Martindell v. Martindell

• Decision Date: 23 April 1956
• Docket Number: No. A--105,A--105
• Citation: 21 N.J. 341,122 A.2d 352
• Parties: Edna Conboy MARTINDELL, Plaintiff-Respondent, v. Jackson MARTINDELL, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 341

21 N.J. 341

122 A.2d 352

Edna Conboy MARTINDELL, Plaintiff-Respondent, v. Jackson MARTINDELL, Defendant-Appellant.

No. A--105.

Supreme Court of New Jersey.

Argued March 12, 1956.

Decided April 23, 1956.

Edward R. McGlynn, Newark, for appellant (Paul J. O'Neill, Newark, attorney; Roger H. McGlynn, Newark, on the brief).

John J. McCloskey, Newark, for respondent (Levy, Fenster & McCloskey, Newark, attorneys).

The opinion of the court was delivered by

JACOBS, J.

The defendant appealed to the Appellate Division from an order of the Chancery Division which granted a retroactive increase of alimony to the plaintiff and awarded a counsel fee to her attorneys. The defendant's notice of appeal was filed eight days beyond the period prescribed in the rules and the Appellate Division denied a motion for extension under R.R. 1:27B. We granted certification on the defendant's application.

In 1921 the plaintiff married the defendant and in 1933 she divorced him. Custody of their three children (Edna M., Robert E. and David J.) was awarded to her and pursuant to an agreement she was allowed $600 per month for alimony plus $100 per month under an annuity policy which had been purchased for her. In 1945 a consent order reducing her alimony was entered in the Court of Chancery. It set forth that Edna had become 21 years of age in 1943 and had married and that Robert had 'become emancipated.' It provided that the plaintiff should receive (in addition to the $100 per month under the annuity policy) $465 per month to be allocated as follows: $300 per month as alimony and $165 per month for the support of David until he reached his eighteenth birthday or until further order of the court. In 1947 another consent order reducing alimony was entered in the Court of Chancery. It set forth that David had reached his eighteenth birthday and that the defendant had undertaken his 'care, support, maintenance and tuition.' It provided that the plaintiff should receive (in addition to the $100 per month under the annuity policy) $300 per month 'for alimony, support and maintenance of the said Edna Conboy Martindell.'

In 1951 the plaintiff filed notice that she would apply to the Chancery Division for an increase in alimony. Her supporting affidavit set forth that her net income was $4,126; that the cost of living had risen and she found it impossible to set aside savings to meet any emergencies or provide for her sustenance in the event the defendant predeceased her; that she lived in an East Orange apartment which was inadequate for her needs and for the needs of her children and grandchildren when they visited her; and that the defendant, whose reputed wealth was 'in excess of two million dollars,' traveled extensively and lived lavishly with his third wife at Princeton where he maintained 'a household requiring two servants and nurse as well as other employees.' In his answering affidavit the defendant denied that he lived lavishly and asserted that his extensive travels were in connection with his business. He stated that he considered the plaintiff's apartment accommodations to be 'fully adequate for her needs'; that it was inconceivable to him that the plaintiff had been unable to set aside a substantial sum as savings 'if she lived within her means'; and that he was now willing 'without prejudice' to increase the sum which he was paying to the plaintiff 'to an amount sufficient to meet the 18% Cost of living increase.' After the affidavits were filed formal hearings were held in the Chancery Division on various dates between March 1952 and September 1954. A settlement conference was held on October 19, 1953 between the court and counsel. The defendant's counsel asserts his understanding that if a settlement was consummated it was to be effective as of October 19, 1953. The plaintiff's counsel asserts his understanding that whatever order the court entered was to be retroactive to October 19, 1953. In any event, the settlement negotiations failed and the hearings proceeded.

During the hearings the plaintiff testified that while she was married to the defendant her family lived very comfortably. In 1932 she and her children, accompanied by a governess, had been to the Riviera, Paris, Nice and Cannes. When they returned to the United States they lived in a large house in South Orange with several servants and she was given $800 a month 'to run the house' exclusive of department store charges and other expenditures. She testified that, in contrast, she now lives in an apartment without the services of any maid, laundress or other domestic help. She has no automobile because she can 'no longer afford to pay $18 a month garage and the upkeep.' Her apartment is furnished 'very poorly' and she has had no new furniture 'for over twenty years.' She has no source of income except from the defendant and she pays income taxes on the sums received from him. She has been unable to accumulate any savings and has been unable to accommodate properly her children and grandchildren during their visits with her. In explanation of her consents to the reduction orders of 1945 and 1947 she testified as follows:

'The fact is, each time the question of my children's education was to come up to go to college, he would say, 'If you want the children properly educated, you will just have to take what I feel you are deserving, and I will send these children to college.' Knowing my sons and daughter wanted a college education, and I wanted it for them so badly, I would consent to take a smaller income, so that it would help my children to go through college. Consequently, I stayed in the background until my sons graduated from college * * *.'

Prior to the entry of the 1933 divorce decree and the 1945 and 1947 reduction orders, no judicial inquiry was made as to the defendant's financial condition. However, in the present proceeding, evidence on that issue was taken and, although the defendant's testimony was neither complete nor satisfactory, there is enough in the record to establish that he is wealthy, has a substantial current income, and a high potential of earnings. It also seems fairly inferable that his financial resources and annual income increased significantly during the period after the last reduction order was entered in 1947. He is a financial consultant and economic adviser and is the dominating influence in the American Institute of Management which he described as 'a nonprofit educational foundation to advance professional management by means of establishing in America the science of management audit in the same way the science in financing audits was established about fifty years ago.' He is a large stockholder of Normandy Farms, a Delaware corporation, and exercises actual control of its operations. He testified that he looked upon Normandy Farms as a 'financial convenience' and his accountant, Miss Lord, testified with respect to his annual advances thereto and withdrawals therefrom; the largest were in 1953 when he advanced $210,000 and withdrew $50,000. Miss Lord testified further that as of August 31, 1954 Normandy Farms had 'net assets of $485,316, liabilities $259,760, net capital $225,556'; of the liabilities, $200,000 represented indebtedness to the defendant. In 1947 the net assets of Normandy Farms approximated $118,000.

There is ample evidence in the record to establish the defendant's very substantial earning capacity. Miss Lord testified that in 1952 he received $47,138.47 from various public utilities for services rendered as a consultant; in 1953 such fees aggregated $81,507; and through August 1954 they aggregated $17,825. The heavy expenses which he reported in connection therewith were paid to the American Institute of Management which also received many outright contributions from him. His 1952 net income was stated to be approximately $27,000 and his contribution to the Institute during that year was reported at $10,000. While testifying in October 1953 the defendant suggested that his health would no longer permit him to continue his extensive activities but he introduced no supporting medical evidence and Miss Lord's testimony indicated that his consulting work thereafter was still substantial. In any event we consider it unnecessary to pursue the matter or to present any further details as to the defendant's wealth and income. His brief on appeal does not question the Chancery Division's findings with respect to his favorable financial status nor does it contain anything to dispute the pertinent infereces which we have drawn. On the contrary, its rests upon the position that the evidence relating to the changes in the plaintiff's circumstances since the last reduction order of 1947 did not warrant the increase granted to her. The Chancery Division, by order dated May 23, 1955, increased the plaintiff's alimony from $300 to $550 per month (in addition to the $100 per month under the annuity policy). The increase was made retroactive to October 19, 1953 and the defendant was directed to pay a counsel fee to the plaintiff's attorneys in the sum of $4,500. On appeal, the defendant contends that the increase was excessive although he has renewed his consent to an 18% Increase to meet the rise in the cost of living. He also contends that the increase should not be retroactive and that the counsel fee should be reduced. Before we deal with the merits of these contentions we shall consider the plaintiff's point that the Appellate Division did not err in refusing to grant the application for extension and that the defendant's appeal should therefore be dismissed as having been taken out of time.

Under our practice rules, as originally adopted, the time for taking an appeal could not be extended under any circumstances. See In the Matter of Estate of Horton, 1 N.J. 571, 65 A.2d 60 (1949), certiorari denied Gay v. Fidelity Union Trust Co., 337 U.S. 945, 69 S.Ct. 1502, 93 L.Ed. 1748 (1949); In re...