Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[34 NJSuper Page 316] Defendant appeals from a separate maintenance judgment awarding his wife $30 a week support, costs of suit and a counsel fee of $400 in addition to the fee allowed pendente lite. The judgment reserved to
plaintiff the right to apply to the court for the payment of any unusual medical, hospital and dental bills.
The parties were married in May 1950. There are no children of the marriage. The complaint charges defendant with abandoning plaintiff on December 26, 1952 and refusing and neglecting properly to maintain and provide for her since that date. Defendant answered denying these allegations, and by way of counterclaim sued for divorce on the ground of extreme cruelty.
Plaintiff applied for support and counsel fee pendente lite. The court allowed her $25 a week, a counsel fee of $250, and costs of the application to be taxed, including the $60 deposit required by R.R. 4:98-1(b), then Rule 3:87-4(d). Plaintiff was unemployed at the time of the award. No appeal was taken from the pendente lite order and defendant proceeded to pay the weekly support money and allowances without protest.
At the final hearing defendant withdrew his counterclaim and admitted abandonment. Testimony was taken on the question of support. On October 21, 1954 the court entered the final judgment here on appeal.
Plaintiff was employed at the time of final hearing. Her weekly gross pay was $50, and the net "take home" pay $41.83. She was under constant doctor's attention for a female disorder, with surgical intervention indicated. (At the oral argument it was revealed that plaintiff had since undergone such an operation and that defendant had paid for it.)
Following their marriage the parties had gone to live with plaintiff's parents. Defendant's grandfather then arranged to have the parties occupy an apartment rent-free in an apartment house owned by his realty company. They lived there until the separation. Soon after defendant's departure the company demanded possession of the apartment. Plaintiff then moved in with her parents. From her testimony it appears that of her $66.83 weekly income -- $41.83 net earnings and the $25 paid her by defendant -- she had
the following expenses, calculated on a weekly basis: $20 board paid to her parents; $7.50 doctor bills; $4 for drugs; $5 currently being paid on two loans incurred for lawyer's services and moving; $4 for dog food; $10 for clothes; and miscellaneous expenditures for bus fares, lunches and the like. Except for the latter minor items, these expenses total $50.50 a week.
Since leaving his wife defendant has lived in his parents' home where his grandfather also resides. He pays no rent or board. His father is a physician and his grandfather is in the construction business. For some time past defendant has been an employee of this construction company, first as a mason's helper and latterly as a journeyman mason, earning $3.75 an hour. The normal work week is 35 hours. A payroll record introduced in evidence shows that for 17 weeks preceding the hearing defendant earned a total of $1,313.89 net after deductions, or an average net weekly "take home" pay of $77.28. He did not work for two weeks during this period, allegedly because no work was available. There was some testimony that in addition to his wages he received $10 and sometimes $15 for "expenses." Defendant claims this was to reimburse him for gasoline used in transporting co-workers from job to job, and for beer or coffee he treated them to at the direction of the company.
Plaintiff testified that defendant owned an automobile worth $1,500; that his mother had said he had about $25,000 in government bonds and a $10,000 endowment policy payable at age 25; and that defendant had once told her his grandfather had set up a $25,000 trust fund for him which would be his at 25. Defendant admitted he owned a recently purchased automobile but denied the existence of any government bonds -- the few he had were turned in to pay his attorneys and to make the weekly pendente lite support payments. He also denied the existence of any endowment policy or trust fund. We do not have the testimony of defendant's mother and grandfather; it would have been helpful in determining just where the truth lay.
Defendant also testified that some time previously his father had "loaned" him $25 a week "on a few occasions," with the understanding that this money was to be repaid. There were two other outstanding loans: $1,000 owed on his car and a recent $1,400 loan from his father, on each of which he was paying $20 a week.
Plaintiff's counsel placed considerable stress in his examination of the two main witnesses and in argument to the trial court upon the fact that defendant's father was a well-to-do physician and the grandfather a wealthy man; that defendant was a "millionaire's son who works not because he has to but because it is the thing to do" and was living in the lap of luxury; that having "walked out" on plaintiff, defendant should be made to pay for doing so. The trial court properly observed that plaintiff's needs and defendant's income were the only considerations; the fact that his parents or grandfather might be wealthy was of little moment. In its oral decision, the court noted defendant's average net weekly earnings and detailed plaintiff's needs, which it apparently accepted as ...