Ziesel v. Ziesel

The opinion of the court was delivered by Teenci-iakd, J.

This, as will be seen, is an appeal from an •order of the court of chancery requiring the appellant to pay for the support, maintenance and education of his minor son, Edward Ziesel.

The facts and circumstances giving rise to the order under review are these:

The parties to the action, Dr. and Mrs. Ziesel, were married January 27th, 1889. Three children were born, of whom Edward, the one concerned here, is the youngest. They were divorced in Pennsylvania December 21st, 1914. No provision was made in that decree for the support and maintenance of Edward. Apparently, the parties removed to Wildwood, New Jersey, and in the early part of 1916 Mrs. Ziesel filed a bill m the court of chancery for the support of Edward, the minor child, and no question was raised as to the jurisdiction of the court. On July 10th of that year a decree was entered in that proceeding awarding the care, custody and education of Edward to Mrs. Ziesel, and requiring Dr. Ziesel to pay $5 per week to Mrs. Ziesel for his support, maintenance and education, and leave was granted by the decree to either party to apply thereafter for such variance or modification thereof as changing circumstances might render equitable and just. In November, 1920, Mrs. Ziesel petitioned for a greater allowance, saying that Edward had attained the age of sixteen years and was a “second year high school student;” that his father’s income was from $10,000 to $15,000 per year; that she desired to send the boy to a preparatory school, which *156 she named, where the board and tuition was $1,000 per year. ' It was on that petition that the court of chancery made the order now under review requiring Dr. Ziesel to pay to Mrs. Ziesel for the support and maintenance of Edward $10 per week, arid an additional sum of $980 annually for his education.

We are of the opinion that such order cannot be sustained.

It appears that Dr. Ziesel is a dentist, having offices in Wild-wood, in this state, and in Philadelphia, Pennsylvania; that he is doing much research work in connection with his profession; that prior to the divorce he settled upon Mrs. Ziesel approximately $40,000 of property in Wildwood, from which she has an income of about $2,600 a year, and that the other two children of the marriage are of age and self-supporting. It further appears that after the parties were divorced the doctor married again and has one child by that marriage; and, while, he is not living with his second wife, he is obliged to support her and his daughter by that marriage.

The learned vice-chancellor found as a fact, and we think rightly, that the annual net income of Dr. Ziesel was approximately $4,500, out of which, of course, he had to pay for the support of his second wife and his daughter, and also such sum as may be awarded in this proceeding for the support and education of his son Edward.

Now, Dr. Ziesel seems to find no fault with the order so far as it relates to support and maintenance. His objection is to that part of the order relating to allowance for education, and his objection really is to the expense of- board and tuition at a boarding school, his contention being that attendance at a high school is adequate and preferable for his son for present purposes. The doctor testifies that he has always insisted upon a public school education for his children; that “this preparatory school [selected by the mother] does not rank as high as the average public high school,” and in this connection it is to be noted that he further testifies that Edward had “voluntarily” left another boarding school in which; quite recently, he had been placed by his mother, but whether with or without the consent of his mother does not appear.

*157 It is not questioned that the court of chancery has power to make a proper order touching the education of the son such as “the circumstances of the parties and the nature of the case” shall render “fit, reasonable and just.” Comp. Stat. p. 2035 § 25.

The order under review seems to be predicated upon some legal duty of a father to send his son to a boarding school if he can do so without “crippling him,” and this the vice-chancellor thought the present order would not do, and hence he required an expenditure of one-third of the father’s income for the support and education of this one son, made up in large part of boarding school expenses.

But a father is under no legal duty to- send his son to a boarding school, no matter what his financial circumstances may be. True, many a father does it at a sacrifice to himself and other members of his family, but he does so voluntarily. That may be a commendable thing to do. No doubt the vice-chancellor bad .such instances in mind. But after all, if a father sees fit to content himself with a common public school and high school educa-tion for his son, the law ordinarily will» require no more of him. If Edward, the son, were living with his father instead of the mother, no court would compel him to send the son to any boarding school or even a private day school. He would be compelled by statute (Comp. Stat. p. 4775 § 153), and those administering it, to educate the child, but the state provides free schools, where all its sons and daughters may be thus educated and the law ordinarily requires no more than this. Á father, unless his parental authority has been taken away by the courts, is the one to decide the extent of the education of his child, beyond what is provided by the school system of the state. Streitwolf v. Streitwolf, 58 N. J. Eq. 570. If the father were dead and the minor son had property, his education would be paid for out of his income under the direction of the court of chancery, on a basis of what was proper and customary for one in his station in life: but that is not this case.

A case somewhat in point is that of Streitwolf v. Streitwolf, supra. There, in a. suit brought by the wife for a limited divorce on the ground of extreme cruelty, alimony pendente lite was awarded her. She subsequently applied Tor additional alimony *158 pendente lile, to enable her to meet the expenses for tuition and books, at a law school, of her son, then in his twentieth year, who lived with her, and was chiefly supported by her. .No- order had been made giving the custody of the. son to either, parent. The application was granted, against the objection of .the' husband, who testified that he thought -his son' unfitted for the law and wished him to go into business. On" appeal to this court it was held that the order giving' additional aliinon3r pendiente lite to enable the wife, against the judgment of her husband, -to secure for the son a professional education, should, be reversed.-

Of course, in the present case, it appears that, the father and mother were divorced, and that the custody5 maintenance and education of the son had been committed-by the court-t.o the mother. ■ But where,, as here, it appears-that-the'father’s-annual net income was only $4,500, we’ think, that an, order requiring him, against his objection,-to pay to the. mother $520 annually for the support and maintenance of- such sixteen-year-pld son, and. $980 annually for his board'and tuition in-a boarding school, is excessive, in so far as, it represents expenses for-education in a boarding- school rather than in -a- public high school, in view of the fa'ct that the father believes, with- some showing of reason, that attendance at a public high school' is adequate and preferable for his son for'present purposes, and in.view of the further fact that the father lias a second wife and daughter to. support.

The decree will be reversed and the record remitted to the court of chancery for further proceedings, in accordance with the views herein' expressed.

For wffwmm.ce — None. ■ For reversal — Ttie Chibe-Justice, Swayze, Trenciiard, Parker, Ber&en, Minturn, Kalisoit, Black, White, HepPENHElMEB, WILLIAMS, GARDNER, ACKERSON, VAN BüSKIRK —14. -