Mahne v. Mahne

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PER CURIAM
• Citation: Mahne v. Mahne, 371 A.2d 314, 147 N.J.Super. 326 (N.J. Super. App. Div. 1977)
• Decision Date: 28 January 1977
• Parties: Joseph L. MAHNE, Plaintiff-Appellant, v. Grange R. MAHNE, Defendant-Respondent.

Page 326

147 N.J.Super. 326

371 A.2d 314

Joseph L. MAHNE, Plaintiff-Appellant, v. Grange R. MAHNE, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Dec. 21, 1976.

Decided Jan. 28, 1977.

As Amended March 31, 1977.

William A. Bromley, Hackensack, for appellant (Rose, Poley, Bromley & Landers, Hackensack, attorneys).

Gerald W. Kolba, Union, for respondent.

Before Judges LYNCH, MILMED and ANTELL.

PER CURIAM.

The trial judge granted a judgment of divorce to plaintiff on the ground of defendant wife's adultery, and awarded custody of the children to defendant, with liberal visitation rights to plaintiff. Provisions were made for alimony, child support, equitable distribution and attorney's fees. Plaintiff appeals from this judgment, contending: (1) the award of alimony in the amount of $300 a month was excessive; (2) the trial judge erred in compelling plaintiff to provide Blue Cross-Blue Shield coverage for the two children; (3) he erred in his distribution of the assets by awarding defendant the sum of $3,050 as alleged arrearages; (4) he erred in ordering the sum of $10,000 to be held in trust on behalf of the children, and (5) he erred in awarding a fee to defendant's attorney. We consider that there is no merit in any contention of plaintiff except with relation to (1) alimony, and (3) the item of $3,050 concerning alleged arrearages. R. 2:11--3(e)(1)(E).

Defendant had committed adultery with one whom plaintiff considered his 'best friend.' Originally, defendant filed an answer denying the adultery but it was later withdrawn. Thus, plaintiff's explicit proofs of the adultery were not contested.

'It is an almost universal rule that permanent alimony will be denied to a wife who is guilty of adultery.' 24 Am.Jur.2d, Divorce and Separation, § 622 at 744; Annotation, 'Allowance of permanent alimony to wife against whom divorce is granted,' 34 A.L.R.2d 313 (1954). Indeed, our Supreme Court has said that a court is 'without jurisdiction to award maintenance to a wife who has been adjudged guilty of a marital offense by a court of competent jurisdiction. Maintenance is based upon the duty of support arising out of a subsisting marriage. O'Loughlin v. O'Loughlin, 12 N.J. 222, 231, 96 A.2d 410 (1953).' Nappe v. Nappe, 20 N.J. 337, 348, 120 A.2d 31, 37 (1956).

However, defendant contends that, since the Divorce Act of 1971, N.J.S.A. 2A:34--23, fault has been excluded as a consideration with respect to alimony, citing Greenberg v. Greenberg, 126 N.J.Super. 96, 312 A.2d 878 (App.Div.1973), and Altbrandt v. Altbrandt, 129 N.J.Super. 235, 322 A.2d 839 (Ch.Div.1974).

It is true that in Greenberg the court held that a husband who had committed a matrimonial offense cannot be punished by being compelled to pay alimony in excess of that which might be supported by long-established and traditional bases for such grants, I.e., such amount that is 'fit, reasonable and just.' 126 N.J.Super. at 99, 312 A.2d 878. But that exclusion of 'fault' on the part of the husband who is to pay alimony does not, in any sense, affect consideration of fault on the part of the wife on the question of alimony.

In Altbrandt v. Altbrandt, supra, there was no issue as to alimony, so that the statement with respect to that subject was dictum. In any event, the support given for the statement was Greenberg v. Greenberg, supra, which we have already distinguished.

It is true that, with respect to equitable distribution, fault is irrelevant. Chalmers v. Chalmers, 65 N.J. 186, 193, 320 A.2d 478 (1974). However, in the Final Report of the Divorce Law Study Commission preparatory to adoption of the Divorce Act of 1971 it was said (at 7) that 'fault, where so...