Greenberg v. GreenbergGreenberg v. Greenberg
Plaintiff Myrna Greenberg was granted a judgment of divorce grounded in defendant‘s extreme cruelty. She was awarded alimony at the rate of $100 a week and was grаnted a measure of “equitable distribution” of the parties’ real and personal property. Defendant appeals from the judgment, challenging only the quantum of the weekly alimony and the equitable distribution.
* * * In all actions brought for divorce, divorce from bed аnd board, or nullity the court may award alimony to either party, and in so doing shall consider the actual need and ability to pay of the parties and the duration of the marriage. In all actions for divorce other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenanсe that is fit, reasonable and just. * * *
In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially aсquired by them or either of them during the marriage.” [Emphasis added]
Our review of the record satisfies us that the trial court misconstrued — insofar as alimony was concerned — the operative provisions of
On the issue of alimony the trial court, in a written opinion, concluded:
N.J.S. 2A:34-23 provides further that this Court may also consider the proofs made in establishing the ground on which divorce sought in determining an amount of alimony that is fit, just, and reasonable. The indignity of defendant‘s conduct to the knowledge of his wife in her condition was so inhuman as to call on this Court to inсrease the projected amount of alimony under the language of the statute.
I increase the award of $75 per week to $90 per week in this regard * * *
In a letter opiniоn filed contemporaneously with the formal opinion, similar views were stated:
During her illness and hospitalization there is no question but that defendant committed adultery to alleviatе his physical needs although I find that this was not with the consent and blessing of his wife.
It seems to me that I must consider these factors in the award of alimony. See
I will allow $75 per week, plus $10 per week for medical and hospitalization, plus an increase of $15 per week on my consideration of the proofs (
It is clear from the above-noted impressions that the $15 a week, added to that which the trial court found nеcessary to maintain plaintiff and attend to her necessary medical care, had punitive overtones grounded in the husband‘s misconduct.
We are satisfied that the statutory permission that “the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just,” does not bespeak legislative intendment that marital misconduct may generate an award for alimony in excess of that which might be supported by long-established and traditional bases for such grants. Punishmеnt of marital wrongdoing was not intended, nor could it be. Cf. Blaine v. Blaine, 96 N.J. Super. 460, 462 (Ch. Div. 1967). Rather, the Legislature merely meant that trial courts might consider the proofs to support a matrimonial cause of aсtion when it turned to the issue of alimony and support assessment. Examples thereof would include the length of marriage, the mental and physical health of the aggrieved spousе, the mode of living which the parties enjoyed, and the like.
The long-standing tests for the amount of equitable support and maintenance have not in our view been altered in any wise by the statutory amendment. They continue to encompass: (1) the actual needs of the wife; (2) the husband‘s actual means and his ability to pay support; (3) the physical condition of the parties; (4) their social position; (5) the separate property and income of the wife, and (6) any other factors which bear upon the question of fair and reаsonable support.
That the Legislature intended that the basic tests for reasonable alimony be continued is evidenced by the words “fit, reasonable and just,” as contained in
As to equitable distribution оf the real and personal property of the parties, defendant challenges so much of it 1) that orders the transfer of the marital home to plaintiff and 2) that directs pаyment by defendant of $15,000 out of approximately $70,000 which he allegedly held in savings accounts.
As to the marital home, plaintiff wife was awarded all the equity in it, subject to a lien in favor of defendant‘s parents in the amount of $10,000 loaned by them to the parties to purchase it. Our review of the record and the trial court‘s determination in both its opinion and supporting letter memorandum does not demonstrate the basis for this determination nor the manner in which it constitutes equitable distribution of the real estate. We do not perceive any meaningful findings of fact or conclusions of law as mandated by R. 1:7-4 to support the judgment insofar as it relates to the real property.
Likewise, we do not find sufficient support in the record nor meaningful findings by the trial court to support the purported “equitable” distribution of monies in savings accounts, totaling approximately $70,000, which would warrant the award of $15,000 therefrom to plaintiff. The finding that defendant was possessed of $70,000 was the product of comрutation based upon interest from those accounts reported by him on income tax returns. There is a very strong suggestion that the monies came under his control from his parents, аnd whether they were gifts to him in whole or in part is not clear. Cf. Painter v. Painter, 118 N.J. Super. 332 (Ch. Div. 1972). Even assuming there be a fund in the approximate amount of $70,000 and that that fund is subject to the distribution contemplated by the statutе, we are not supplied with, nor does the record support, the basis for the determination that the wife should enjoy $15,000 of it.
Accordingly, the judgment under review is reversed insofar as it (1) granted plaintiff wife $100 a week alimony;
Reversed and remanded. We do not retain jurisdiction.