Sharpe v. Sharpe

• Decision Date: 08 February 1971
• Parties: Frances W. SHARPE, Plaintiff-Appellant, v. Louis H. SHARPE, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 468

57 N.J. 468

273 A.2d 572

Frances W. SHARPE, Plaintiff-Appellant, v. Louis H. SHARPE, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 23, 1970.

Decided Feb. 8, 1971.

Saul J. Zucker, Newark, for plaintiff-appellant (Zucker, Lowenstein, Gurny & Zucker, Newark, attorneys; Harold A. Price, Morristown, of counsel; Saul J. Zucker, Newark, on the brief).

Joel L. Bohrer, Newark, for defendant-respondent.

PER CURIAM.

The primary issue in this case is the same as that presented by Flaxman v. Flaxman, 57 N.J. 458, 273 A.2d 567 (1971) decided today. That issue is whether a woman's right to alimony from her former husband under a separation agreement incorporated into a divorce decree is revived by the annulment of the woman's second marriage on grounds which rendered it voidable. Judge Polow, sitting in the Chancery Division, held that the right was not revived. 109 N.J.Super. 410, 263 A.2d 490 (1970). On plaintiff's motion we certified the matter directly to this Court before argument in the Appellate Division and set it down to be argued with Flaxman v. Flaxman where the Chancery Division had reached a contrary result. 109 N.J.Super. 500, 501, 263 A.2d 816 (1970).

The pertinent facts are not in dispute. Plaintiff and defendant were married on May 1, 1954, and are the parents of five children. Plaintiff sued for divorce and on October 26, 1966, a judgment nisi awarding the plaintiff custody of the children was entered which incorporated an agreement between the parties requiring the defendant to pay $10,000 a year in monthly installments 'for alimony, support and maintenance for the wife and infant children * * * until * * * her remarriage.' The judgment became final on January 27, 1967.

On January 9, 1969, plaintiff married Alan Cavallaro. Less than two weeks later the defendant applied to the court for a reduction of the support payments by the elimination of plaintiff's alimony. His annual support obligation was reduced to $6,000 a year effective February 1, 1969. This amount covered support for the children only and plaintiff's alimony was discontinued.

On February 28, 1969, less than two months after her marriage to Cavallaro, plaintiff filed a complaint to annul that marriage on the grounds that he was impotent and that he fraudulently represented to plaintiff that he was able to consummate the marriage. The plaintiff withdrew the complaint on April 30, 1969. However, on June 27, 1969, plaintiff filed a new complaint seeking to enjoin Cavallaro from interfering with her relationship with her children. This complaint was amended on August 12, 1969 to include a demand for an annulment on the grounds of impotence and fraud. Cavallaro did not contest the proceedings and a judgment of annulment was entered on November 14, 1969, for the reasons set forth in the amended complaint. As a result of her annulment plaintiff sought an application to revive her right to alimony which had been discontinued after her remarriage.

In Flaxman v. Flaxman, Supra, we held that where a separation agreement incorporated in a divorce decree provides for termination of alimony upon a wife's remarriage, alimony would remain terminated even if the wife's second marriage was voidable and was later annulled. For reasons expressed there, we agree with the determination of Judge Polow. We add that the facts of this case demonstrate the degree of control a wife could have over her source of support if we were to reach a contrary...