Ganther v. Ganther
| Decision Date | 17 October 1977 |
| Citation | 379 A.2d 473,153 N.J.Super. 226 |
| Parties | Elizabeth Ann GANTHER, Plaintiff-Respondent, v. Robert J. GANTHER, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
David J. Meeker, Westfield, for defendant-appellant (David J. Meeker, Westfield, attorney; John L. Conover, Westfield, on the brief).
Joan M. Donnelly, Jersey City, for plaintiff-respondent (Russo, Tumulty & Nester, Jersey City, attorneys; Joseph S. Nester, Jersey City, of counsel).
Before Judges CONFORD, MICHELS and PRESSLER.
The opinion of the court was delivered by
MICHELS, J. A. D.
Defendant husband appeals from an order of the Chancery Division which, in part, granted plaintiff wife's application for a modification of a property settlement agreement included in a judgment of divorce and for other relief pursuant to R. 1:10-5.
The judgment of divorce in this case, which was entered on April 13, 1972, included a property settlement agreement which provided for the sale of the marital residence and the division of the proceeds thereof after payment of existing liens as well as the repayment of an outstanding bank loan secured by stock owned by plaintiff. The net proceeds of the sale were to be distributed on the basis of 30% to plaintiff and 70% to defendant. The judgment also awarded plaintiff custody of Barbara Jean Ganther, one of the infant children born of the marriage, and ordered defendant to pay to plaintiff $50 a week for the child's support and maintenance as well as the support and maintenance of the other two infant children of the marriage. No useful purpose would be served by reviewing the entire factual and procedural history which followed the entry of judgment. It is sufficient to observe that when defendant failed to comply with the support provisions of the judgment, plaintiff eventually moved pursuant to R. 1:10-5 for an order in aid of litigant's rights to compel defendant, among other things, to pay the arrearages due for support and maintenance of the infant children. By way of an affidavit filed in support of the motion plaintiff also sought to modify a portion of the property settlement agreement included in the judgment of divorce by providing for an equal division of the net proceeds of the sale of the marital residence after repayment of the principal and interest on the previously referred to loan. Plaintiff claimed that the property settlement agreement should be modified because she had to pay the interest and carrying charges on the loan from the date of the divorce. She also claimed at the hearing on the motion that she agreed to the 30-70 division of the proceeds of the marital residence because she wanted the loan against the stock which she had inherited from her father paid off and assumed that the sooner the divorce was over the sooner she would get her mental health back.
At the conclusion of the hearing the trial judge found that defendant was in arrears in support and maintenance payments and entered judgment against him in the sum of $2,495. Since the judge found both parties equally responsible for delaying the sale of the marital residence, he ordered each party to pay one-half of the interest charges incurred on the bank loan from the date of the divorce until the loan is repaid. The judge further ordered that plaintiff be reimbursed one-half of those interest charges from the proceeds of the sale, and directed that the parties immediately take all necessary steps to sell the marital residence. The trial judge then amended the judgment by dividing the net proceeds of the sale equally between plaintiff and defendant. Finally, the judge found that defendant had "willfully, consciously and intentionally violated litigant's rights by failing to make the payments for Barbara Jean," and ordered defendant to deposit sufficient funds to guarantee the support and maintenance payments for two years with the Morris County Probation Department. Defendant appeals.
We find no merit in defendant's claim that the trial judge erred in awarding plaintiff one-half of the...
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