The opinion of the court was delivered by: FOLLMER
This is a suit for unpaid installments for support and maintenance allegedly due plaintiff and her three minor children by defendant under and in accordance with a decree of the Court of Chancery in the State of New Jersey under date of February 24, 1944. The case was tried before this Court without a jury.
On the basis of the pleadings and the testimony, I make the following special.
1. The plaintiff is Helene A. Gonzales, a resident of the City and State of New York.
2. The defendant is John L. Gonzales, a resident of Bucks County, State of Pennsylvania.
3. On February 24, 1944, in Chancery of New Jersey 151/285 , the court having jurisdiction of the parties ordered and decreed, inter alia, as follows:
' * * * that the defendant, John L. Gonzales do pay to the complainant, Helene A. Gonzales, or to her solicitor, David T. Wilentz, the sum of Sixty Dollars ($ 60.00) per week, or fifty percent (50%) of his net income, whichever is the larger, upon Tuesday of each and every week commencing on the 22nd day of February, 1944, and continuing until the further order of this Court, as and for the support and maintenance of herself and the infant children of said marriage in her custody.
'And it is further ordered and decreed that the custody of Thomas A. Gonzales, 3rd, age 11, and Andrea Marie Gonzales, age 4 1/2 , and Linda Anne Gonzales, age 1 1/2 , infant children of said marriage, be, and the same is hereby awarded to the complainant until the further order of this Court, and that defendant may have the right of reasonable visitation until the Court shall otherwise order.
'And it is further ordered and decreed that the parties hereto be at liberty to apply to this Court for added or other relief or for a modification of the terms of this decree as the circumstances of the parties may require.'
4. The action in Chancery of New Jersey was never reduced to a final money judgment.
5. Shortly after the New Jersey proceedings of February 24, 1944, plaintiff, with the three minor children, took up her residence in the City of New York, and defendant took up his residence in Bucks County, Pennsylvania.
6. Defendant paid plaintiff in accordance with the terms of the New Jersey order an aggregate of $ 5,042.50, leaving a balance due under the terms of that order as of February 22, 1947, in the sum of $ 4,317.50.
8. On March 4, 1947, Helene A. Gonzales brought an action for desertion and non-support against John L. Gonzales on behalf of herself and her minor children in Bucks County, Pennsylvania.
9. In the Bucks County proceeding the following colloquy took place between the court, the plaintiff, Helene A. Gonzales, and Counsel for plaintiff and defendant, referring to the decree of the Chancery Court in New Jersey,
'Mr. Biester: * * * In so far as the order part of that decree is concerned, not the rest of it, and not anything affecting custody of the children or anything else that may be in that agreement, but only in so far as it affects the order there made, Mrs. Gonzales is willing to, let's say, waive her rights under it during the pendency of the order that is made here.
'Judge Keller: I think that is as far as she ought to go.
'Mr. Biester: I don't think we will go any further -- that while this order is in effect and being complied with that any rights she might have ...