Tucker v. Tucker

• Court: New Jersey Superior Court
• Writing for the Court: CONSODINE
• Citation: Tucker v. Tucker, 121 N.J.Super. 539, 298 A.2d 91 (N.J. Super. 1972)
• Decision Date: 11 December 1972
• Parties: Robert A. TUCKER, Plaintiff, v. Elaine B. TUCKER, Defendant.

Page 539

121 N.J.Super. 539

298 A.2d 91

Robert A. TUCKER, Plaintiff, v. Elaine B. TUCKER, Defendant.

Superior Court of New Jersey Chancery Division.

Dec. 11, 1972.

Albert G. Besser, Newark, for plaintiff (Hannoch, Weisman, Stern & Besser, Newark, attorneys).

Everett M. Scherer, Newark, for defendant (Riker, Danzig, Scherer & Brown, Newark, attorneys).

CONSODINE, J.S.C.

The parties were married in mid-1962. Plaintiff abandoned defendant and their two children nearly seven years later. Defendant sued plaintiff for statutory support and maintenance 11 months thereafter, seeking a total in excess of $66,000 per year. Judgment, after trial, was entered in her favor in June 1971. It awarded $18,250 tax free for her support and that of the children, plus carrying charges on the marital residence and miscellaneous other expenses. The judgment of $18,250 was subsequently increased by the Appellate Division to $21,050.

Plaintiff, in this action, sued his wife for divorce on the separation ground, N.J.S.A. 2A:34--2(d). Defendant counterclaimed on the desertion ground, N.J.S.A. 2A:34--2(b), and sought alimony, support and equitable division of the property acquired by plaintiff during the marriage, N.J.S.A. 2A:34--23.

Plaintiff is a corporate executive with sizeable assets yielding income separate from his earnings. His total gross income for the years 1962 through 1969 was $1,015,882. Of this total $326,056 was earned income. The balance came from gifts, from original or converted assets owned by him prior to the marriage, or from trust payments under the provisions of a trust set up by his deceased father. Additionally, he also owns non-income yielding assets.

During the period that the parties lived together their total living cost (capital expenditure and day-by-day expense) exceeded plaintiff's earned income. His investments in that time were reinvestment of funds from property owned prior to marriage.

Plaintiff had been previously married. His former wife has remarried. Support of their children (plus other expenses incurred for them) is approximately $20,000 per year.

The proofs raise questions involving the amendatory legislation to the divorce, alimony and maintenance law of our State, L.1971, c. 212, as amended by L.1971, c. 217, effective September 13, 1971, N.J.S.A. 2A:34--1, §§ 3, 7, 8, 20 and 23.

Both parties argue construction of the statutory language in N.J.S.A. 2A:34--23, supra, that the court may award an equitable distribution of property 'acquired by them or either of them During the marriage' (emphasis added).

Plaintiff argues that the marriage ceased on the date of abandonment and that any division of his assets should be as of that date. Defendant contends that the date of the entry of judgment in the separate maintenance action should be the cut-off date for division. The language of the statute would seem to equate the date of division of marital assets with the date of divorce since then the marriage is formally and finally ended.

A search for the legislative history of the property distribution clause of N.J.S.A. 2A:34--23 is unrewarding. The Divorce Law Study Commission which was the original source of Assembly Bill 1100 (1971 Regular Session) did not make any recommendations with respect to the distribution of property in the original draft of the legislation. Although the property question was alluded to in the public hearings before the Commission, the final report of the Commission specifically left the problem to further study by successor commissions. See Report of Divorce Law Study Commission at 97. The bill itself, which was introduced in the Assembly on May 14, 1970 and ultimately passed by that House with minor amendments on February 1, 1971, contained no mention of division of property acquired by the parties during marriage.

The language which ultimately became the last paragraph of N.J.S.A. 2A:34--23 was added by the Senate Judiciary Committee prior to passage of the bill by that body on March 25, 1971. (See second official copy reprint of Assembly Bill 1100, 1971 Regular Session). The Assembly, in concurring in the Senate amendments, made no change in the language of that section, nor were there any suggested amendments of that section by the Governor in his conditional veto message. The bill was reenacted in accordance with the Governor's recommendations by the Legislature, and was approved on June 14, 1971 as chapter 212 of the Laws of 1971.

Research of the legislation of other states leads to the conclusion that the pertinent portions of N.J.S.A. 2A:34--23 here involved were not grounded in any laws enacted in other jurisdictions but was rather the product of original draftsmanship by the Senate Judiciary Committee. Since that Committee kept no minutes and issued no report we have no guidance from it as to the construction of the language of this section.

That the language of the statute--'acquired * * * during the marriage'--is ambiguous seems apparent, because of the contrary opinions of the parties in this litigation, a literal reading of the words and the doubt of the court, each of the four interpretations requiring a different conclusion.

The amendatory legislation set a three-month waiting period before a complaint could be filed in extreme cruelty. N.J.S.A. 2A:34--2(c). A waiting period in the instant case would not be inappropriate to the legislative intent. Plaintiff might well have returned to defendant after the abandonment. He did not file suit in statutory separate maintenance seeking a judgment setting support and maintenance for defendant and the children. Defendant apparently hoped in vain for a return of her errant spouse, but finally 11 months thereafter, hope failing, filed a complaint for separate maintenance and support.

It seems that at this stage the die was cast and the marriage was dead as far as both parties were concerned.

The entire philosophy underscoring N.J.S.A. 2A:34--23 is based upon a partnership concept, I.e., even though one spouse holds title, the property is the fruit of the labors of both. The old law, denying to the wife a participation in property built up over the years in her husband's name alone, while she stayed home as housewife or chatelaine, bore and attended their children, entertained, etc., and thus helped her husband amass such property, was regarded as inequitable.

Hence our courts declined to transfer property from one spouse to another in a divorce proceeding, taking the view that the statute with respect to alimony limited it to money payments, and not judicial awards of a gross sum. Parmly v. Parmly, 125 N.J.Eq. 545, 547, 5 A.2d 789 (E. & A. 1939), citing with approval Calame v. Calame, 25 N.J.Eq. 548 (E. & A. 1874).

But when the marriage has permanently fallen apart and the parties are not even living together, it cannot be said that the 'partnership' is continuing or that the wife is still contributing to the husband's income-producing abilities.

In re Osicka Estate, 1 Wash.App. 277, 461 P.2d 585 (Ct.App.1969), supports this practical approach for determining the parameters of marriage 'partnership' property rights. There suit was brought by a wife against her husband's estate for a division of his property. The parties had been separated for some years without court action between them. The court held that property acquired during permanent separation of the parties was the husband's separate property and was not subject to division because the 'community' (I.e., partnership) no longer existed. Washington is a community property state. See also MacKenzie v. Sellner, 58 Wash.2d 101, 361 P.2d 165 (Sup.Ct.1961).

To take the date of divorce as the statute implies, would be to reduce the language to an absurdity. Hypothetically, should a spouse of days or weeks or months or a few years, whose husband separated from her in modest means and thereafter acquired a fair-seized fortune by his own efforts, share therein in a subsequent divorce action as of the date of divorce?

Necessarily a court, in exercising its discretion to make an award to effectuate an equitable distribution of property acquired during the marriage, predicates such a judgment on many factors, not all of which occur in every case.

Painter v. Painter, 118 N.J.Super. 332, at 335, 287 A.2d 467 (Ch.Div.1972), sets out from varied sources a compendium of determinative factors in equitable division of property acquired during marriage and also a compendium of exclusions of property from such division (at 336, 287 A.2d 467). See also Capozzoli v. Capozzoli, 121 N.J.Super. 285, 296 A.2d 661 (App.Div.1972).

Sister states--more particularly, community property jurisdictions--apply strikingly similar criteria in delineating which properties are subject to equitable division by the court upon divorce. California excludes 'all property owned by the husband before marriage, and that acquired afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof * * *.' Cal.Civ.Code § 5108. See also Wash.Rev.Code, § 26.16.010; N.M.Stat. § 57--3--5; New.Rev.Stat., ch. 123.130; Idaho Code § 32-903; Ariz.Rev.Stat. § 25--213.

There is no question, on the testimony, that the living expenses of plaintiff and defendant exceeded the plaintiff's earnings between the date of marriage and the date of abandonment. The excess came from plaintiff's capital assets or their income, both nondistributive. In this regard, see Price v. Price, 217 Cal.App.2d 1, 31 Cal.Rptr. 350 (D.Ct.App.1963).

During the viable period of the marriage plaintiff and defendant became tenants by the entirety of the marital residence and of a farm property. In neither instance did defendant contribute towards the purchase or the furnishings. Her interests were gifts from plaintiff. Trotta v. Trotta, 103 N.J.Super. 295, 247 A.2d 145 (App.Div.1968).

The marital home, with improvements made at the time of purchase, cost $173,000. The parties agree that...