White v. White

• Decision Date: 20 July 1903
• Citation: 65 N.J.E. 741,55 A. 739
• Parties: WHITE v. WHITE.
• Court: New Jersey Supreme Court

55 A. 739

65 N.J.E. 741

WHITE

v. WHITE.

Court of Errors and Appeals of New Jersey.

July 20, 1903.

(Syllabus by the Court.)

Appeal from Court of Chancery; Reed, Vice Chancellor.

Proceedings by Hope V. Stahl White against Howard M. White for the support of children after divorce. From the order entered, defendant appeals. Affirmed.

Edwin Robert Walker, for appellant.

Linton Satterthwait, for respondent.

PITNEY, J. The parties to this appeal were divorced by the decree of an Oklahoma court made in the year 1896.' There are two children of their marriage, both of whom are still minors, and for whose maintenance the decree of divorce made no provision. In the year 1897, the children being inhabitants of this state, the Court of Chancery entertained a petition filed by the mother under section 24 of the act concerning divorces, approved March 27, 1874 (Gen. St. p. 1271). The father appeared, and on December 16, 1897, it was ordered and decreed by the chancellor that the petitioner (the present respondent) should have and retain the custody and care of the two children, and that the father (now appellant) should pay to the mother for the support and maintenance of the children the sum of $3 per week for the period of one month from the date of that order, and until the further order of the court, and that the mother should be at liberty at the expiration of the period of one month to apply to the court for an increase in the amount to be paid by the father for the maintenance and support of the children. Some time after the expiration of the month, Mrs. White filed a petition asking that the amount allowed for the maintenance of the children should be increased. Mr. White having in the meantime become a resident of the state of Pennsylvania, notice of this application was served upon him there, without a special order of the court being first made in respect to the manner of service. The learned vice chancellor, conceiving that under section 24 of the divorce act a previous direction of the court with respect to the manner of giving notice of an application to increase the allowance was jurisdictional, declined to hold Mr. White to answer the petition. Thereupon, in the month of April, 1902, on application by the petitioner, the chancellor made an order directing that notice of the application be served personally upon the appellant, and such service was made upon him in the city of Philadelphia. He thereupon ordered a special appearance for the purpose of objecting to the jurisdiction of the court on the ground that his domicile and residence were outside of the state of New Jersey. Upon the hearing of that objection it was overruled on the ground that the terms of section 24 of the act had been complied with by the giving of such notice as the court had directed, and an order was made requiring the appellant to answer the petition. From this order he now appeals.

The pertinent sections of the divorce act are as follows (Gen. St. p. 1271):

"23. That upon a decree of nullity or divorce, the court may make such further decree or order as may be deemed expedient, concerning the care, custody and maintenance of the minor children of the parties, and determine with which of the parents the children, or any of them, shall remain; and may also from time to time afterwards, on the petition of either of the parents, revise and alter such decree or order, and make a new decree or order, as the circumstances of the parents and the benefit of the children shall require.

"24. That after a divorce decreed in any other state or county, if minor children of the marriage are inhabitants of this state, the Court of Chancery, on the petition of either parent, or of a next friend in behalf of the children, such notice being given to both parents as the court shall direct, may make such decree concerning their care, custody, education and maintenance as if the divorce had been obtained in this state."

The Legislature of 1902, in revising the statutes, included the substance of the former section in section 19 of the act concerning divorces. P. L. 1902, p. 507. The provisions of section 24 were embodied as section 6 in the new act concerning minors, etc. Id. p. 263. The divorce act of 1874 was at the same time repealed, but with a saving of existing rights and of pending suits and proceedings. Id. p. 268. By the terms of section 24 the court is empowered to make the same decree concerning the care, custody, education, and maintenance of minor children who are inhabitants of this state, where the parents have been divorced in another state, as the court could make if the divorce had been obtained in this state. This refers us to section 23 for the limits of the jurisdiction and the mode of exercising it. The provision there contained is that, where a divorce is decreed, the court may not only make, at the time of decreeing the divorce, an order respecting the care, etc., of the children, but may also from time to time afterwards revise and alter this decree or order, and make a new decree or order, as the circumstances of the parents and the benefit of the children shall require. The act clearly recognizes the continuing duty of the parent to support the children during their minority, and provides for the enforcement of that duty by retaining the parent subject to the jurisdiction of the court so long as the duty continues, to the end that the money allowance may be in creased or diminished, and the provisions respecting the care, custody, education, and maintenance of the children may be varied from time to time...