Lynn v. Lynn

• Decision Date: 25 October 1977
• Citation: 153 N.J.Super. 377,379 A.2d 1046
• Parties: Marilyn LYNN, Plaintiff, v. Robert LYNN, Defendant.
• Court: New Jersey Superior Court

Page 377

153 N.J.Super. 377

379 A.2d 1046

Marilyn LYNN, Plaintiff, v. Robert LYNN, Defendant.

Superior Court of New Jersey, Chancery Division.

Oct. 25, 1977.

Wharton, Stewart & Davis, Somerville, for plaintiff (Richard H. Thiele, Jr., Somerville, appearing).

Halpern, Schachter & Wohl, Somerville, for defendant (Michael S. Halpern, Somerville, appearing).

IMBRIANI, J. C. C.

This matrimonial case presents two issues. First, should an adulterous wife be awarded alimony? Second, may a father voluntarily reduce his income and thereby diminish his alimony and child support obligations?

The parties separated April 6, 1975. On December 12, 1975 the wife filed a complaint for separate maintenance seeking support for herself and three children, who are all in her custody and presently 12, 10 and 8 years of age. The husband filed a countersuit for divorce on the grounds of adultery. She then filed an amended complaint seeking divorce, alleging his desertion and adultery.

The husband, age 43, is a medical doctor who specialized in hematology oncology, i. e., the practice of treating those afflicted with cancer. His practice was very lucrative. In 1974 and 1975 his net income was $80,000, increasing to $113,000 in 1976. On July 1, 1977, while this divorce action was pending, he sold his practice to accept a full-time, three-year residency in psychiatry at St. Luke's Hospital in New York City. His salary and sole income for the next three years will be $17,000.

The husband testified that his practice, while very lucrative, was depressing and drained him both psychologically and emotionally. All of his patients suffered from terminal illnesses; most lived for less than five years. He described his emotional trauma in communicating with his patients and their loved ones. Many relatives wrote him notes of appreciation after the passing of his patient. While touching, they only increased his distress and depression. He viewed himself as being nothing more than a "money making machine" who merely extended the lives of his patients for a few years. He said he was denied the satisfaction enjoyed by others in his profession of being able to cure or at least stabilize the ills of their patients.

He needed and sought solace. He said his wife could not or would not understand his problems. She reveled in their wealth by spending lavishly. Yet, in spite of such substantial income, the parties had virtually no savings, other than the proceeds from the sale of the marital home and his medical practice.

The wife admitted to many acts of adultery, commencing within "a few months" after her husband left the marital residence; many occurred in the marital home which her husband was maintaining pursuant to pendente lite orders. Once her child entered her bedroom and saw her in bed with another man.

This court finds that the husband deserted his wife and that she committed adultery. A dual divorce is granted to both parties upon those grounds. The wife did not prove by a preponderance of the evidence that the husband also committed adultery.

The first question is whether alimony should be granted an adulterous wife?

There is no statute mandating denial of alimony to one who has committed a matrimonial wrong. But it may be considered.

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. (N.J.S.A. 2A:34-23)

Yet, the usual practice in New Jersey has been to allow alimony to a spouse in spite of her having committed a marital offense. Note Altbrandt v. Altbrandt, 129 N.J.Super. 235, 322 A.2d 839 (Ch.Div.1974). Consequently, the matrimonial bar was taken aback by Mahne v. Mahne, 147 N.J.Super. 326, 371 A.2d 314 (App.Div.1977), certif. den., July 12, 1977, when that court cited with approval 24 Am.Jur.2d, Divorce and Separation, § 622 at 744, that it is "an almost universal rule that permanent alimony will be denied to a wife who is guilty of adultery" and set aside a provision in a judgment of divorce granting alimony to an adulterous wife. It was not clear whether that holding applied to all cases where the wife committed any matrimonial offense, or only where the offense was adultery, or only where the offense was an "outrageous" adultery. Some clarification soon arrived when Nochenson v. Nochenson, 148 N.J.Super. 448, 449, 372 A.2d 1139, 1140 (App.Div.1977), held that "Mahne went no further than accepting fault as a 'consideration' or factor in determining the grant or denial of alimony."

Surprisingly, the cases are not clear as to when fault should be considered, and if so, to what extent. Cf. Greenberg v. Greenberg, 126 N.J.Super. 96, 312 A.2d 878 (App.Div.1973). If considered, should the court deny alimony in toto or merely reduce the amount of alimony? Contrawise, what results should flow if the party ordered to pay alimony committed the matrimonial offense? Should the court then grant alimony in excess of what is reasonable so as to punish or penalize the offending spouse? Turi v. Turi, 34 N.J.Super. 313, 112 A.2d 278 (App.Div.1955), says no. Or what result should flow if, as occurred here, both parties were at fault? We may well be on the threshold of a new era in dealing with alimony and on the verge of finally giving real meaning and substance to N.J.S.A. 2A:34-23.

At common law the granting of alimony was within judicial discretion. Although now permitted by statute, the sum to be awarded is still left to judicial discretion. N.J.S.A. 2A:34-23. So perhaps we should start at the beginning and ask what are the reasons for the granting of alimony? If outmoded or an anachronism, the court should develop new doctrines. It should never "adhere blindly to rules that have lost their reason for being." Fox v. Snow, 6 N.J. 12, 23, 76 A.2d 877, 883 (1950), dissent of Chief Justice Vanderbilt). It is an ancient maxim that once the reason for a rule ceases, the rule itself must cease.

What are the reasons for the granting of alimony? This court finds primarily two. One, to permit the wife, who contributed during marriage to the accumulation of the marital assets, to share therein. And second, to prevent her from becoming a public charge.

Patently, the first reason has essentially vanished with the enactment of N.J.S.A. 2A:34-23 mandating equitable distribution of all assets acquired during the marriage, albeit there will be instances where the contributions of a wife to the marriage cannot feasibly be subject to equitable distribution. For instance, a wife may contribute to the professional development of her husband by working while he attends college and acquires a potential for substantial earnings. In such a case the parties may divorce early and they may not have acquired significant assets as of the time of a divorce. Surely in those circumstances alimony should be utilized as a device to enable the wife to share equitably in what she has contributed to the marriage. Although this plaintiff-wife worked for a short period while her husband acquired his medical education, considering the long period between his graduation and the filing of her complaint, this case does not call such principles into play.

The concern of a wife becoming a public charge has waned with the passage of time. While women were formerly excluded from the employment market, then accepted on a limited basis, they are now widely accepted by industry. This is not to say that their opportunities are equal to those of men, but patently the job market for women has grown impressively.

This court is not suggesting the abolition of alimony. That is a matter within the jurisdiction of the Legislature. But where fault of the wife exists, and the statute permits it to be considered by the court, we may have reached the stage where alimony should be denied, unless necessary to prevent a wife from becoming a public charge or in those instances mentioned above to equitably distribute assets.

But such a departure from the past should not emanate from a trial court. However, we need not go that far to decide this case.

While glossed over in the past, we must say the obvious. Adultery is a crime. N.J.S.A. 2A:88-1. Other than an adulterous wife, this court knows of no other litigant who is permitted to profit from the commission of a crime.

The nexus of this case is whether there is a reasonable probability that this wife could become a public charge if denied alimony. Let us turn to the facts. She is a 39-year-old college graduate who taught for six years in public schools some 13 years ago. While she may need a refresher course, the testimony is that she has been employed during the past year as substitute teacher. She should be able to return to that vocation. Not only has this woman a potentiality to earn a fair salary, but she is endowed with some money of her own (a small trust fund) and will receive a fair sum as equitable distribution of the marital assets. It should be noted in passing that the court does not believe that she cannot or should not enter the employment market because she will be entrusted with the care of three minor children. Many women have overcome such a burden and so can this plaintiff. Thus, this court finds that there is very little probability of this woman becoming a public charge.

Mahne certainly stands for the proposition that alimony should be disallowed where the wife has committed an outrageous adultery. That is precisely what occurred here. The wife, while receiving pendente lite alimony and support of $30,000 a year, and living in the marital home which the husband was maintaining, committed adultery within that marital home. On at...