). But this argument overlooks the changes made by L.1946, p. 268, and L.1950, p. 1117, amending R.S. 9:18--14, the source of N.J.S. 2A:4--18, N.J.S.A., which introduced the italicised language in substitution for the earlier wording construed in the cited decisions, namely, 'where the gravamen of the complaint is the failure to provide support or adequate support, or desertion,' and substantially enlarged the jurisdiction of the Juvenile and Domestic Relations Courts. Lasasso v. Lasasso, 1 N.J. 324, 63 A.2d 526 (1949); Bonanno v. Bonanno, 4 N.J. 268, 72 A.2d 318 (1950).

The husband next argues 'that nowhere in the statute setting up the jurisdiction of the Juvenile (and Domestic Relations) Court is there any authority given it to try any criminal matters of an indictable nature and any trial of same is a nulity.' We understand the point to be that only offenses which may be heard and determined 'in a summary manner' are within the jurisdiction conferred by N.J.S. 2A:4--18, N.J.S.A. The argument is not answered by reference to the fact that this defendant executed a written waiver of indictment and trial by jury and a consent to be tried in the Juvenile and Domestic Relations Court. That court is a statutory tribunal with jurisdiction strictly limited to the subject matter set forth by statute, and jurisdiction cannot be conferred by consent. In re Daniecki, 117 N.J.Eq. 527, 177 A. 91 (Ch.1935) affirmed 119 N.J.Eq. 359, 183 A. 298 (E. & A.1936). Nor is it answered by N.J.S. 2A:4--35, N.J.S.A., authorizing a jury trial in an adult case, if demanded by the accused, since that section applies only if the adult 'is entitled to a jury trial' for the offense charged. If N.J.S. 2A:4--18, N.J.S.A., to the extent that it authorizes the hearing and determination of criminal offenses in adult cases 'in a summary manner,' is to be given the effect of confining the jurisdiction of the Juvenile and Domestic Relations Court to such adult offenses as may be prosecuted without indictment and trial by jury, we are met with the question whether the accused is protected under Article I, pars. 8, 9 and 10 of the Constitution of 1947 against prosecution for the instant offense except by indictment and trial by jury. See State v. Maier, 13 N.J. 235, 99 A.2d 21 (1953). The affirmative of that proposition may be difficult to sustain. The primary purposes of the statute is coercion of provision of support of wives and minor children, in destitute or necessitous circumstances, by him upon whom the law places the burden of their support, when he, being able to provide, deserts them or willfully neglects or refuses to support them. Cf. State v. Chaffman, 15 N.J.Super. 492, 83 A.2d 643 (App.Div.1951). The subject matter is of the nature originally cognizable by ecclesiastical courts. Our Chancery Court was first vested with jurisdiction to award support by L. 1818, p. 20; and 'as early as 1799, justices of the peace were given a summary jurisdiction in cases where a husband defaulted in the performance of the obligation to support his family.' Frank v. Juvenile, &c., Court of Essex County, 137 N.J.L. 364, 365--366, 58 A.2d 601, 602, (Sup.Ct.1948).

These considerations suggest that the offense is such only by statutory enactment and thus that it is punishable by a penalty without indictment. Cf. State v. Goldberg, 124 N.J.L. 272, 11 A.2d 299 (Sup.Ct.1940), affirmed per curiam, 125 N.J.L. 501, 17 A.2d 173 (E. & A.1940). True, upon summary conviction the authorized punishment is as severe as that prescribed for misdemeanors which may be prosecuted only by indictment and trial by jury. This is in contrast to the situations in State v. Anderson, 40 N.J.L. 224 (Sup.Ct.1878), Meyer v. State, 41 N.J.L. 6 (Sup.Ct.1879), affirmed 42 N.J.L. 145 (E. & A.1880), and State v. Goldberg, supra. And note the less severe punishment prescribed for other offenses triable in a summary manner, for example, for disorderly persons offenses generally, N.J.S. 2A:169--4, N.J.S.A., and for the disorderly person offense of willfully deserting a dependent, denounced by the Poor Act, R.S. 44:1--147, N.J.S.A., for which punishment is limited to confinement not exceeding 60 days in the workhouse or county jail.

We have no way of knowing whether, in revising the Desertion and Nonsupport Act as part of the comprehensive revision of Title 2 to delete therefrom matter of practice and procedure, the Legislature actually contemplated the drastically more severe penalty accomplished by the changes made in N.J.S. 2A:100--2, N.J.S.A. We can only note that such has been the effect, although at the same time the provision for summary trial in the Juvenile and Domestic Relations Court was carried forward into N.J.S. 2A:4--18, subd. c, N.J.S.A.

But whether the increased punishment is to be taken as evincing a legislative intent that the offense shall now be prosecuted only upon indictment and jury...

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