McKenzie, J.c.c., Temporarily Assigned.
Plaintiff obtained a judgment of divorce from defendant on December 22, 1972. Included therein was an order that defendant pay the sum of $150 a week to the Union County Probation Office: $50 for support of the wife, and $50 allocated to each of the two children of the marriage. Defendant seeks to modify that portion of the order pertaining to alimony, claiming plaintiff is living with another man in the former marital home. The court at a plenary hearing, at which plaintiff failed to appear, found from the evidence that defendant's allegations were sustained by the evidence. Defendant maintains that the cohabitation of his former wife and another man is a change of circumstances entitling him to a cessation of alimony payments.
He relies upon the theory that, in determining the amount of an alimony award, the court should consider not only the needs of the parties and their respective abilities to provide for those needs, but also the interests of the State. See Turi v. Turi, 34 N.J. Super. 313 (App. Div. 1955).
Defendant also urges that under the circumstances it would be unconscionable to enforce the order for alimony payments. He cites Edelman v. Edelman, 124 N.J. Super. 198
(Ch. Div. 1973), where a former husband sought modification based on a similar change of circumstances. There, in addition to engaging in a meretricious relationship with another man, it also appears that the wife had substantial income of her own, whereas the husband's income had been reduced to the point where his gross earnings were less than the ordered alimony payments. The court, referring to the difficulty in applying the tests of a substantial change of circumstances and unconscionability under the cases of Schiff v. Schiff, 116 N.J. Super. 546 (App. Div. 1971), certif. den. 60 N.J. 139 (1972), and Berkowitz v. Berkowitz, 55 N.J. 564 (1970), held in Edelman that these factors had been established under the facts in that case, and granted modification in favor of the husband.
Orders of alimony may be revised and altered by the court as circumstances may require. N.J.S.A. 2A:34-23. An alimony award is thus subject to continuing review and its enforcement is within the sound discretion of the court. Martindell v. Martindell, 21 N.J. 341 (1956). In the case at bar defendant alleges changed circumstances as a ground for modification of the original order, in that plaintiff is living with a paramour. He (defendant) does not itemize his expenses or income or recite other economic factors as bearing on the issue. Compare Edelman v. Edelman, supra. In effect, the sole ground for relief is his former wife's relationship with another man. In Suozzo v. Suozzo, 16 N.J. Misc. 475, 1 A.2d 930 (Ch. 1938), the court stated:
A more careful consideration of this subject now leads me to the conclusion that as a matter of law, if not logically, unchastity of a former wife is not a defense to her right to alimony after absolute divorce, nor justification for retracting an award previously made to her under our statute. It is at most a factor that in a proper case may be considered as bearing upon the amount of, and the necessity for the allowance. [at 477]
The rationale for the above rule, adopted in the majority of jurisdictions, is that the wife is not responsible to her former
husband for her conduct. See Christiano v. Christiano, 131 Conn. 589 (Sup. Ct. Err. 1945), and cases cited therein.
To the extent, therefore, that defendant would have the court "punish" plaintiff for her misconduct, his position is not well based. Compare Greenberg v. Greenberg, 126 N.J. Super. 96 (Ch. Div. 1974).
The real question before the court is whether defendant has established any other change of circumstances, other than the misconduct of the plaintiff, which would entitle him to relief. Although he presents no figures which in themselves indicate a change in the financial circumstances of the parties, may the court infer from the relationship between plaintiff and another man with whom she is living, that she no longer has need for all or part of the alimony payments awarded to her when she was living alone in the home with the children of the marriage? In Hausman v. Dept. of Institutions and Agencies, 64 N.J. 202 (1974), the court dealt with the statutory computation of the Aid to Dependent Children program. The court held that ...