Greenberg v. Greenberg

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: CRAHAY
• Citation: Greenberg v. Greenberg, 312 A.2d 878, 126 N.J.Super. 96 (N.J. Super. App. Div. 1973)
• Decision Date: 11 December 1973
• Parties: Myrna GREENBERG, Plaintiff-Respondent, v. Robert GREENBERG, Defendant-Appellant.

Page 96

126 N.J.Super. 96

312 A.2d 878

Myrna GREENBERG, Plaintiff-Respondent, v. Robert GREENBERG, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued Oct. 15, 1973.

Decided Dec. 11, 1973.

Michael D. Mark, Newark, for defendant-appellant (Skoloff & Wolfe, Newark, attorneys; Michael D. Mark, Newark, on the brief).

Martin Verp, Paterson, for plaintiff-respondent (Grabow, Verp, Krulewitz & Finamore, Paterson, attorneys; Martin Verp, Paterson, on the brief).

Before Judge LEONARD, ALLCORN and CRAHAY.

The opinion of the court was delivered by

CRAHAY, J.A.D.

Plaintiff Myrna Greenberg was granted a judgment of divorce grounded in defendant's extreme cruelty. She was awarded alimony at the rate of $100 a week and was granted a measure of 'equitable distribution' of the parties' real and personal property. Defendant appeals from the judgment challenging only the Quantum of the weekly alimony and the equitable distribution.

N.J.S.A. 2A:34--23, as amended in 1971, includes statutory mandates anent alimony, maintenance and equitable distribution. In part is provides--pertinent to the issues before us:

* * * In all actions brought for divorce, divorce from bed and board, or nullity The court may award alimony to either party, And in so doing shall consider the actual need and ability to pay of the parties and the duration of the marriage. In all actions for divorce other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just. * * *

In all actions where a judgment of divorce or divorce from bed and board is entered The court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage.' (Emphasis added)

Our review of the record satisfies us that the trial court misconstrued--insofar as alimony was concerned--the operative provisions of N.J.S.A. 2A:34--23. Furthermore, its findings on 'equitable distribution' do not have sufficient record support to permit them to stand. A remand is required.

On the issue of alimony the trial court, in a written opinion, concluded The testimony further discloses that while plaintiff was undergoing serious operative hospitalization during which she became medically addicted, defendant to her knowledge because of his boastings successfully sought relief of concupiscence in adultery.

N.J.S. 2A:34--23 provides further that this Court may also consider the proofs made in establishing the ground on which divorce sought in determining an amount of alimony that is fit, just, and reasonable. The indignity of defendant's conduct to the knowledge of his wife in her condition was so inhuman as to call on this Court to increase the projected amount of alimony under the language of the statute.

I increase the award of $75 per week to $90 per week in this regard. * * *

In a letter opinion filed contemporaneously with the formal opinion, similar views were stated:

During her illness and hospitalization there is no question but that defendant committee adultery to alleviate his physical needs although I find that this was not with the consent and blessing of his wife.

It seems to me that I must consider these factors in the award of alimony. See N.J.S. 2A:34--23 (--the Court may consider also the proofs made in establishing such ground in determining an amount of alimony--that is fit, reasonable and just.)

I will allow $75 per week, plus $10 per week for medical and hospitalization, plus an increase of $15 per week on my consideration of the proofs (N.J.S. 2A:34--23, supra.).

It is clear from the above-noted impressions that the $15 a week, added to that which the trial court found necessary to maintain plaintiff and attend to her necessary medical care, had punitive overtones grounded in the husband's misconduct.

We are satisfied that the statutory permission that 'the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just,' does not bespeak legislative intendment that marital misconduct may generate an award for alimony in excess of that which might be supported by long-established and traditional bases for such grants. Punishment of marital wrongdoing was not intended, nor could it be. Cf. Blaine v. Blaine, 96 N.J.Super. 460, 462, 233 A.2d 212 (Ch.Div.1967) . Rather, the Legislature merely meant that trial courts might consider the proofs to support a matrimonial cause of action when it turned to the issue of alimony and support assessment. Examples thereof would include the length of marriage, the mental and physical health of the aggrieved spouse, the mode of living which the parties enjoyed, and the like.

The long-standing tests for the amount of equitable support and maintenance have not in our view been altered in any wise by the statutory amendment. They continue to encompass: (1) the actual needs of the wife; (2) the husband's actual means and his ability to pay support; (3) the physical condition of the parties; (4) their social position; (5) the separate property and income of the wife, and (6) any other factors which bear upon the question of fair and reasonable support.

That the Legislature intended that the basic tests for reasonable alimony be continued is evidenced by the words 'fit, reasonable and just,' as...