State v. Chaffman, A--546
| Decision Date | 08 October 1951 |
| Docket Number | No. A--546,A--546 |
| Citation | 15 N.J.Super. 492,83 A.2d 643 |
| Parties | STATE v. CHAFFMAN. |
| Court | New Jersey Superior Court — Appellate Division |
Leonard Tolkoff, Morristown, argued the cause for appellant (Edward F. Broderick, Morristown, attorney).
John D. Collins, Morris County Prosecutor, Morristown, argued the cause for respondent; Bertram M. Berla, Dover, on the brief.
Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.
The opinion of the court was delivered by
McGEEHAN, S.J.A.D.
The defendant appeals from a judgment entered on April 11, 1951, in the Morris County Court, adjudging that, as of December 9, 1949, he was $485 in arrears on an order for the support of his wife, entered in that court on November 18, 1946, adjudging him guilty of criminal contempt for willfully refusing to comply with said order and committing him to the Morris County Jail for imprisonment for a period of 90 days, unless sooner discharged by the court.
On November 18, 1946, before the Court of Quarter Sessions of Morris County, the defendant pleaded not guilty to an indictment charging him with desertion and nonsupport of his wife, she being in destitute and necessitous circumstances, in violation of R.S. 2:121--2, N.J.S.A. At that time he consented to the entry of an order which required him to pay to the probation officer, as trustee for his wife, the sum of $5 per week and provided for his release on probation upon his entering into a recognizance with himself as surety in the sum of $500. The defendant entered into this recognizance and was released on probation.
On February 21, 1951, a motion was made by the county prosecutor to adjudge the defendant in criminal contempt of court, and in the moving papers it was set forth that:
'2. On November 18, 1946, defendant consented to an order of this Court requiring defendant, Raymond McKinley Chaffman, to pay $5.00 per week to the Probation officer, for the support of his wife.
'3. On February 7, 1947 by order of this Court defendant was ordered to pay $15.00 per week for the support of his wife.
'4. * * * On November 7, 1947, defendant appeared before the Court and was released from custody and ordered to comply with said order of $15.00 per week and to pay $5.00 per week on arrears, which had accumulated to that date.
'7. Defendant has made no payments on account of said orders since November 26, 1947, and there is now due (after consider the order, as having been suspended, during the period of defendant's injury from November 28, 1947 to May 25, 1949) and owing upon said orders of November 18, 1946 and February 7, 1947, the sum of Eight Hundred and Ten Dollars, up to December 9, 1949. * * *'
An order to show cause issued which ordered the defendant to show cause 'why he should not be adjudged in criminal contempt of this court for the failure and neglect of the defendant, Raymond McKinley Chaffman, to comply with orders of this court in the above entitled matter, which orders were dated November 18, 1946, February 7, 1947, and November 7, 1947, concerning payment of support monies to the chief probation officer of the County of Morris, for the support and maintenance of defendant's wife, Bessie Chaffman.'
When the hearing opened, the attorney for defendant made application for the fixing of an early date for the trial of the indictment or, in the alternative, for dismissal of the indictment. From the record before us, it does not appear that the court took any action upon this application.
On this appeal we are not concerned with the claimed violation of the order of February 7, 1947, or the order of November 7, 1947, because there was no proof that either order was binding on the defendant. At the hearing it was conceded that the defendant had paid $310 on account of the order of November 18, 1946, and that the total amount due as of December 9, 1949, was $410 if this order was suspended from November 28, 1947, to May 25, 1949, as stated in the motion papers. The defendant tendered to the court $105 as full payment of the arrears on the order for the periods charged, on his theory that a total of $410 became due during these periods and he had already paid $305 thereof (actually $310). The trial court refused the tender on the ground that the allegation made by the chief probation officer in the moving papers, that the order was considered as suspended during the period of the defendant's injury from November 28, 1947, to May 25, 1949, was without any force because the power to suspend the order rested in the court alone. The court then found that under the 1946 order the defendant was required to pay $5 per week during the whole period from November 18, 1946, to December 9, 1949, which amounted to $795; that he had paid $310 thereof, leaving a balance due as of December 9, 1949, of $485, and adjudged the defendant guilty of a criminal contempt because he was in arrears on the 1946 order in the amount of $485.
Reference must be made to the legislation involved. The Uniform Desertion and Non-Support Act (10 Uniform Laws Annotated) was adopted in New Jersey, with some change, by L.1917, c. 61, and is now found in R.S. 2:121--2 to 2:121--7, inclusive, N.J.S.A. The defendant was indicted for violation of R.S. 2:121--2, N.J.S.A., and the 1946 support order was made pursuant to R.S. 2:121--4, N.J.S.A. Sections 2:121--2 to 5 provide:
'2:121--2. Any husband who shall desert or willfully neglect or refuse to provide for the support and maintenance of his wife, in destitute or necessitous circumstances, or a parent who shall desert or willfully neglect or refuse to provide for the support and maintenance of his or her minor child or children, in destitute or necessitous circumstances, shall be guilty of a misdemeanor, and shall be punished by a fine not exceeding five hundred dollars ($500.00) or imprisonment with or without hard labor, as the court may direct, for a term not exceeding three years, or both. If a fine be imposed, the court may direct...
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