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Brummer v. Brummer

Decided: October 27, 1949.

ETHEL S. BRUMMER, PLAINTIFF,
v.
HAROLD M. BRUMMER, DEFENDANT



McLean, J.s.c.

Mclean

This matter is opened to fix the form of judgment and allowance for counsel fee and costs. There are three motions which were heard as one.

The defendant by his motion seeks a reduction in the amount of his monthly alimony payments. I determined to dismiss this motion on two grounds: (1) that because of his delinquencies his application for relief could not be entertained (Cooper v. Cooper , 103 N.J. Eq. 416 (Ch. 1928)), and I could find no mitigating circumstances by way of a substantial compliance with the existing order as in Traudt v. Traudt , 116 N.J. Eq. 75 (E. & A. 1934); Williams v. Williams , 12 N.J. Misc. 641 (Ch. 1934); (2) that even though the application were to be considered on the merits notwithstanding defendant's delinquencies, there was insufficient evidence to support a showing of such a change in circumstances as would justify a reduction.

The only witnesses presented on the part of the petitioner were himself and his personal accountant. The accountant's records seem to have been prepared for the most part from information furnished by the petitioner and not from a routine whereby the figures found their way from their source into the accounts. Such testimony as the accountant was able to give was cumulative and lacking in the elements which would give it value as corroboration. The petitioner set up that his misfortunes arose out of new federal regulations and rules of the Stock Exchange affecting the type of transactions handled by him and methods of doing business. He brought no one familiar with the situation to explain it or to corroborate his statement.

The plaintiff by countermotions sought: first, an increase in her alimony; and, secondly, to hold the defendant in contempt for failure to make the required payments.

The first of these two motions I determine to dismiss, because of the failure of the plaintiff to show a change in circumstances as to her own needs or the means and ability of the defendant to pay an increased amount.

As to the second, I found that the failure of the defendant to make payments as required under the existing order is

clear; that his conduct has been contumacious and that the order should contain the usual provisions declaring him to be in contempt and for punishment.

Plaintiff's counsel contends that before the defendant can purge himself of his contempt he should pay all arrears up to the date of the order. This is sometimes done, but is not in accord with existing law. The order should cover the amount due as of the date of filing the petition; as to arrears subsequent thereto defendant is entitled to his day in court and such arrears should be made the subject of another proceeding. It was determined at the hearing that the amount due was $4,450.

Defendant now comes by substituted counsel and offers to purge himself of his contempt and to make payment of any arrears, to the end that he may be permitted to offer additional testimony in support of his petition seeking a reduction in the amount of the alimony. He argues, however, that the amount sought in the contempt proceedings was erroneously arrived at and that the amount claimed as arrears subsequently accrued is excessive.

The circumstances are these: the parties were divorced by final decree of the Court of Chancery of this State September 21, 1945. Prior thereto (January 3, 1945), they had entered into an agreement whereby payments were to be made by the defendant to plaintiff for the support of herself and two minor children. The agreement was approved by the court and made a part of the decree nisi. It provided that defendant should pay $550 per month, but that this amount would be reduced on certain contingencies. The pertinent provisions of the decree as to such reduction are as follows:

"(e) If at any time after the calendar year 1945 (but not before) the Husband's net income, as herein defined in subdivision (g), falls below $7,500 per annum, he shall pay to the Wife, instead of $550 a month ...


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