State v. Greenberg

• Decision Date: 06 December 1954
• Docket Number: No. A--56,A--56
• Citation: 16 N.J. 568,109 A.2d 669
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Morris GREENBERG, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 568

16 N.J. 568

109 A.2d 669

The STATE of New Jersey, Plaintiff-Respondent, v. Morris GREENBERG, Defendant-Appellant.

No. A--56.

Supreme Court of New Jersey.

Argued Nov. 22, 1954.

Decided Dec. 6, 1954.

Murray Greiman, Jersey City, argued the cause for appellant.

Frank J. V. Gimino, Jersey City, argued the cause for respondent (Frederick T. Law, Prosecutor of Hudson County, Kearny, attorney).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

On March 3, 1953 the defendant was indicted under the Uniform Desertion and Nonsupport Act, R.S. 2:121--1 and 2, now N.J.S. 2A:100--1 and 2, N.J.S.A., upon his wife's complaint that on December 7, 1950 he deserted her and their month-old child and willfully neglected and refused to provide for their maintenance and support. He was convicted by a jury in the Hudson County Court on the counts charging the failure of duty toward his wife but was acquitted on the counts charging the failure of the same duty toward the child. The conviction was affirmed by unanimous vote in the Appellate Division, 30 N.J.Super. 592, 105 A.2d 683 (1954).

Defendant appeals to this court purportedly of right under R.R. 1:2--1(a), which allows an appeal of right in cases determined by the Appellate Division arising under the Constitutions of the United States or this State. We deferred decision upon the State's motion for dismissal of the appeal pending oral argument. We are satisfied that defendant has not met the test under R.R. 1:2--1(a) of a showing that a substantial constitutional question is involved, Starego v. Soboliski, 11 N.J. 29, 93 A.2d 169 (1952). Indeed, we question that the should be heard at all to argue the constitutional contention which does not appear to have been raised below. See State ex rel. Wm. Eckelmann, Inc., v. Jones, 4 N.J. 374, 72 A.2d 872 (1950). However, the appeal presents questions under the recently enacted Uniform Reciprocal Enforcement of Support Act, L.1952, c. 197, p. 697, since extensively amended by L.1953, c. 245, p. 1728, N.J.S. 2A:4--30.1 et seq., N.J.S.A.

This statute has not been considered heretofore by this court and we accordingly have decided to determine the meritorious questions argued, treating the appeal as if properly before us upon a grant of certification under R.R. 1:10--2(e) governing certification of causes where the Appellate Division has decided a question of substance relating to the construction or application of a statute of this State which has not been but should be settled by this court.

The Uniform Desertion and Nonsupport Law was adopted by New Jersey 37 years ago in L.1917, c. 61, p. 110. Under that law it is a misdemeanor for a husband to desert or willfully neglect or refuse to provide for the support and maintenance of his wife in destitute or necessitous circumstances or for a parent to fail in the same duty toward his minor child. However, 'The law's primary and ultimate objective is to secure an adequate support order, the criminal charge supplying coercive pressure to that end.' State v. Savastini, 14 N.J. 507, 516, 103 A.2d 249, 254 (1954). The proceeding, for that reason, has a dual aspect: the dependent's complaint initiates two separate and distinct proceedings, one civil and the other criminal. The complaint may be brought either in the County Court or in the juvenile and domestic relations court. This court has twice left open the question whether the criminal aspect of the offense is triable under summary procedure in the juvenile and domestic relations court, or only upon indictment and trial by jury in the County Court, and has expressed the hope, not yet fulfilled, that the matter would receive legislative attention. State v. Savastini, supra; State on Complaint of Bruneel v. Bruneel, 14 N.J. 53, 100 A.2d 882 (1953).

The National Conference of Commissioners on Uniform State Laws has long recognized that, while the Uniform Desertion and Nonsupport law 'sought to improve the enforcement of duties of support through the criminal law * * *, it made no reference to enforcement as against husbands and fathers who fled from the state.' 9A U.L.A., 1953 Supp., p. 53. The Uniform Reciprocal Enforcement of Support Act is designed to remedy this void. The statute 'attempts to improve and extend by reciprocal legislation the enforcement of duties of support through both the criminal and civil law.' Ibid. Thus the statute is merely supplemental to existing laws designed to compel support of dependents. To make this clear, section 3 of the act, N.J.S. 2A:4--30.3, N.J.S.A., expressly provides that 'The remedies herein provided are in addition to and not in substitution for any other remedies.'

A detailed two-state procedure is provided by sections 9 to 17 of the act, which are N.J.S. 2A:4--30.9 to 30.17 of our statute, N.J.S.A. Without in any wise binding ourselves to the views expressed by the National Conference of Commissioners as to the interpretation to be made of them, and reserving such matters and also the questions of due process raised thereby for determination in cases which properly present those questions, we quote the Commissioners' comments upon the sections (9A U.L.A., 1953 Supp., pp. 54--55):

'In the past, the greatest difficulty in enforcing support where the parties are in different states has been the expense of travel to a distant state to litigate the rights of the destitute obligee. Under this Act this expense can be reduced to filing fees plus a few postage stamps. In a nutshell, this two-state proceeding is as follows: It opens with an action (Section 9) which normally will be commenced in the state where the family has been deserted (the initiating state). A very simplified petition is filed (Section 10). The judge looks it over to decide whether the facts show the existence of a duty to support and if they do he sends the petition and a copy of this Act to a court of the responding state to which the husband has fled or in which he has property (Section 11). That court will take the steps necessary to obtain jurisdiction of the husband or his property, will hold a hearing (Section 12) and if the court finds that a duty of support exists, it may order the defendant to furnish support (Section 13) and will transmit a copy of its order to the court in the initiating state (Section 14). To enforce compliance with its orders the court may subject the defendant to such terms and conditions as it may deem proper, may require him to furnish bond or make periodic payments or, in case of refusal, may punish him for contempt (Section 15). It has the duty to transmit to the initiating court any payments it receives and upon request to furnish a certified statement of those payments (Section 16). The initiating court must receive and disburse these payments (Section 17).

'This simple two-state procedure can be carried out with a minimum of expense to the family or the state--the usual court costs and postage for the transmission of papers and money. Yet it preserves due process, for each party pleads in his own court. Provisions covering other details or procedure have been kept out of the Act so that the usual rules for obtaining jurisdiction for carrying on the procedure and for appeals may be held to govern.'

In the instant case the wife invoked the reciprocal legislation by complaint filed with the Hudson County Juvenile and Domestic Relations Court on September 17, 1952. The complaint sought an allowance of $40 weekly for the support of herself and the child. Defendant was living at his parents' home in the Bronx, where he had been living since December 7, 1950, the date of his alleged desertion of his wife and child in Jersey City. The juvenile and domestic relations court made the findings prescribed by N.J.S. 2A:4--30.11, N.J.S.A., and forwarded the required papers to the Family Court Division of the Domestic Relations Court of the City of New York, Bronx County. The New York court summoned defendant and without prior notice to the wife held a hearing on November 26, 1952 at which the husband alone testified. He swore that he was and had been unemployed since August 1952. The court found that he could readily find work in New York if he tried and that he had an earning capacity of $3,000 annually. The support order made, however, was for $15 weekly for the support of the infant only, with no allowance for the wife.

It was after this failure of her effort in that wise to obtain support for herself that the wife for the first time brought a complaint under the Uniform Desertion and Nonsupport Act resulting in the indictment handed up March 3, 1953 under which defendant was convicted.

Defendant argues that the proceedings under the uniform reciprocal law not having resulted in a support order for the wife, those proceedings must be deemed in law to operate as a bar to any action, civil or criminal, upon his wife's complaint under the Uniform Desertion and Nonsupport Act. He contends that the determination of the New York court is Res judicata upon the issues of his alleged desertion and willful neglect or refusal to support his wife, or that the wife elected the procedure and is bound by the result, or that our courts are compelled...