Polow, J.J.D.R.C. (temporarily assigned).
On this application plaintiff seeks an order reviving her right to alimony which had been discontinued upon defendant's motion to eliminate support for her "by reason of plaintiff's remarriage." Plaintiff claims her right to alimony is restored by the annulment of her second marriage.
The sequence of events is important to a fair evaluation of the issues. Plaintiff and defendant were married May 1, 1954, and thereafter resided together until January 18,
1965. Four children were born while they lived together and a fifth child of the marriage was born on August 12, 1965 after they had separated. The wife's original action against defendant Sharpe charged extreme cruelty and sought separate maintenance. The complaint was amended before trial to demand an absolute divorce. At the trial on September 29, 1966 defendant withdrew his answer, a divorce was granted and the court approved the terms of an agreement of the parties for custody, support, alimony and a property settlement.
The judgment nisi of October 26, 1966 required defendant to pay $10,000 a year in monthly installments "as and for alimony, support and maintenance for the wife and infant children of the marriage in her custody * * * until the death of either party, or her remarriage * * *." The judgment became final on January 27, 1967 and payments were made under the terms thereof until 1969.
On January 9, 1969 plaintiff participated in a ceremonial marriage to Alan Cavallaro. Within 12 days after that marriage ceremony defendant Sharpe applied for a reduction in support by elimination of alimony. His motion resulted in the May 29, 1969 order which reduced the original $10,000 annual support obligation to $6,000 per annum, retroactive to February 1, 1969. The new award was designated as support for the children only.
During the pendency of defendant's application to reduce the support payments, plaintiff had filed a complaint for annulment against Cavallaro, alleging his impotence as the basis for relief. That complaint was voluntarily dismissed by plaintiff on April 29, 1969 prior to the entry of the order which eliminated alimony. Thereafter, another complaint for annulment was filed by plaintiff against Cavallaro on June 25, 1969 seeking a permanent injunction to prevent Cavallaro from seeing plaintiff's children of her first marriage or ingratiating himself with them and "from taking any steps to enforce his purported right to custody of said children as step-father." The complaint was amended
on August 12, 1969 to demand an annulment of the Cavallaro marriage on the ground of his alleged impotence. Cavallaro did not contest and a judgment was entered on November 14, 1969 declaring that he was incurably impotent at the time of the marriage, that he had misrepresented this fact to plaintiff, that she was ignorant of the true fact and had relied upon his representation, and that upon learning the true fact she had separated herself and did not ratify the marriage. That marriage was thereupon adjudged "from the beginning a nullity, and should and shall be determined in all courts of law and equity, and in all places to be null and void * * *."
On this application we must decide whether the previous obligation of defendant Sharpe to pay alimony to his former wife, having been eliminated by order of this court following her ceremonial remarriage, was revived when the subsequent remarriage was declared a nullity.
Wife support at common law could be awarded only after a judgment of divorce a mensa et thoro , that is, after a limited or bed and board divorce equivalent to a judicial separation. The English ecclesiastical courts had provided support for wives living separate from their husbands under such decrees, courts of law having no power to act. There were no absolute divorces for most English wives until the middle of the last century except for those rich or powerful enough to obtain relief by an act of Parliament.
The rationale supporting alimony in limited or bed and board divorces was based at common law upon the husband's status as compared to that of his wife in the days of the ecclesiastical courts. The husband, after marriage, took all of his wife's personal property as well as income, rents and profits from her real estate. This naturally carried with it an obligation to support which would traditionally be provided in the family home. When the court authorized the
wife to separate and live apart from her husband because of his cruelty or adultery it was logical to require him to provide for her support. After all, he still ...