The opinion of the court was delivered by
The defendant appealed to the Appellate Division from an order of the Chancery Division which granted a retroactive increase of alimony to the plaintiff and awarded a counsel fee to her attorneys. The defendant’s notice of appeal was filed eight days beyond the period prescribed in the rules and the Appellate Division denied a motion for extension under R. R. 1:27B. We granted certification on the defendant’s application.
In 1921 the plaintiff married the defendant and in 1933 she divorced him. Custody of their three children (Edna M., Robert E. and David J.) was awarded to her and pursuant to an agreement she was allowed $600 per month for alimony plus $100 per month under an annuity policy which had been purchased for her. In 1945 a consent order reducing her alimony was entered in the Court of Chancery. It set forth that Edna had become 21 years of age in 1943 and had married and that Robert had “become emancipated.” It provided that the plaintiff should receive (in addition to the $100 per month under the annuity policy) $465 per month to be allocated as follows: $300 per month as alimony and $165 per month for the support of David until he reached his eighteenth birthday or until further order of the court. In 1947 another consent order reducing alimony was entered in the Court of Chancery. It set forth that David had reached his eighteenth birthday and that the defendant had undertaken his “care, support, maintenance and tuition.” It provided that the plaintiff should receive
In 1951 the plaintiff filed notice that she would apply to the Chancery Division for an increase in alimony. Her supporting affidavit set forth that her net income was $4,126; that the cost of living had risen and she found it impossible to set aside savings to meet any emergencies or provide for her sustenance in the event the defendant predeceased her; that she lived in an East Orange apartment which was inadequate for her needs and for the needs of her children and grandchildren when they visited her; and that the defendant, whose reputed wealth was “in excess of two million dollars,” traveled extensively and lived lavishly with his third wife at Princeton where he maintained “a household requiring two servants and nurse as well as other employees.” In his answering affidavit the defendant denied that he lived lavishly and asserted that his extensive travels were in connection with his business. He stated that he considered the plaintiff’s apartment accommodations to be “fully adequate for her needs”; that it was inconceivable to him that the plaintiff had been unable to set aside a substantial sum as savings “if she lived within her means”; and that he was now willing “without prejudice” to increase the sum which he was paying to the plaintiff “to an amount sufficient to meet the 18% cost of living increase.” After the affidavits were filed formal hearings were held in the Chancery Division on various dates between March 1952 and September 1954. A settlement conference was held on October 19, 1953 between the court and counsel. The defendant’s counsel asserts his understanding that if a settlement was consummated it was to be effective as of October 19, 1953. The plaintiff’s counsel asserts his understanding that whatever order the court entered was to be retroactive to October 19, 1953. In any event, the settlement negotiations failed and the hearings proceeded.
During the hearings the plaintiff testified that while she was married to the defendant her family lived very com
“The fact is, each time the question of my children’s education was to come up to go to college, he would say, ‘If you want the children properly educated, you will just have to take what I feel you are deserving, and I will send these children to college.’ Knowing my sons and daughter wanted a college education, and I wanted it for them so badly, I would consent to take a smaller income, so that it would help my children to go through college. Consequently, I stayed in the background until my sons .graduated from college
Prior to the entry of the 1933 divorce decree and the 1945 and 1947 reduction orders, no judicial inquiry was made as to the defendant’s financial condition. However, in the present proceeding, evidence on that issue was taken and, although the defendant’s testimony was neither complete nor satisfactory, there is enough in the record to establish that he is wealthy, has a substantial current income, and a high potential of earnings. It also seems fairly inferable that his financial resources and annual income increased significantly during the period after the last reduction order was entered in 1947. He is a financial consultant and eco
There is ample evidence in the record to establish the defendant’s very substantial earning capacity. Miss Lord testified that in 1952 he received $47,138.47 from various public utilities for services rendered as a consultant; in 1953 such fees aggregated $81,507; and through August 1954 they aggregated $17,825. The heavy expenses which he reported in connection therewith were paid to the American Institute of Management which also received many outright contributions from him. His 1952 net income was stated to be approximately $27,000 and his contribution to the Institute during that year was reported at $10,000. While testifying in October 1953 the defendant suggested that his health would no longer permit him to continue his extensive activities but he introduced no supporting medical evidence and Miss Lord’s testimony indicated that his consulting work thereafter was still substantial. In any event we consider it unnecessary to pursue the matter or to present any further details as to the defendant’s wealth and income. His brief on appeal does not question the Chancery Division’s findings with respect to his favorable financial status nor does it
Under our practice rules, as originally adopted, the time for taking an appeal could not be extended under any circumstances. See
In the Matter of Estate of Horton,
1
N. J.
571 (1949),
certiorari
denied
Gay v. Fidelity Union Trust Co.,
337
U. S.
945, 69
S. Ct.
1502, 93
L. Ed.
1748 (1949);
In re Pfizer’s Estate,
6
N. J.
233, 238 (1951);
Stern v. Glasser,
10
N. J.
596, 599 (1952). Occasionally, therefore, an appeal was dismissed because the appellant’s notice of appeal was inadvertently filed several days beyond the allowable 45-day period, even though the respondent was in nowise harmed by the delay. The resulting injustice suggested the need for a practice change and on January 1, 1953 this court adopted an amendment which permitted the appellate court to grant an appropriate extension not over 30 days “upon a clear showing of a good cause and the absence of prejudice.” See
Rule
1:7-9;
R. R.
1 :l-9;
R. R.
1:27B;
Monica v. Monica,
25
N. J. Super.
274, 278
(App. Div.
1953).
Cf. In re Nuese’s Estate,
We
are satisfied that the plaintiff was in nowise prejudiced by the short delay in the filing of the notice of appeal; indeed her brief contains no suggestion to the contrary although a goodly portion of it is devoted to her procedural contentions. And we are equally satisfied that the inadvertence of the defendant’s counsel may justly be deemed to constitute a showing of good cause within
R. R.
1:27B. See
Hogan v. Hodge,
6
N. J. Super.
55, 60
(App. Div.
1949);
De Santa v. Nehi Corporation,
171
F. 2d
696, 698
(2d Cir.
1948). It is true, as the plaintiff points out, that litigants are generally held bound by the mistaken as well as the sound procedural determinations of their counsel.
Karcher v. Philadelphia Fire and Marine Ins. Co.,
19
N. J.
214, 216 (1955);
State v. Newman,
36
N. J. Super.
506, 511
(App. Div.
1955). But the rule is not an absolute one and is to be applied rationally and with fair recognition of the fact that justice to the litigants is always the polestar. See
Devlin v. Surgent,
18
N. J.
148, 153 (1955);
New Jersey Highway Authority v. Renner,
18
N. J.
485, 495 (1955).
We have concluded that the Appellate Division should have granted the defendant’s application for extension and that the plaintiff’s motion to dismiss the appeal must be denied. The hearings in the Chancery Division were extensive and the issue between the parties bore on the payment of alimony which is a continuing obligation subject to continuing review.
Parmly v. Parmly,
125
N. J. Eq.
545, 550
(E. & A.
1939);
Kirshbaum v. Kirshbaum,
125
N. J. Eq.
558, 561
(E. & A.
1939);
O’Hara v. O’Hara,
137
N. J. Eq.
369, 375
(E. & A.
1945). The earlier orders were
The husband’s duty to support and maintain his wife was firmly established at common law.
Bonanno v. Bonanno,
4
N. J.
268, 273 (1950);
Turi v. Turi,
34
N. J. Super.
313, 320
(App. Div.
1955). And although absolute divorces were granted at common law by the ecclesiastical courts only for such causes as rendered the marriages void
ab initio
and entailed no incidental support or alimony, limited divorces were granted for other causes and in such instances the ecclesiastical courts ordered appropriate payments of support or alimony.
Lynde v. Lynde,
64
N. J. Eq.
736, 751
(E. & A.
1902);
O’Loughlin v. O’Loughlin,
12
N. J.
222, 231 (1953);
Vernier and Hurlbut, The Historical Background of Alimony Law and Its Present Statutory Structure,
6
Law & Contemp. Problems,
197 (1939). In our own State support or alimony for the wife has been an incident of divorce proceedings since the act of December 2, 1794 which vested jurisdiction in the Court of Chancery in divorce cases, specified the grounds for divorce, and provided that the court may make such order relating to the wife’s alimony as “may be fit, equitable and just.”
Lynde v. Lynde, supra; Herr, Marriage, Divorce and Separation (2d ed.
1950) (10
New Jersey Practice),
§ 274. Later enactments carried forth
In the leading case of Dietrick v. Dietrick, 88 N. J. Eq. 560, 561 (E. & A. 1918), Justice Trenchard pointed out that alimony was the method of enforcing the continuing duty of support which the husband owed his wife and which he could not disavow by misconduct resulting in divorce; with respect to its amount, he noted that no rigid standard could be prescribed and that although the wife’s needs and the husband’s means were major considerations they were not the exclusive ones. As he tersely put it: “There should be taken into account the physical condition and social position of the parties, the husband’s property and income, including what he could derive from personal attention to business, and also the separate property and income of the wife. Considering all these, and any other factors bearing upon the question, the sum is to be fixed at what the wife would have the right to expect as support if living with her husband.” Expressions of like effect are found in many recent decisions of our courts. See Mowery v. Mowery, 38 N. J. Super. 92, 105 (App. Div. 1955); Turi v. Turi, supra; Testut v. Testut, 34 N. J. Super. 95, 100 (App. Div. 1955); cf. Bonanno v. Bonanno, supra.
After alimony is fixed in the original divorce judgment it may be altered by the court upon application by either party; indeed
N. J. S. 2A
:34-23 which deals with alimony orders expressly provides that such orders “may be revised and altered by the court from time to time as circumstances may require.” In
Cohen v. Cohen,
15
N. J. Misc.
666, 668
(Ch.
1937), the court pointed out that the statute contained no reference to altered circumstances and
In any event, the record in the instant matter contains adequate evidence of changed circumstances since the entry of the original alimony order of 1933 and the reduction orders of 1945 and 1947. The plaintiff’s testimony as to the reasons underlying her consents to the 1945 and 1947 reduction orders and her 1951 application for increased alimony was clear and persuasive. She was willing to live at a reduced scale while her children’s education was being taken care of appropriately by the defendant. After their education had been completed she endeavored to maintain herself within the reduced amount but found it increasingly difficult to do so. The costs of living were persistently rising and her living facilities were decreasing with equal persistency. She was obliged to give up her ear and to maintain her apartment without domestic help of any kind and she was in no position to replace her furniture which was over twenty years
Not only has the plaintiff’s financial condition worsened since the entry of the original alimony order of 1933 and the reduction orders of 1945 and 1947 but the defendant’s financial condition has bettered. At oral argu
Every application for alimony or increased alimony rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters. See
Richmond v. Richmond,
2
N. J. Eq.
90, 92
(Ch.
1838);
Dale v. Dale,
13
N. J. Super.
59, 62
(App. Div.
1951). Giving fair and studied consideration to the plaintiff’s current needs, the defendant’s current wealth, income and income potential, and all the other relevant
The final point requiring our attention is the defendant’s attack on the allowance of counsel fee which is also a matter resting generally within the trial court’s discretion. See R. R. 4:55-7(a); 11 Herr, supra, § 1011 et seq. Cf. Lasasso v. Lasasso, supra; Turi v. Turi, supra. An affidavit of services executed by a member of the long established firm of attorneys representing the plaintiff set forth that “there were 14 appearances in court totalling 12% days and approximately 200 hours were spent on this matter, exclusive of the court appearances.” As has been indicated, the protracted proceedings were in large part necessitated by the defendant’s resistant attitude. The belated filing of his notice of appeal resulted in more delay and in intermediate appellate steps which might readily have been avoided. Counsel for the plaintiff has applied to this court for an additional allowance but we have concluded that the amount granted by the trial court, which we shall not disturb, was fairly sufficient to include the services rendered on appeal ■as well as those rendered below. The plaintiff may, however, have her actual disbursements taxed as part of her costs. See R. R. 1:9-2.
Affirmed.
For affirmance—Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wacpieneeld, Burling, Jacobs and Brennan—7.
For reversal—None.