Malkin v. Malkin, A--102

• Decision Date: 04 April 1951
• Docket Number: No. A--102,A--102
• Citation: 12 N.J.Super. 496,79 A.2d 863
• Parties: MALKIN v. MALKIN.
• Court: New Jersey Superior Court — Appellate Division

Page 496

12 N.J.Super. 496

79 A.2d 863

MALKIN v. MALKIN.

No. A--102.

Superior Court of New Jersey, Appellate Division.

Argued March 12, 1951.

Decided April 4, 1951.

Irving Siegler, Newark, argued the cause for plaintiff-appellant (Siegler & Siegler, Newark, attorneys).

Herbert J. Kenarik, Newark, argued the cause for defendant-respondent.

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

McGEEHAN, S.J.A.D.

The plaintiff was granted a decree Nisi on August 14, 1946, under which the plaintiff was awarded the custody of the two infant children of the marriage and the defendant was ordered to pay to the plaintiff the sum of $60 per week for the support and maintenance of the plaintiff and the two infant children, to pay the carrying charges on the home occupied by the plaintiff and the children, and to purchase the clothing for the children. On March 17, 1950, a consent order was entered which struck from the decree Nisi the order that the defendant pay the carrying charges on the home occupied by the plaintiff and the children, and added to the decree Nisi a further order requiring the defendant to furnish each child with a complete four-year college education, upon certain terms not pertinent to this appeal.

The plaintiff remarried on July 30, 1950. After July 24, 1950, the defendant made no further payments to the plaintiff for her support and maintenance or for the support and maintenance of the children. On September 26, 1950 the plaintiff gave notice of a motion for (1) an order adjudging the defendant in contempt for failure to comply with the terms of the decree Nisi, as modified by the order of March 17, 1950; and (2) an order to determine the amount of support and maintenance for the infant children in lieu of 'the present order.' On November 1, 1950 the order, presently under appeal, was entered. This order denied the plaintiff's application to hold the defendant in contempt and continued all provisions of the decree Nisi, as amended and modified by the order of March 17, 1950, except the provision requiring the defendant to pay to plaintiff $60 per week for the support and maintenance of the plaintiff and the two infant children, which provision was amended to read: 'Ordered the said defendant to pay to the plaintiff the sum of $25.00 per week at the beginning of each and every week from the 20th day of October, 1950 for the support and maintenance of the two infant children of the marriage.'

The plaintiff argues (1) that the award of $25 per week for the support and maintenance of the two children is grossly inadequate based on the facts presented below, and (2) that the trial court erred in allowing defendant to escape payment for the support and maintenance of his infant children for the period between July 24, 1950 and October 20, 1950.

The matter was heard below on the affidavit of the plaintiff and the answering affidavits of the defendant. The allegations in the affidavits as to the defendant's assets, earnings and scale of living were in conflict. Although the defendant offered to substantiate the allegations in his affidavits, the plaintiff sought no opportunity for examination thereon, but...