Robins v. Robins

• Decision Date: 19 May 1930
• Docket Number: No. 116.,116.
• Citation: 150 A. 340
• Parties: ROBINS v. ROBINS.
• Court: New Jersey Supreme Court

150 A. 340

ROBINS

v. ROBINS.

No. 116.

Court of Errors and Appeals of New Jersey.

May 19, 1930.

Syllabus by the Court.

In determining the matter of alimony to be awarded, the court may take into consideration, not only the husband's property and income, but also his capacity to earn money from personal attention to business.

Appeal from Court of Chancery.

Suit by Dora Robins against David Robins for divorce. From a final decree fixing alimony and counsel fees, defendant appeals.

Affirmed.

See, also, 142 A. 168.

Grosman & Grosman, of Newark (Robert D. Grosman, of Newark, of counsel), for appellant.

Gross & Gross, of Jersey City (Benjamin Gross, of Jersey City, of counsel), for respondent.

McGLENNON, J.

The defendant, David Robins, a physician, has appealed from a final decree of the Court of Chancery, fixing alimony and counsel fees, and directing him to pay complainant, his wife, the amount of a judgment recovered by her against him, in the Supreme Court of the state of New York. The appeal is from so much of the decree as directed the defendant to pay to the complainant, or to her solicitors, the weekly sum of $30 per week, as well as the costs of the suit, and in addition thereto the sum of $500 as a counsel fee for the counsel of said complainant.

The petition of appeal alleges the decree to be erroneous, in that it appears, by the testimony taken before a special master of the Court of Chancery, that defendant's total income amounts to approximately $40 per week, and that the allowance so made for alimony and counsel fees is out of all proportion to the defendant's ability to pay. It is further specified that the weekly allowance erroneously includes an award, for the support and maintenance of the daughter of the parties hereto, who is twenty-two years old.

This latter contention is not sustained by the fact. While it is true that the master recommended an allowance of $40 per week for both the wife and daughter, a further examination shows that this amount was reduced to $30 per week. The decree, which is appealed from, merely directs payment of $30 per week to the complainant wife or to her solicitors, and does not order or direct the use of any portion of that specified sum for the support of the daughter. It does not constitute, therefore, an award in her favor, and the question here for consideration is whether the allowance of $30 per week to complainant should be sustained. This requires an examination of the testimony.

These parties have been married over twenty years, and have two children, a daughter twenty-two years of age, and a son twenty years old. For several years past, they have been engaged in litigation, in the state of New York, and a decree was made in 1929, by the Supreme Court of that state, awardlag $55 per week, for the support of the wife and her two then infant children. Defendant fell into arrears in such payments, and later went to Mexico, where he procured a decree of divorce. He then returned to New Jersey, where he subsequently married the woman with whom he is now living, at 94 Hawthorne avenue, Newark.

The Court of Chancery held the Mexican divorce decree invalid because of fraud, and made the present award. Payments under this order are now in arrears. In June, 1928, Vice Chancellor Bentley awarded the sum of $50 per week for complainant and daughter, and these payments were not kept up. The court below, notwithstanding these defaults, has again reviewed the matter, resulting in the present decree.

Defendan...