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Schwartz v. Schwartz

Decided: October 25, 1954.

ANN LINN SCHWARTZ, PLAINTIFF-RESPONDENT,
v.
BERNARD A. SCHWARTZ, DEFENDANT-APPELLANT



Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

[32 NJSuper Page 431] Promptly following the institution of an action for divorce the plaintiff made application for the allowance to her of temporary alimony for the support of herself and the three children of the marriage. Affidavits were submitted by the parties disclosing the occupation and earnings of the defendant, the financial situations of the

parties, and the monetary expenditures formerly disbursed for the maintenance of the family and of the home.

On February 19, 1954 an order was made directing, pendente lite , the defendant to defray the maintenance costs of the home and to pay to the plaintiff a total of $120 per week for her support and that of the children.

On April 23, 1954 the plaintiff made another application for an order to oblige, inter alia , the defendant additionally to pay the wages of a full-time domestic maid and to command him to pay "all outstanding credit bills which were incurred prior to the order pendente lite." The bills were those which seem to have been contracted by the plaintiff even before the institution of this action on credit accounts established by the defendant at Best & Co., Macy's, Saks Fifth Avenue, Bonwit Teller, Lord & Taylor, and at one meat market.

On June 1, 1954 it was ordered that the defendant "pay to the plaintiff for a part-time household worker not to exceed two days each week at the prevailing rates of such employment * * *" and "that the defendant pay all outstanding credit bills which were incurred prior to the date of the pendente lite order made in this cause * * *."

It is from those parts of the latter order that the defendant appeals. So often litigation thrives without substantial purpose where love has departed and animosity has arrived. The opinion of the trial judge from which this order resulted discloses that he was called upon to consider and determine some 19 requests.

The augmentation of the alimony to embrace the employment of a part-time household servant, which we are told will amount to an additional $16 a week, is not in view of the defendant's current earnings of sufficient significance, or so manifestly misconceived, as to induce us to disturb the discretionary action of the trial judge in that particular.

Assuredly pendente lite alimony orders may be revised and altered by the court from time to time as circumstances may require. N.J.S. 2 A:34-23. The matter rests in the sound discretion of the court. Poline v. Poline ,

136 N.J. Eq. 207 (E. & A. 1945). It is not doubted that such an order may be revised and altered because of inadvertence, mistake, change of conditions, and other reasons which equity and justice may be shown to require.

We do, however, doubt the wisdom of gratifying the commonly characteristic animosities of such litigants by encouraging successive applications where conditions have not changed and the subject matter was presented to and presumably considered by the court on the former application. Here, the expense of maid service was specifically disclosed to the court in the proofs submitted on the previous application. The conditions in that regard were not shown to have changed. 10 New Jersey Practice, Vide (Herr, Marriage, Divorce and Separation), ยง 388, p. 381.

We proceed to the consideration of the propriety of that part of the order under review which requires the defendant to pay all of the unpaid debts ...


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