Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
[73 NJSuper Page 375] This is an appeal by plaintiff from a Chancery Division judgment entered in her separate maintenance action awarding her $175 a week for her support and maintenance and $50 a week for the support and maintenance of Carmen, the infant son of the marriage, of whom she was given permanent custody subject to defendant's visitation rights. These awards were to be effective on and after June 28, 1961, the date of the trial court's oral opinion. Defendant was to pay his wife and son's medical and dental expenses. The judgment further directed that he pay plaintiff's attorneys $697.89 for their disbursements and $4,360 as a reasonable counsel fee, based on a calculation of $5,215 less a credit of $855. Defendant's counterclaim for an accounting and judgment thereon was dismissed on the ground that he had failed to sustain his burden of proof in respect thereto.
Plaintiff contends that the award for support and maintenance is inadequate, it should have been made retroactive to the date of abandonment, and a counsel fee of $10,000 allowed.
Defendant does not question the correctness of the trial court's determination that he had abandoned plaintiff and she therefore was entitled to support and maintenance for herself and the son. Nor does he challenge the dismissal of his counterclaim.
Defendant had been giving his wife $250 a week before abandoning her on November 1, 1957. He admits that in addition he paid for some 15 or 16 items, estimated by the trial judge as totalling $3,500 a year. These included the repair and maintenance of the marital home; household appliances, furniture and repairs; some of plaintiff's clothing; clothing, camp and incidentals for the boy; family vacations and entertainment; the telephone, and the gardener. Plaintiff testified that defendant from time to time also gave her expensive gifts, such as mink stoles, a diamond ring and diamond wristwatch, as well as cash gifts. The record leaves us with the indelible impression that for many years preceding the abandonment the family enjoyed a far above average standard of living. After leaving the marital home defendant gave his wife only $138 a week and stopped paying for the other items we have mentioned.
Plaintiff is over 50 years old, in poor health and apparently unable to work or support herself and her son. Defendant is several years younger. He is the most active partner in and the executive manager of C. Salvatore & Sons, a million dollar building construction business, and holds a substantial interest therein. The value of that interest and his actual wealth could not accurately be determined because he disclaimed having any specific knowledge about the partnership finances or his own money affairs. Throughout his pretrial depositions and his testimony he made repeated protestations of ignorance
about his financial affairs, referring the questioner to his accountant, Gardner, for more specific information. Gardner, a long-time friend of defendant, and his accountant without fee for some 20 years, apparently had absolute control of the books and records of the partnership. The testimony indicated that these records might not be entirely accurate, but that aside, inspection of the partnership books by one Dwyer, a thoroughly qualified public accountant and former Internal Revenue agent, led him to conclude that the books did not accurately and truly reflect defendant's income. When Dwyer asked for records which would show that income, none was produced. He could not determine defendant's interest in joint construction ventures undertaken by the partnership with other companies, nor could he determine his net worth.
Although the partnership books showed a balance of $66,230.55 in defendant's drawing account at the end of 1957, the records failed to reveal that he actually received any money. Nor does it appear that he received any money from the balance of his capital account for that year, amounting to $77,750.99. Defendant's 1958 drawing account was charged with payments of $45,037.17 made on his behalf, and the balance available to him at the end of the year was $31,420.06. In his capital account he received $39,485.61 as his share of profits; the balance at the end of 1958 was $77,952.65. As in 1957, there is no record of his ever receiving any money from these two accounts in 1958. The drawing account at the close of 1959 showed a balance of $54,674.81 which defendant did not use. The balance in his capital account increased to $132,627.43, more than that of any partner.
It was Dwyer's opinion, based on his examination of the books, that defendant, who in 1958 and 1959 did not receive any substantial sum from the partnership -- even to reimburse him for his expenses in the firm -- was getting his money from an undisclosed source. Defendant's spending habits and level of living soundly support that conclusion.
Although the tax returns which Gardner prepared for defendant would indicate that his income averaged $28,563.68 after taxes in the period from 1956 through 1960, it is clear beyond peradventure that he lived on a much more expensive scale. He always dealt in cash, and had no record of his personal expenses. One known expense, however, is his complete support of a Patricia Campion, with whom he became acquainted in 1955. His intimate relation with her continued up to and through the time he abandoned plaintiff, and persisted until the very time of the hearings. He paid all her expenses, moved her from New York City to an apartment in New Jersey, wined and dined her, bought her clothes and a Thunderbird car, and took her on trips. It is clear that Miss Campion had no other visible source of substantial income than defendant. It is she who undoubtedly brought an end to what seems to have been a happy marriage.
We have carefully considered plaintiff's needs, defendant's means, their standard of living before the abandonment, and all the elements which should enter into a determination of separate maintenance, as detailed in Turi v. Turi , 34 N.J. Super. 313, 322-323 (App. Div. 1955), where we reviewed the authorities. Although the trial judge made particular mention of what was said in that case as well as Bonanno v. Bonanno , 4 N.J. 268 (1950), and Martindell v. Martindell , 21 N.J. 341 (1956), and attempted to fix separate maintenance by balancing many of the elements in the proofs we have mentioned, we consider his award for plaintiff's support and maintenance to be inadequate. Under the Chancery Division judgment she will have $175 for her own needs, plus $50 for the son, a total of $225 weekly. It must be recalled that defendant had been giving her $250 a week before the abandonment, in addition to ...