Test v. Test

• Decision Date: 29 January 1942
• Docket Number: No. 225.,225.
• Citation: 24 A.2d 226,131 N.J.Eq. 197
• Parties: TEST v. TEST.
• Court: New Jersey Supreme Court

24 A.2d 226

131 N.J.Eq. 197

TEST

v. TEST.

No. 225.

Court of Errors and Appeals of New Jersey.

Jan. 29, 1942.

Appeal from Court of Chancery.

Suit for divorce by Irene Test against Clayton Test, Jr., wherein the petitioner was awarded an absolute divorce and custody of a child of the marriage. From adverse orders concerning the defendant's right of visitation and custody of the child, the petitioner appeals.

Orders reversed, and cause remanded.

Emanuel Kohn, of Newark, for appellant.

Joseph H. Gaudielle, of Hackensack (James A. Major, of Hackensack, of counsel), for respondent.

PERSKIE, Justice.

This is a contest between divorced parents for the custody of their infant son.

The primary question requiring decision on the record submitted is whether the mother, to whom custody of the child had been awarded by order of the court was, as she claims, deprived of that custody without due process of law.

By the decree nisi entered on October 27, 1936, and made absolute on January 28, 1937, the marriage of appellant (referred to as mother) and respondent (referred to as father) was dissolved on the ground of extreme cruelty on the part of the father; the custody of the only child of the marriage (a boy then about five years of age) was awarded to the mother; the father was ordered to pay the mother $10 a week for the sole support of the child; and the father was given the right of limited visitation and custody of the child. On April 26, 1938, the father was adjudged guilty of contempt for having failed, as charged, to pay $168 which had then become due and, in pursuance of the usual practice, it was ordered that a warrant issue for his arrest.

From this point the record submitted is most confusing.

From the record thus submitted, it appears that with knowledge of the existence of the order of April 26, 1938, but before its provisions had been enforced, an Advisory Master of another Vicinage entertained a petition by the father seeking a change in the provisions of the decree nisi. This Advisory Master took hold of the cause; he orally instructed counsel for the mother not further to proceed with the order of April 26, 1938.

Thereafter, between June 14, 1938, and July 9, 1941, a series of petitions were filed and entertained, over objection to his right so to do, and some six or seven orders were entered by this Advisory Master concerning the right of visitation and custody of the child.

Although the mother appeals from each of the several orders entered, it will serve no useful purpose to detail the contents of each petition on which an order was based. For, it is conceded that the "major question raised" on this appeal arises out of the father's supplemental petition of September 20, 1939.

By this petition the father charged, in substance, as he did in the very first petition he filed on July 8, 1938, and in his subsequent petitions, that the child was in poor health as the result of malnutrition and lack of proper care, and, therefore, prayed, inter alia, that he be awarded custody of the child.

Pursuant to the prayer for relief, the Advisory Master advised the dispositive order of April 2, 1941, which was entered.

By this order the father was awarded the custody of the child with the "understanding" that the child should be placed under the care and tutelage of the father's mother who had indicated her willingness to assume that responsibility. This order was amended by an order (June 28, 1941) giving the mother the right of limited visitation and custody. The father thereby succeeded in completely changing the applicable provisions under the decree nisi entered on October 27, 1936.

We are thus met at the threshold of our consideration and determination of this cause with the posed question requiring decision. Our answer to that question is in the affirmative.

1. It is rudimentary that "due process of law" requires notice, timely and reasonable opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. Cf. State v. Zied, 116 N.J.L. 234, 236, 183 A. 210; Hinners v. Banville, 114 N.J.Eq. 348, 353, 168 A. 618.

Lack of orderly procedure is the pattern singularly characteristic of the proceedings resulting in the orders under review. No formal hearings were held. No formal proofs were submitted. Instead, true to pattern informal conferences were held between the Advisory Master and respective counsel on the petition of September 20, 1939. Nothing appears to have happened until March 29, 1941, when the Advisory Master wrote respective counsel that he had just received the medical report of the examination which Dr. Gilady (father's physician) had made of the child on February...