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Testut v. Testut

Decided: September 16, 1954.

RUTH E. TESTUT, PLAINTIFF-RESPONDENT,
v.
RICHARD S. TESTUT, DEFENDANT-APPELLANT



Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Defendant husband appeals from two orders of the Chancery Division respectively dated March 2 and May 11, 1954. By order of this court entered May 24, 1954 defendant was permitted to deal with both these orders in one appeal.

Plaintiff had obtained a judgment nisi for divorce on March 22, 1950. Incorporated therein and made a part thereof was an agreement executed by the parties on October 4, 1949 by whose terms defendant, among other things, agreed to pay $100 per week (or, at his option, $430 a month) in advance, as and for alimony for the wife (40% of the amount) and support for the three children (20% for each). Defendant

subsequently remarried. On February 25, 1953 plaintiff moved to modify the judgment nisi by increasing the alimony and support provisions, alleging that there had been a "substantial change of circumstances" since the date of the making of the agreement. Both parties testified at the hearing on the motion held April 29, 1953.

On June 10, 1953, and before the trial judge had made any determination, defendant's attorney wrote him requesting that he examine the children before the matter was concluded. This letter was designed to bring to the court's attention the fact that the children had known nothing of their mother's application for an increase, that they were living comfortably and lacked nothing, and were concerned only with the college educations which their father had promised to provide. Two days later the trial judge wrote counsel that he would allow an increase of $25 a week for the support of plaintiff and the children as long as defendant continued to carry the insurance policies he had taken out for the benefit of the children. These policies were intended to protect their college education in case of the father's death. The letter further informed counsel that in the event the policies were cancelled, the support would be increased by $40 a week instead of $25. Defendant's request that the court speak to the children before determining the matter was never answered.

During the summer of 1953 a child was born to defendant and his second wife. The older son by the first marriage lived with defendant that summer and worked at a job he had secured for him, with the result that the boy saved over $400. The younger son also secured summer employment through plaintiff's brother. In the light of these facts and the additional financial burden cast upon defendant for medical bills incurred because of the birth of the child and medical treatment for his new wife, and since no order had as yet been entered on the trial court's letter decision of June 12, defendant on October 23, 1953 moved, on affidavits, for (1) a rehearing of plaintiff's motion for modification of the agreement incorporated in the judgment nisi; (2) for

a reduction of the allowances contained therein; and (3) for an order granting him partial custody of the older boy and full custody of the younger one. Answering affidavits were filed by plaintiff, and a reply affidavit by defendant. It may be observed at this point that defendant's affidavits set out in some detail facts which should have persuaded the court to allow the application for a rehearing.

Before defendant's motion was determined, his attorney, by letter dated November 10, 1953, applied for the taking of oral testimony on the motion, setting out legal precedents justifying the relief sought. On November 23, 1953 the trial judge wrote counsel denying defendant's application to reopen the hearing, stating that if defendant "now claims a change of circumstances since April 30, 1953, he is at liberty to bring a new application for modification and submit the facts to the court."

The order of March 2, 1954 modified the provisions of the judgment nisi by increasing the provisions for support and maintenance from $100 to $125 a week so long as defendant continued to carry the life insurance policies for the benefit of the three children of the first marriage, and in the event the policies were cancelled the amount would be increased to $140 a week. This order was made retroactive to June 12, 1953. The order of May 11, 1954, among other things, denied defendant's application for a rehearing of plaintiff's motion for modification of the judgment nisi , as well as his applications for a reduction and for custody.

We take special note that the court did not, prior to entering these two orders, find the facts specially and state separately its conclusions of law thereon. It could have done so in writing or by dictating its findings and conclusions to the court stenographer in open court. Nor did the trial judge file an opinion or memorandum of decision prior to entry of the orders. R.R. 4:53-1, which closely follows Federal Civil Rule 52(a), as amended, 28 U.S.C.A. p. 13. We may look to the ...


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