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Gross v. Gross

Decided: October 30, 1952.

SYLVIA GROSS, PLAINTIFF-RESPONDENT,
v.
SOL GROSS, DEFENDANT-APPELLANT



Eastwood, Goldmann and Francis.

Per Curiam

These cross-appeals involve the allowance to the plaintiff-wife of $125 per week alimony and $1,000 counsel fee, pendente lite , by the advisory master sitting in the Chancery Division of this court.

The parties were married in 1934 and lived together with some interruption until April 7, 1952, when defendant-husband left plaintiff. Immediately thereafter he began sending her $60 weekly for her support and maintenance. Deeming this sum entirely inadequate to maintain her in accordance with her needs, her husband's means, and the standard on which they had been living, the wife instituted suit for separate maintenance on April 24, 1952. She applied for alimony pendente lite , counsel fees pendente lite , suit monies, costs and sheriff's and reference fees, basing the application upon her verified complaint. After hearing the argument of counsel and considering the complaint, answer, affidavits in support of and in opposition to the application, and defendant's detailed answers to interrogatories, the court on July 16, 1952 allowed plaintiff alimony and counsel fees pendente lite in the indicated amounts, together with costs and suit monies.

Counsel for defendant, without notice to plaintiff, on July 22, 1952 obtained an ex parte stay of the order. Plaintiff

moved to vacate the stay immediately after learning of its entry. Her motion was granted on July 25, 1952; the court however, temporarily stayed the execution of the July 16 order until the next sitting of the Appellate Division for motions, in order to give defendant an opportunity to apply to this court for a stay of that order. Defendant was directed to pay his wife $65 a week in the meantime. This was merely a "stop-gap" arrangement, apparently inserted after it had been indicated to the court that the wife would be left without any support whatsoever, and after defendant had volunteered to pay that sum each week. On August 18, 1952 the Appellate Division denied defendant's application to stay the execution of the July 16 order, and directed him to pay his wife $125 a week maintenance and $1,000 counsel fees pendente lite. Defendant now appeals from the July 16 order and plaintiff cross-appeals, requesting that the allowance be increased to $350 a week and the counsel fees to $7500.

Defendant claims that the Chancery Division erred in entering the pendente lite order because plaintiff failed to annex a supporting affidavit to her notice of motion for alimony and counsel fees pendente lite , pursuant to Rule 3:87-2. This argument not having been raised in the Chancery Division, it need not be considered here. It may be observed, however, that plaintiff filed a detailed complaint, setting forth her cause of action, her needs and defendant's means, and this complaint was verified by her affidavit, which incorporated all the allegations of the complaint by reference. Rule 3:11. Further, defendant filed an answer on the merits, setting up defenses; he also filed an affidavit in opposition to the motion, plaintiff filed a detailed affidavit in support of her motion, and thereafter defendant filed a supplemental affidavit in opposition. In addition, as has already been noted, the court also had before it a comprehensive set of interrogatories with defendant's answers thereto, in which he set forth in considerable detail facts relating to the marriage relation, household expenses, and his own

means. In light of the record, the court did not err in proceeding to consider the wife's application and in entering a pendente lite order.

It is next argued on behalf of defendant that there was an abuse of discretion in allowing plaintiff support pendente lite. The contention lacks merit. Plaintiff presents a prima facie case. Defendant, by answering affidavits and answers to the interrogatories, admits he left his wife on April 7, 1952. His leaving was without justification. Only a spouse's guilt of a matrimonial offense will justify a separation. Irwin v. Irwin , 88 N.J. Eq. 139, 140 (Ch. 1917); Germain v. Germain , 20 N.J. Super. 565, 573 (Ch. Div. 1952). The only reasons assigned by defendant for leaving his wife are that they constantly quarreled about petty matters, most of the arguments being precipitated by plaintiff; she always tried to exercise her will over his, and when he refused to do as she wanted she would go into tantrums, scream, yell and on one occasion even threatened to commit suicide; she was indifferent to his health; and, finally, her actions had reached a point where he could no longer physically or mentally continue to take her abuse and nagging, so that it became necessary for him to leave. These alleged actions on the part of the wife do not constitute a matrimonial offense.

The fact that defendant voluntarily sends his wife $60 a week does not, under the circumstances, amount to adequate support, within the meaning of the cases which require that such support be consistent with the wife's needs, the husband's means, the station in life of the parties, and the standard on which they had been accustomed to live. Bonanno v. Bonanno , 4 N.J. 268 (1950), and cf. Dinnebeil v. Dinnebeil , 109 N.J. Eq. 594 (E. & A. 1932); Dietrick v. Dietrick , 88 N.J. Eq. 560 (E. & A. 1918).

It is uncontroverted that defendant's income in 1949 was $40,643, income from securities and investments totalling over $25,000; that in 1950 he received $61,753, of which over ...


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