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Capodanno v. Capodanno

Decided: April 5, 1971.

M. LILLEY CAPODANNO, PLAINTIFF-APPELLANT,
v.
ROCCO T. CAPODANNO, DEFENDANT-RESPONDENT



For reversal and remandment -- Chief Justice Weintraub and Justices Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the Court was delivered by Proctor, J.

Proctor

[58 NJ Page 116] The primary issue on this appeal is the propriety of the Chancery Division's denial of separate maintenance to the plaintiff M. Lilley Capodanno on the ground that her earnings were sufficient to meet her needs. The Appellate Division in an unreported opinion affirmed that part of the judgment of the trial court denying such relief and we granted plaintiff's petition for certification. 57 N.J. 134 (1970).*fn1

Although the case consumed a great deal of time and the record is voluminous, the facts pertinent to this appeal are relatively simple. The Capodannos were married in 1938. At the time of the hearing Mr. Capodanno was sixty-three years old and his wife was fifty-six. They lived together in the matrimonial home in West Caldwell with their two sons, both of whom had attained majority. In October of 1964, Mrs. Capodanno left the home. At the trial Mr. Capodanno conceded that his wife was compelled to leave because of his extreme cruelty. Thus, the major issue before the trial court was the amount, if any, of separate maintenance to be awarded.

In 1956 Mrs. Capodanno began teaching school. She had had some experience in teaching during the early years of her marriage, and wished to return to the profession to regain "a measure of personal dignity" she had lost because of her husband's alleged parsimony. Mr. Capodanno gave his wife permission to teach and agreed to continue paying all household expenses and other incidentals even down to paying for his wife's lunches. His only reservation was that his wife's earnings not increase his tax burden on their joint income tax return. Mrs. Capodanno was allowed to use her earnings for clothing, vacations, various personal incidentals or for anything else she might want. During the years she was teaching and living in the marital home, she took extended tours abroad which consumed large amounts of her earnings.

The trial court found that at the time of the hearing Mrs. Capodanno's gross income from her salary was $11,675.00 and after taxes and deductions, she would have $8,864 usable income. We accept these findings. The trial court did not make any findings regarding Mr. Capodanno's income. It regarded any inquiry into his income as irrelevant since it thought that whatever his exact amount of earnings, he had ample means to meet any support order the court might make. Our examination of the record convinces us that his yearly income was in the area of $35,000. At the

conclusion of the trial, the court determined that Mrs. Capodanno was not entitled to any support from her husband because her own income was sufficient to meet her "reasonable needs." For the reasons which follow, we think the court erred.

It is well established that a husband has a common law duty to support his wife. This duty is a continuing one although strained financial circumstances may excuse a present failure to support. Bonanno v. Bonanno, 4 N.J. 268, 273 (1950). A husband must support his wife according to her needs, but "needs" are not measured merely by the amount of money necessary to maintain a wife at a level of subsistence or even reasonable comfort. A wife's "needs" will vary depending upon the case, for "needs" contemplate the amount of money necessary to maintain a wife in a manner as near commensurate as possible with her former status. Martindell v. Martindell, 21 N.J. 341, 352 (1956); Bonanno v. Bonanno, supra at 274; Dietrick v. Dietrick, 88 N.J. Eq. 560, 561 (E. & A. 1918). In determining a wife's needs, a court should take into account the physical condition and social position of the parties, the husband's property and income, and the wife's property and income, if any. Dietrick v. Dietrick, supra at 561.

In the present case, we think the trial court misconstrued what is meant by "needs." It took into account only the fact that the wife was able to support herself by her own means at a level of moderate comfort. It neglected to consider that she had these same means available when she lived with her husband at which time her husband maintained the home and provided for food, automobile maintenance, drugs and other expenses. Necessarily, the loss of these benefits which she must now provide for out of her own earnings has diminished her resources. As a result, she has been forced to give up her vacation trips and deplete her savings since the separation. Yet, as we have said, she is entitled to live at a standard consistent with her former pattern of living. Dietrick v. Dietrick, supra. While her

earnings may be sufficient to provide for her minimum needs, they are not sufficient to provide for her needs as measured by this standard.

The trial court was satisfied as are we that Mr. Capodanno can afford to pay reasonable support. He has ample means.

The next question to be answered is how much of an allowance Mrs. Capodanno should receive. She contends that she should be given one-third of her husband's income, see Dietrick v. Dietrick, supra; Hebble v. Hebble, 99 N.J. Eq. 53, 56 (Ch. 1925), aff'd 99 N.J. Eq. 885 (E. & A. 1926), and that her earnings should be of no concern to the court. She urges that the Married Women's Act, N.J.S.A. 37:2-1 et seq., declares that a woman's earnings shall belong to her as if she were a single woman and that this bars us from taking her income into consideration. We see no merit to the argument. The purpose of the Married Women's Act was to secure equality for women and not special privileges. Today when women have joined the labor force in large numbers and are vying for increased independence, it would be anomalous to ignore their income in determining the proper amount for support payments. Accordingly, whatever validity the ...


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