Chalmers v. Chalmers

• Court: New Jersey Supreme Court
• Writing for the Court: SULLIVAN
• Citation: Chalmers v. Chalmers, 65 N.J. 186, 320 A.2d 478 (N.J. 1974)
• Decision Date: 05 June 1974
• Parties: Dorothy Mae Beth CHALMERS, Plaintiff-Appellant, v. George M. CHALMERS, Defendant-Respondent and Cross-Appellant.

Page 186

65 N.J. 186

320 A.2d 478

Dorothy Mae Beth CHALMERS, Plaintiff-Appellant, v. George M. CHALMERS, Defendant-Respondent and Cross-Appellant.

Supreme Court of New Jersey.

Argued Jan. 7, 1974.

Decided June 5, 1974.

Chester K. Ligham, East Orange, for plaintiff-appellant (Bell, Adubato & Ligham, East Orange, attorneys).

Francis F. Welsh, Montclair, for defendant-respondent and cross-appellant (DeStefano & Welsh, Montclair, attorneys).

The opinion of the Court was delivered by

SULLIVAN, J.

This is an appeal and cross-appeal in a divorce case. We granted certification while the appeal was pending unheard in the Appellate Division, primarly to consider defendant-cross-appellant's challenge to the constitutionality of the equitable distribution of property provisions of the amended Divorce Act, L.1971, c. 212, N.J.S.A. 2A:34--1 et seq.

In July 1970 plaintiff, Dorothy Mae Beth Chalmers, filed a suit against her husband George M. Chalmers for a divorce on the ground of desertion. The husband answered and counterclaimed on April 29, 1971 charging adultery and seeking a divorce on that ground. The matter was awaiting trial when the amended Divorce Act, Supra, became effective on September 13, 1971. Plaintiff then amended her complaint to seek a 'no fault' divorce under the new statute based on 18 months separation of the parties with no reasonable prospect of reconciliation. See N.J.S.A. 2A:34--2(d).

At the trial of the matter on November 15, 1971, plaintiff, after testifying to a separation of the parties for the statutory period with no reasonable prospect of reconciliation, admitted that while married to defendant she had had an adulterous relationship with a third party. She testified that when she told defendant that she was pregnant by another man, defendant moved out of the house. Her attorney stated to the court that plaintiff was not looking for alimony, but did want support for the one child of the marriage and 'a division of assets.'

The trial court, in an opinion reported at 117 N.J.Super. 474, 285 A.2d 77 (1971), found that plaintiff had proved a case in separation, but that the separation was the result of plaintiff's admittedly adulterous conduct. Consequently, the court dismissed plaintiff's amended complaint for divorce and awarded defendant a divorce on his counterclaim. In its opinion the court noted that 'no alimony has been sought; none is awarded.' 117 N.J.Super. at 479, 285 A.2d at 79. The court awarded custody of the child (age eight) to plaintiff and ordered defendant to pay $40 per week for the child's support, to provide Blue Cross and Blue Shield coverage and be responsible for major medical and dental care.

The court also ordered that plaintiff be awarded 20% Of defendant's assets, but excluded from the order for distribution assets acquired by defendant after April 30, 1966, the date of plaintiff's adulterous conduct. Counsel for plaintiff was awarded a fee of $2500 payable by defendant.

Plaintiff challenges the validity of the judgment of divorce entered on defendant's counterclaim. She has pleaded condonation as a defense to the charge of adultery. At trial both she and her husband testified that they had had sexual relations with each other on a single occasion in 1968 following the adultery. The trial court in its opinion made no reference to the alleged condonation. ¹

This matter was tried in November 1971 after the effective date of the amended Divorce Act which 'hereby' abolished the defense of condonation. N.J.S.A. 2A:34--7. The fact that the act of alleged condonation antedated the new statute did not give plaintiff a vested right in such defense. Divorce exists by virtue of statute. The Legislature has full power to modify or change the requirements for divorce, and create or abolish defenses thereto. The law in effect at the time the action was tried controls. To the extent that Huntley v. Huntley, 121 N.J.Super. 328, 297 A.2d 13 (Ch.Div.1972) is to the contrary of our holding herein, it is overruled.

Plaintiff argues that even if defendant was entitled to a divorce on his counterclaim, she was entitled to a 'no fault' divorce on her complaint since she proved a separation for 18 consecutive months with no reasonable prospect of reconciliation.

N.J.S.A. 2A:34--7 provides that where both parties make out grounds for a divorce, 'a decree may be granted to each.' Here the trial court found that while plaintiff had proved a case of separation under the new statute, the separation was the result of plaintiff's admission of prior adulterous conduct. For this reason the trial court declined to exercise its statutory power to grant a divorce to each party.

We conclude that the statute vests the trial court with some discretion as to whether it should grant a decree to each where both parties make out grounds for a divorce. While adultery is not a legal defense to a suit for 'no fault' divorce, in the facts and circumstances here presented, the grant of a divorce to the husband and the dismissal of plaintiff's amended complaint has not been shown to be improper. ^1A

Plaintiff next claims that she is in need of support for herself and should have been awarded alimony. She also complains that the $40 weekly support ordered for the child of the marriage is insufficient.

As noted above, at the hearing plaintiff's attorney stated that plaintiff was not seeking support for herself, but did want support for the child and a division of the marital assets. In its opinion the trial court noted that 'no alimony has been sought; none is awarded.' The record is clear that the trial court made no ruling as to alimony.

It may be that there was some misunderstanding at trial and that counsel's statement to the court was based on the assumption that there would be an equal division of the marital assets. If so, plaintiff would have the right to apply to the trial court for appropriate relief. Alimony is not a justiciable issue on the present record.

The provisions for the support of the eight year old child of the marriage have not been shown to be inadequate. Moreover, an order for support only operates In praesenti and is always subject to review on a showing of changed circumstances. Lindquist v. Lindquist, 130 N.J.Eq. 611, 613, 22 A.2d 289 (E. & A. 1942).

Plaintiff also charges that the trial court erred in allowing her only 20% Of her husband's assets acquired during the marriage and in excluding from such computation any property acquired by defendant after April 30, 1966, the date of plaintiff's adulterous conduct. Plaintiff argues that whereas the statutory provision for alimony permits the court to consider the fault of a party in determining the amount to be awarded, the provision for equitable distribution of the marital assets does not, and fault should therefore play no part in making equitable distribution.

In Painter v. Painter, 65 N.J. 196, 320 A.2d 484, also decided by us this day, we have held that the span of time embraced by the equitable distribution of property provisions of the amended statute, N.J.S.A. 2A:34--23, extends from the marriage of the parties to the date the complaint for divorce is filed. In finding this to be the legislative intent we rejected as unworkable the concept that no property should be included that was acquired after it could be shown that there was an irretrievable breakdown of the marriage or after a cause of action for divorce had arisen.

For the reasons expressed in Painter, we conclude that in the instant case the trial court erred in excluding from its order for equitable distribution property acquired by defendant after the date of plaintiff's admitted adultery. ²

In awarding plaintiff 20% Of the assets acquired by defendant prior to the date of the adultery, the trial court stated that the equitable distribution provisions of the statute were permissive and that it was taking into account the adultery of the plaintiff.

In Painter we suggested some of the criteria which may properly be taken into account in determining in a given case how the distribution may most fairly be made. Fault on the part of a spouse is not one of the criteria suggested. True, we recognized that the factors mentioned were intended to be...