State v. Savastini

• Decision Date: 01 March 1954
• Docket Number: No. A--93,A--93
• Citation: 103 A.2d 249,14 N.J. 507
• Parties: STATE v. SAVASTINI.
• Court: New Jersey Supreme Court

Page 507

14 N.J. 507

103 A.2d 249

STATE v. SAVASTINI.

No. A--93.

Supreme Court of New Jersey.

Argued Feb. 1, 1953.

Decided March 1, 1954.

Frank M. Lario, Camden, for appellant.

E. Milton Hannold, Pros. of Gloucester County, Woodbury, for respondent.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

The jurisdiction of the Gloucester County Juvenile and Domestic Relations Court to enter a support order under the Uniform Desertion and Nonsupport Act, N.J.S 2A:100--2 et seq., N.J.S.A., in favor of a wife living in Gloucester County against a husband resident in Camden County, is the single question raised by this appeal which was brought here of our own motion while pending in the Appellate Division.

The defendant husband appeared before the Gloucester County Court on October 16, 1952, in response to an order to show cause way a support order should not be granted upon his wife's sworn complaint, filed September 6, 1952, charging, not desertion, but the alternative ground under the act, State v. Bruneel, 14 N.J. 53, 100 A.2d 882 (1953), that from July 29, 1952 he 'wilfully refused and neglected' to support her, 'she being in necessitous circumstances.' The wife had moved to Gloucester County on July 29, 1952, to live with her sister, leaving her husband at their Camden County home.

The parties arrived at a settlement on October 16 during the course of the hearing. They endorsed their consents to the order under attack which, dated October 16, 1952, recites that the husband and wife 'having reached an agreement as to the amount of a weekly order to be paid for the support and maintenance' of the wife, the defendant 'shall pay the sum of $15.00 weekly' for her 'support and maintenance' to the chief probation officer.

At the close of the hearing of October 16 the court, according to the parties' stipulation, 'set November 6, 1952 at 1:30 p.m. as the date for a formal hearing in the matter.' It further appears from the stipulation that when the parties appeared on November 6 'the defendant through his counsel declined to proceed with a formal hearing at the time stated and at the time signed a consent order' agreeing to pay $15 weekly 'to the Chief Probation Officer' for the support of his wife. But there is no order dated November 6 in the official court record. The only support order filed is that of October 16, and as that is the order to which the subsequent proceedings to vacate are expressly addressed, that order would appear to be the only support order which was entered in the proceeding. We conclude that what happened on November 6 was that the order of October 16, which was a temporary or Pendente lite order authorized by N.J.S. 2A:100--3, N.J.S.A., was continued in effect by mutual consent upon the understanding that it was to be treated as a permanent order for future support authorized by N.J.S. 2A:100--4, N.J.S.A.

The several sections, pertinent to our inquiry, of the uniform act adopted in New Jersey with some modifications 37 years ago, L.1917, c. 61, now read:

'2A:100--2. Desertion or nonsupport of wife or children in destitute or necessitous circumstances

'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. If a fine be imposed, the court may direct the same to be paid in whole or in part to the wife, or to the guardian, custodian or trustee of said minor child or children.

'2A:100--3. Order of support pendente lite

'At any time after a sworn complaint is made charging an offense under section 2A:100--2 of this title, and before trial, the court having jurisdiction may enter such temporary order as may seem just, providing for the support of the wife or children, or both, pendente lite, and may punish a violation of such order as for contempt.

'2A:100--4. Order for future support; release on recognizance conditioned on obeying order

'Before trial, with the consent of the defendant, or at the trial, on entry of a plea of guilty, or after conviction, instead of imposing the penalty provided for by section 2A:100--2 of this title, or in addition thereto, the court, 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. 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 condition of the recognizance shall be such that if the defendant shall personally appear in court whenever ordered to do so, and shall comply with the terms of the order, or of any modification thereof, the recognizance shall be void, otherwise in full force and effect.

'2A:100--5. Violation of order

'If the court be satisfied by information and due proof under oath that the defendant has violated the terms of the order, it may forthwith proceed with the trial of the defendant under the original charge, or sentence the defendant under the original conviction or plea of guilty, or enforce the suspended sentence or punish for contempt, as the case may be. In case of forfeiture of a recognizance, and the enforcement thereof by execution, the sum recovered may, in the discretion of the court, be paid in whole or part to the wife, or to the guardian, custodian or trustee of such minor child or children.

'2A:100-7. Proof of desertion

'Proof of desertion of the wife, child or children in destitute or necessitous circumstances, or of neglect or refusal to provide for the support and maintenance of such wife, child or children in destitute or necessitous circumstances, shall be prima facie evidence that the desertion, neglect or refusal was willful.

'2A:100--8. Place of residence confers jurisdiction of offense

'The place of residence at the time of the desertion of the wife, child or children, under the provisions of this chapter, shall confer jurisdiction of the offense set forth therein, upon the county, county district, criminal judicial district or juvenile and domestic relations court having territorial jurisdiction of the place of such residence until the deserted party shall establish a legal residence in some other county or state.'

The proceedings to vacate the order of October 16 were brought in May 1953 by defendant's present counsel who replaced former counsel after defendant fell into arrears and was imprisoned upon being adjudged in contempt. The ground urged, and repeated in the brief here, is that the juvenile and domestic relations court of a county may entertain jurisdiction of a complaint under the uniform act only when the parties' matrimonial domicil is in such county or the complaining wife shows that, within the principle stated in Shepherd v. Ward, 5 N.J. 92, 74 A.2d 279 (1950), she is entitled to maintain therein a separate domicil apart from her husband by reason of his acquiescence, by his abandonment of her or by his Delictum. If the objection does go to the court's jurisdiction of the subject matter of the complaint, it was not waived by defendant's consents of October 16 and November 6 to the entry of the support order, State v. Bruneel, supra.

Defendant refers to decisions interpreting former versions of the Juvenile and Domestic Relations Court Law as limiting the jurisdiction of the juvenile and domestic relations courts as to adult offenses to offenses of which desertion was one ingredient and proof that the wife was likely to become a public charge was another. VanKeegan v. Juvenile, etc., Court, 132 N.J.L. 21, 38 A.2d 458 (Sup.Ct.1944); Coffey v. Coffey, 125 N.J.L. 205, 14 A.2d 485 (Sup.Ct.1940). But neither those decisions nor the statute they construed in any wise suggests the additional limitation requiring that the action be brought in the county of the parties' matrimonial domicil or where the wife was entitled to have a domicil apart from her husband. If offenses under the uniform act were not cognizable by those courts under the Juvenile and Domestic Relations Court Law as it then read, it was because desertion is not an element of the offense under the uniform act if willful neglect and refusal to support is shown, or because N.J.S. 2A:100--4, N.J.S.A. authorizes a support order in an amount commensurate with the husband's financial ability or earning capacity and does not restrict the award to such amount as will prevent the dependent from becoming a public charge. At all events, these restrictions upon jurisdiction of offenses under the uniform act were removed by amendments to the Juvenile and Domestic Relations Court Law by L.1946, p. 268, and L.1950, p. 1117, embodied in N.J.S. 2A:4--18, N.J.S.A. which superseded R.S. 9:18--14. The uniform act is a statute the 'gravamen' of offenses under which 'is the failure or neglect of 1 member of the family to satisfy or discharge his legal obligations to another member of the family' within N.J.S. 2A:4--18(c), N.J.S.A. State v. Bruneel, supra. And authority is now expressly invested in juvenile and domestic relations courts to grant support orders in amounts commensurate with the husband's financial ability or earning capacity. Lasasso v. Lasasso, 1 N.J. 324, 63 A.2d 526 (1949); Bonanno v. Bonanno, 4 N.J. 268, 72 A.2d 318 (1950).

Defendant next argues that the uniform act itself restricts jurisdiction of offenses thereunder to the court of the county of the parties' matrimonial domicil or wherein the wife is...