On motion the issue is raised whether a wife is entitled to reimbursement from her husband for one-half the mortgage payments on the marital home, which she paid out of support awarded to her in a judgment of separate maintenance (N.J.S. 2 A:34-24) and a preceding order pendente lite.
The ownership of the marital home as a tenancy by the entirety survived the judgment of separate maintenance. See Lawrence v. Lawrence, 79 N.J. Super. 25, 32-33 (App. Div. 1963); 4 Powell on Real Property (4 th ed. 1967), § 624, p. 671. Some judicial opinions have referred to the relationship of tenants by the entirety as tenants in common inter sese (Nobile v. Bartletta, 109 N.J. Eq. 119 (E. & A. 1931); Dorf v. Tuscarora Pipe Lines Co., Ltd., 48 N.J. Super. 26 (App. Div. 1957); Ross v. Ross, 35 N.J. Super. 242 (Ch. Div. 1955); Pieretti v. Seigling, 134 N.J. Eq. 105 (Ch. 1943)), but neither spouse has a right to a partition even upon a judgment of separate maintenance. See Gery v. Gery, 113 N.J. Eq. 59, 64-65 (E. & A. 1933); Eberle v. Somonek, 24 N.J. Super. 366, 374 (Ch. Div. 1953), aff'd 27 N.J. Super. 279 (App. Div. 1953).
Mr. and Mrs. Isserlis have agreed to a sale of the marital home and to a division of the net proceeds after deductions fixed by the court, including by stipulation approximately $10,000 due and owing as a support arrearage.
Mrs. Isserlis is seeking further deductions from her husband's share of the net proceeds: one-half her total payments of $14,040 towards mortgage principal and interest
and local taxes, and one-half her disbursement of $626.59 to the attorney who represented her in defense of an action to foreclose the mortgage on the marital home, which was dismissed upon her payment of the amount in default on March 20, 1964.
Mrs. Isserlis is making no claim for one-half credit for payments by her for insurance and repairs, nor is Mr. Isserlis seeking an accounting of rental income collected by his wife during several recent months when a room in the marital home was rented to a Rutgers student. Other than this small rental income, Mrs. Isserlis had no income except the support paid by her husband. She has continued to reside in the marital home at all times since the parties' initial separation.
Mrs. Isserlis filed her complaint for separate maintenance on October 11, 1963. The only child of the marriage is a daughter, then aged 20. An order for support pendente lite entered on December 23, 1963 provided that the defendant pay her support in the amount of $175 per week and pay all mortgage payments and interest and taxes on the marital home. Defendant defaulted on the mortgage payments for December 1963 and the first three months of 1964. On June 25, 1964, upon defendant's motion, plaintiff was ordered to pay mortgage, taxes and fire insurance "until the trial of this action." The support award of $175 per week was continued in the modified order pendente lite and in the judgment of separate maintenance entered on January 24, 1966. The judgment of separate maintenance failed to fix specifically the obligation to maintain the mortgage payments, despite plaintiff's motion to settle the form of judgment to include, among other things, a provision that defendant pay the mortgage on the marital home, in addition to the weekly support award. The mortgage payment, including principal, interest and local taxes, was approximately $260 per month.
After a drastic cut in Mr. Isserlis's income, on September 12, 1966 the support award was modified to $125 a week
and he was ordered to convey his right, title and interest in the marital home to Mrs. Isserlis, his equity to be applied to the support arrearage. Although at that time the arrearage may have exceeded the defendant's equity, concededly one-half the net appraised value today is higher by several thousand dollars than the current arrearage.
Alimony to a divorced wife or support to a wife entitled to separate maintenance enforces the husband's obligation to provide for her shelter, as well as for her other basic needs. That obligation is met by an allowance for rental payments (Paragian v. Paragian, 48 N.J. Super. 207, 214 (J. & D.R. Ct. 1957); see McLeod v. McLeod, 131 N.J. Eq. 44, 47-49 (E. & A. 1942); cf. D. v. D., 56 N.J. Super. 357, 360 (App. Div. 1959)), or ...