Opinion
Argued December 12, 1949 —
Decided December 21, 1949.
On appeal from the Superior Court, Chancery Division.
Before Judges McGEEHAN, COLIE and EASTWOOD.
Mr. William A. Moore argued the cause for appellant.
Mr. John E. Toolan argued the cause for respondent.
This is the appeal of Arthur M. Seitz, Jr., from a judgment entered on June 6, 1949, awarding the custody of the three minor children of the parties hereto to the defendant therein, and granting a counsel fee of $1,000 with costs to the respondent. There is no appeal from the judgment awarding $20 per week as support and maintenance for the wife and the three children.
There is no dispute that the best interests of the infants is the guide for the decision of the question of custody. The matter was first heard in the Chancery Division and custody awarded to the respondent. Thereafter, the judgment was reversed and sent down to the court below for the taking of additional testimony. On remand, additional testimony was taken and the judgment again awarded custody to the respondent. Appellant argues that the findings of the court below were against the weight of the credible evidence. No useful purpose will be served by reviewing the facts in the record. A study of the record convinces us that the award of custody to the mother is correct.
Rule 3:54-7 establishes the right of the court below to award counsel fee in a matrimonial action. By Rule 3:82(b) a dispute over the custody of children is defined to be a matrimonial action. As to the amount of the fee, that was discretionary with the court below and we see nothing in the case which would justify us in holding that he abused his discretion in that regard.
The judgment under appeal is affirmed.