ZIRK v. NOHR, 125 N.J.L. 610 (1941)

18 A.2d 10

WILLIAM ZIRK, AS TRUSTEE FOR RUTH NOHR, RESPONDENT, v. AUGUST A. NOHR, JR., APPELLANT.

Supreme Court of New Jersey.Argued January 22, 1941 —
Decided February 7, 1941.

A sealed contract to pay a sum certain for the support of a minor child may be enforced at law by the trustee therein named.

On appeal from the Second District Court of Jersey City.

Before Justices BODINE and PORTER.

For the appellant, William Blohm and John W. Ockford.

For the respondent, Armstrong Mullen (Arthur C. Mullen).

BODINE, J.

The plaintiff, as trustee for Ruth Nohr, a minor child, had judgment for the arrearages due under a written instrument under seal, whereby the defendant agreed to pay to the plaintiff $20 a week which his then wife agreed to accept for the maintenance and support of their child. The parties were subsequently divorced. The father is obliged to support his minor child. This duty may be enforced in equity. The divorce of the parents does not terminate the duty. Notwithstanding the agreement, if the amount fixed was inadequate, equity would make a suitable allowance Rennie v. Rennie, 85 N.J. Eq. 1.

There is no public policy against the enforcement of an agreement to pay a sum certain for the support of a minor child, as counsel suggests. The circumstance that the Court of Chancery could enforce a like duty does not relieve the father from the duty to perform his sealed contract. Emery v. Neighbour, 7 N.J.L. 142. It has been held that a contract to support a wife, if fair and just, will be enforced in equity but that such agreement is unenforceable at law because of the incapacity of the parties to contract as to that matter.

Page 611

Cohen v. Cohen, 121 N.J. Eq. 299. There was no lack of capacity here since the father’s agreement was to pay to a third party.

The judgment is affirmed.