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Bartok v. Bartok

Decided: October 24, 1958.


Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.


Defendant appeals a Chancery Division order denying his application for modification of the alimony provisions contained in the judgment nisi obtained by plaintiff. Our consideration of the facts leads to an affirmance.

The parties were married in 1948. Defendant was then an air pilot, making about $4,000 a year. During the eight years he lived with plaintiff he advanced in pay and position, eventually becoming a flight captain at a salary of $14,000 a year. In February 1956 plaintiff filed her complaint for separate maintenance, alleging that defendant had abandoned her and neglected and refused to support her. There was a second count alleging that in 1951 plaintiff had, with her own funds, purchased a lot in Teaneck, N.J., on which a home was built. Title was taken in the joint names of the parties on the advice of a psychiatrist who said it might be advantageous to do so in order that the defendant might have some degree of responsibility. The complaint alleges that plaintiff advanced the monies required for building the home, except for about $14,000, represented by a bond and mortgage executed by both parties and requiring monthly payments of $130. Plaintiff demanded judgment on this count declaring that defendant had no beneficial interest in the property and directing him to convey title to her forthwith.

Immediately following the filing of the complaint, plaintiff moved for alimony pendente lite , counsel fees and costs. Her motion was supported by an affidavit setting out the facts of the complaint, and in addition thereto that she had only $700 in a bank account; that although she had been gainfully employed for a number of years as a dancing instructor, she could no longer work because of varicose

veins and age; that she had been in extremely poor health for a number of years and was under doctor's care, and that she had no source of income whatever. On April 2, 1956 defendant entered into a consent order whereby he agreed to pay plaintiff alimony pendente lite from the date of the original application in the amount of $90 a week through the Bergen County Probation Office, in addition to a counsel fee, trial fee and costs.

In March 1957 plaintiff instituted an action for divorce on the ground of defendant's adultery with a named corespondent. The complaint recited the maintenance action with its pendente lite alimony provision, and the fact that no children had been born of the marriage. Defendant, through his counsel, entered a written appearance in lieu of answer "for the purpose only of being heard on the issues of maintenance, support, counsel fees, costs, alimony and property settlement." Accordingly, he did not defend the action. On May 29, 1957 the Chancery Division entered judgment nisi in plaintiff's favor, directing that defendant pay her $90 a week alimony through the Bergen County Probation Office, and also a counsel fee, investigation costs, and costs to be taxed. The alimony figure was agreed to as part of a property settlement whereby plaintiff got sole title to the Teaneck home.

During the three-month nisi waiting period defendant bought a new home in Jutland, N.J., for $20,000, making a $4,000 down payment, the balance represented by two mortgages of $9,000 and $7,000. Final judgment was entered August 30, 1957. Defendant then married the corespondent and moved into the Jutland home in September 1957.

On November 26, 1957 counsel for plaintiff moved to have defendant adjudged in contempt for failing to pay the fees and costs called for under the judgment nisi. Defendant countered with an application to modify the alimony provision, alleging he was going into debt trying to meet payments. This elicited an affidavit by plaintiff listing her expenses of $3,647 a year. These included $2,232 for mortgage

payments and taxes, insurance on her Teaneck home, utility charges, $376 income tax and $416 for cleaning and maid service. These expenses, averaging $70 a week, left her with only $20 of the weekly alimony from which to pay for food, clothing, medical expenses and all her other needs. The cleaning and maid service, she said, was necessary because of her physical condition. She had no money in bank, securities or automobile. She had tried to work for a while but her age and health were against her. (At this time she was 48, defendant 38.) Her psychiatrist had strongly advised against her selling her home and, she added, under the circumstances the house was something she could fall back on in future years -- it was her only asset. As far as she knew, defendant had no insurance in her favor (this was confirmed by him at the subsequent hearing), and since he was engaged in a hazardous occupation, if anything were to happen to him she would be left in poor financial straits. She challenged the representation made in defendant's affidavit that his 1957 take-home pay was only $9,007.25 out of a salary of $14,501.65, and pointed out that he enjoys annual pay increases. Further, her affidavit alleged that every dollar she had received from her previous husband as part of a property settlement, as well as the proceeds from the sale of a house formerly owned by her, had gone into the present Teaneck home.

At the hearing on the application for reduction in alimony, defendant affirmed that he had bought his new marital home in Jutland for $20,000 before the entry of the final judgment in divorce, and had remarried soon after the judgment. His wife was expecting a child. He testified that he had earned $14,501.65 as flight captain in 1957, but that his net pay was $9,007.25. The $5,494.40 difference represented the following: $2,469.18 income tax; $94.50 social security; $202.80 group insurance; $1,234.92 retirement plan; and $1,493 paid the credit union on a loan, leaving a balance due of $1,000. We observe that the $1,493 figure is non-recurrent, so that disregarding the question of whether the retirement plan payment should be

considered in evaluating defendant's ability to pay, the net amount is not $9,007.25, but $10,500.25.

Defendant claimed his living expenses were $8,392.32 a year. This would average $699.36 a month. However, taking into account all monthly expenses testified to by defendant, we reach a total monthly expense of $598.53. This is some $100 a month less than defendant's figure, bringing his annual expenses to about $7,182.36. Included in our calculation of $598.53 are defendant's claimed expenses of $122.83 for mortgage payments, $17.07 for taxes, $46 in payments on two store bills (how long these will continue is not shown), and the $20 monthly installment being paid the doctor in ...

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