Schluter v. Schluter

• Decision Date: 13 November 1951
• Docket Number: No. 162,162
• Citation: 86 A.2d 300,17 N.J.Super. 496
• Parties: SCHLUTER v. SCHLUTER. /594.
• Court: New Jersey Superior Court

Page 496

17 N.J.Super. 496

86 A.2d 300

SCHLUTER v. SCHLUTER.

No. 162/594.

Superior Court of New Jersey, Chancery Division.

Decided Nov. 13, 1951.

Dougal Herr, Elizabeth, and Crawford Jamieson, Trenton, attorneys for the plaintiff.

Walter D. Van Riper, Newark, and Ellis L. Pierson, Trenton, attorneys for the defendant.

TOMASULO, A.M.

Both plaintiff and defendant appeal from an order modifying a decree Nisi heretofore entered in this matter on August 31, 1948, in which the plaintiff, Charlotte M. Schluter, obtained a decree of divorce against the defendant for desertion.

The petition for divorce filed June 4, 1948 set forth that there were four children born of the marriage, to wit: Frederic Edward Schluter, 22 years; William Everett Schluter, 20 years; John Adolph Schluter, 19 years, and Peter Mueller Schluter, 15 years, and further set forth, that all of the said children were in the custody of the plaintiff and residing with her.

The decree included the following language: 'And it is further ordered, adjudged and decreed that defendant pay to petitioner in full satisfaction of all allowances and provisions for her support and maintenance and of defendant's obligation to furnish such support and maintenance a lump sum of $75,000. in instalments agreeable to the parties, final instalment to be paid on or before October 2, 1950, and regular monthly alimony payments of $250. per month, and the further sum of $750. per month toward the maintenance and support of the children.' This portion of the decree was included therein presumably because it was intended thereby to merge into the decree the terms and provisions of a preexistent agreement theretofore entered into between the parties. The referred to agreement was not in evidence nor was it before the court at the time of the entry of the decree Nisi on August 31, 1948, except that in the plaintiff's testimony before the court, oral reference was made to 'an agreement' in the following direct testimony of the plaintiff:

'Q. You and your husband's respective solicitors have come to a settlement agreed to settle incidental matters in connection with property and support and maintenance of the children, have you not? A. Yes, we have.

'Q. And under that agreement he is to give you seventhy-five thousand dollars ($75,000.00) lump settlement? A. Yes, he is.

'Q. Together with alimony of two hundred and fifty dollars ($250.00) a month? A. Yes.

'Q. And maintenance and support of the children at the rate of seven hundred and fifty dollars ($750.00) a month? A. That's right.'

Testimony regarding the financial position of the defendant was as follows:

'Q. What is his approximate worth, if you know? A. Well, it is over five hundred thousand dollars ($500,000.00), much over.

'Q. Will that provision that you have and he has agreed upon, in your judgment, be sufficient to enable you to carry on the home with the boys at approximately the same scale of living as heretofore? A. Possibly not quite the same scale of living, but it should be sufficient.

'Q. You have means of your own, have you? A. Yes, I have.

'Q. So you will be enabled to live comfortably with the boys? A. Yes.'

In May, 1950, the defendant served upon the plaintiff a notice of an application for an order modifying the terms of the decree previously entered with respect to the payment of $750 a month to the plaintiff for maintenance and support of the children of the plaintiff and the defendant. Upon the argument of this motion, it having appeared that no testimony had been taken in the divorce proceeding of a character sufficient to enable this court to intelligently pass upon the original status of the plaintiff and the defendant to enable the court to thereby determine whether at the time of the present application any change of circumstances had taken place sufficient to justify the application of the defendant the court thereupon ordered that the present application be determined not upon affidavits, but upon such oral testimony of both of the parties involved as each would see fit to adduce. In addition to this the court directed that it be furnished with a complete transcript of the testimony taken in the divorce proceeding so that the prior record would be available in connection with the pending application.

The hearing ordered by the court consumed approximately four full days of testimony, and an examination of the transcript will reveal that all pertinent matters relating to the status of both the plaintiff and the defendant were gone into in minute detail and at great length. The financial position of the defendant was inquired into through the aid of expert certified public accountants engaged by the defendant's attorneys for that purpose, which was provided for by a consent order entered in this cause for that purpose.

As a result of an analysis of the foregoing testimony, I have come to the conclusion that while the defendant has attempted to convince this court of a minimized income and a reduced net worth, I am satisfied that actually this is not so, and that his net worth and income is substantially the same today as it was at the time of the entry of the Nisi decree of divorce, and if anything, the defendant's financial position is better. Suffice it to say, the defendant has failed to satisfy me that he would be entitled to a modification of the order, solely upon an alleged change of circumstances, so far as he personally is concerned, in his income or his financial status generally, and were my decision to rest upon this alone, I would be constrained to determine the matter adversely to the defendant.

The impelling facts resulting in the order for modification here advised center themselves around a change of circumstances on the part of the plaintiff. Since the entry of the decree Nisi, Frederic Edward Schluter, one of the sons, who at the time of the entry of the decree was 22 years of age, without any income or independent means of his own, was completing his college education away from the home of the plaintiff and defendant, and truly dependent upon his parents, at the time of the present application is 25 years of age, married, employed, possessed of an income from a trust fund in the amount of approximately $7,500 a year and living with his wife outside of the State of New Jersey. Likewise, William Everett Schluter, another son, who at the time of the decree Nisi was 20 years of age and in a situation similar to that of his brother Frederic, now is 23 years of age, married, employed, and possessed of an income from a trust fund similar in character to the trust fund of his older brother. It is evident, therefore, that both of these children have become emancipated since the entry of the divorce decree and, consequently, the defendant is no longer chargeable with the obligation of supporting or maintaining them. Straver v. Straver, 59 A.2d 39, 26 N.J.Misc. 218, 219 (Ch.1948). The testimony also disclosed that the plaintiff has a separate...