For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Proctor, J.
The plaintiff, Annabelle Khalaf, brought an action for separate maintenance and child support in the Chancery Division. At the trial, the defendant James Khalaf conceded that he abandoned his wife. Accordingly, the only issue was the amount of separate maintenance and child support which the defendant should be required to pay. After hearing testimony, the Chancery Division ordered the defendant to pay $65 per week to the plaintiff for her support and $25 per week for the support of James, one of two sons of the marriage. The other son, Gregory, was living with his father. The court also ordered the defendant to pay the real estate taxes and insurance on the family residence in Maplewood and on the summer home in Normandy Beach. Plaintiff appealed contending that the amount of support was insufficient. The Appellate Division in an unreported opinion affirmed the judgment of the trial court. On plaintiff's motion, we granted certification. 57 N.J. 137 (1970).
The Khalafs were married in 1941. When the defendant left plaintiff in October of 1967, their son James, who elected to remain with his mother, was 18 years old and was a freshman at George Washington University. The younger son, Gregory, who was still in high school, chose to live with his father. Prior to the separation, the parties lived in an eleven room house in Maplewood, part of which was allocated to Dr. Khalaf's dental offices. They also own a small summer home in Normandy Beach. Both homes are owned by the parties as tenants by the entirety and are free and clear of mortgages. They also had two automobiles and for a time belonged to a local country club. Plaintiff was given a check for $350 at the beginning of each month for food and incidentals. Occasionally this amount was supplemented. All other expenses were charged to the defendant and paid for by him. In short, plaintiff led the kind of life which one would expect of the wife of a prosperous suburban dentist. She had no independent source of income although for several years she operated a yarn shop in Maplewood. The venture
was pursued only as a hobby and indeed lost money each year until she finally gave it up.
Dr. Khalaf's children were also brought up in the same comfortable style of living. When it came time for his son James to go to college, Dr. Khalaf encouraged him to attend. He approved James' choice of George Washington University and paid all first semester expenses.
The sole question before us is the amount of support which defendant should pay to his wife and his son James. The rule governing the computation of support and maintenance has been repeatedly stated by our courts. It is aptly summarized in Bonanno v. Bonanno, 4 N.J. 268, 274 (1950) where this Court, quoting the earlier case of Dietrick v. Dietrick, 88 N.J. Eq. 560, 561 (E. & A. 1918) said:
"The amount is not fixed solely with regard, on the one hand, to the actual needs of the wife, nor, on the other, to the husband's actual means. There should be taken into account the physical condition and social position of the parties, the husband's property and income (including what he could derive from personal attention to business), and also the separate property and income of the wife. Considering all these, and any other factors bearing upon the question, the sum is to be fixed at what the wife would have the right to expect as support, if living with her husband. Richmond v. Richmond, 2 N.J. Eq. 90; Boyce v. Boyce, 27 N.J. Eq. 433."
See also Martindell v. Martindell, 21 N.J. 341, 352 (1956); Dinnebeil v. Dinnebeil, 109 N.J. Eq. 594, 602 (E. & A. 1932); Davis v. Davis, 103 N.J. Super. 284, 291 (App. Div. 1968); Gross v. Gross, 22 N.J. Super. 407, 411 (App. Div. 1952); Nebel v. Nebel, 99 N.J. Super. 256, 264 (Ch. Div. 1968), aff'd, 103 N.J. Super. 216 (App. Div. 1968).
The first factor to be considered in determining the proper amount of support is the husband's ability to pay. In the present case it is difficult for us to determine accurately what amount of money defendant earned in 1968 when this cause was litigated. The record before us is muddled and contains only partial data for the year 1968. We are unable to use his
1967 figures to help us determine his 1968 income by way of comparison since, according to defendant, his financial records for 1967 were lost sometime after the inception of this suit. Defendant testified to his 1967 income, but in view of his evasive tactics throughout the litigation of this matter, we cannot accept his unsubstantiated word.
Turning to the year 1968, the only figures before us are those covering the first ten months. (The trial ended in November of that year.) Those figures show that the defendant deposited $32,000 in his bank between January 1 and October 31. Defendant said that this amount which was supplied by an accountant was "probably correct." Projecting this figure out to a full year, defendant would have banked $38,400 as a conservative estimate.*fn1 In addition to what he banked, defendant conceded that he applied some of the cash and checks received from patients directly to his personal expenses. These funds were never deposited and thre was no record before the trial court of how much was retained for his personal expenses. However, defendant conceded that for the first six months he did not draw on his bank account for his "personal needs." By the time of the hearing in November, he had drawn $1,200 for personal needs. These needs including clothing, ...