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Testut v. Testut

Decided: January 28, 1955.

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



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

Francis

Defendant appeals from certain orders of the Chancery Division increasing alimony and support payments for his former wife and their three children, and denying his application for reduction of the obligation.

The wife obtained a judgment nisi for divorce on March 22, 1950. Prior to this date she and the defendant, both being represented by counsel, executed a support agreement under which the husband agreed to pay $100 weekly for that purpose. This sum was allocated $40 for the wife and $20 for each of the three children of the marriage. In addition, he agreed to pay all their extraordinary medical and dental expenses. The children were aged 12, 10 and 9 years when the divorce was granted.

The contract provided also that certain insurance policies then being carried by the husband, in which the wife was named as beneficiary, would be continued by him until the youngest child became 21 years of age. The husband was privileged, however, to change the beneficiary in the event of the wife's remarriage. It seems clear from the record that the primary and common purpose of this stipulation was to assure a college education for the children in the event of the death of Testut.

The agreement was approved by the court and incorporated in the judgment nisi.

On February 25, 1953 plaintiff sought an increase in the support allowances because of alleged change of circumstances and a hearing was had thereon at which both parties testified. The wife discussed at some length the problem she faced in taking care of and providing for her three children under the existing support order. The rent for the apartment she and the children occupied had been increased, food and clothing were more burdensome, and the

income tax on her share of the weekly allowance had increased somewhat. The increased expenditure for food and clothing did not arise so much from a rise in prices, although the mother did mention this. The intervening years between October 1949, when the support agreement was signed, and February 1953, when more financial assistance was sought, had brought about changes of considerable consequence in the lives, habits and needs of the children. At the time of the last hearing in November 1954, all three children were in high school. The oldest boy was then a senior and looking forward hopefully to college. At the first hearing, two were in high school and the youngest, a daughter, was to matriculate in September 1953. They were bigger and older; it was more expensive to feed them. Keeping them decently clothed was more costly. The total needs for support of plaintiff and the children were itemized at $175 weekly.

The defendant remarried eight days after the divorce judgment became final. He took up residence in Maplewood, N.J., with his new wife, and was living there with her when plaintiff's application was first presented to the court. At the time of this hearing she was expecting a child and they were planning on moving to Radnor, Pa., a suburb of Philadelphia, where Testut had purchased another home.

Consequently, defendant then owned two homes. The one in Maplewood was up for sale at an asking price of $31,000. The price of the new home was $29,500.

Testut's income had increased during the intervening years. In 1950 it was $16,700; $17,350 in 1951; $19,321 in 1952; $20,700 for 1953. His obligations had increased also, largely through the burden of carrying two houses and a new marriage.

Decision was reserved and on June 10, 1953 the wife was granted an increase of $25 a week. However, an order was not entered thereon over the ensuing summer and on October 23, 1953 defendant applied for a rehearing, for a reduction of the allowances and for the custody of the younger boy. The application was supported ...


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