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Greenberg v. Greenberg

Decided: December 11, 1973.

MYRNA GREENBERG, PLAINTIFF-RESPONDENT,
v.
ROBERT GREENBERG, DEFENDANT-APPELLANT



Leonard, Allcorn and Crahay. The opinion of the court was delivered by Crahay, J.A.D.

Crahay

Plaintiff Myrna Greenberg was granted a judgment of divorce grounded in defendant's extreme cruelty. She was awarded alimony at the rate of $100 a week and was granted a measure of "equitable distribution" of the parties' real and personal property. Defendant appeals from the judgment, challenging only the quantum of the weekly alimony and the equitable distribution.

N.J.S.A. 2A:34-23, as amended in 1971, includes statutory mandates anent alimony, maintenance and equitable distribution. In part provides pertinent to the issues before us:

In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage." [Emphasis added]

Our review of the record satisfies us that the trial court misconstrued -- insofar as alimony was concerned -- the operative provisions of N.J.S.A. 2A:34-23. Furthermore, its findings on "equitable distribution" do not have sufficient record support to permit them to stand. A remand is required.

On the issue of alimony the trial court, in a written opinion, concluded:

The testimony further discloses that while plaintiff was undergoing serious operative hospitalization during which she became medically addicted, defendant to her knowledge because of his boastings successfully sought relief of concupiscence in adultery.

N.J.S. 2A:34-23 provides further that this Court may also consider the proofs made in establishing the ground on which divorce sought in determining an amount of alimony that is fit, just, and reasonable. The indignity of defendant's conduct to the knowledge of his wife in her condition was so inhuman as to call on this Court to increase the projected amount of alimony under the language of the statute.

I increase the award of $75 per week to $90 per week in this regard * * *

In a letter opinion filed contemporaneously with the formal opinion, similar views were stated:

During her illness and hospitalization there is no question but that defendant committed adultery to alleviate his physical needs although I find that this was not with the consent and blessing of his wife.

It seems to me that I must consider these factors in the award of alimony. See N.J.S. 2A:34-23 (-- the Court may consider also the proofs made in establishing such ground in determining an ...


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