Judgment of divorce incorporated a settlement agreement awarding alimony, child support and amortization, taxes and interest on the marital home where defendant was to reside with the parties' child until graduation from high school.
Subsequently a married man moved into the marital home. Plaintiff made a motion to eliminate alimony and sell the home. Defendant cross-motioned for specific performance. Testimony was taken. At the hearing it was admitted that the paramour lived with defendant for several months and while the child was in the house, that he and defendant engaged in sexual intercourse, that he made no payment for
room or board and that he moved out after the filing of the notice of motion.
The question is: Is it consistent with the purpose of alimony as defined by our statutes and cases, with justice and with public policy and morality for the husband to continue to pay alimony under these circumstances?
Alimony is the periodic allowance from the husband's income payable to the former wife for her maintenance, as fixed from time to time by the court according to the varying circumstances of the parties. Herman v. Herman, 17 N.J. Misc. 127, 5 A.2d 768 (Ch. 1939). The distinct objective of alimony is the proper support of the wife, and the wife is not entitled to have more from the husband. O'Neill v. O'Neill, 18 N.J. Misc. 82, 11 A.2d 128 (Ch. 1940). Alimony is not intended to punish or reward a spouse. Turi v. Turi, 34 N.J. Super. 313 (App. Div. 1955).
In our State pertinent law was set forth in Suozzo v. Suozzo, 16 N.J. Misc. 475, 1 A.2d 930 (Ch. 1938), which held that post-marital unchastity by an ex-wife is not automatically a bar to her right to alimony. She does not owe a duty of chastity to her ex-husband, nor he to her. However, the ex-husband is not required, as the O'Neill and Herman cases make plain, to pay for the support of one who fornicates or commits adultery with her. Thus, under Suozzo the exhusband may realize a modification in the amount of alimony. Cf. Grossman v. Grossman, 128 N.J. Super. 193 (Ch. Div. 1974).
Other jurisdictions are divided as to whether gross misconduct by the ex-wife after entry of judgment may in itself justify a reduction or termination of alimony. Compare Stanfield v. Stanfield, 22 Okl. 574, 98 P. 334 (Sup. Ct. 1908); Cariens v. Cariens, 50 W. Va. 113, 40 S.E. 335 (Sup. Ct. 1901); Lott v. Lott, 213 Ga. 559, 100 S.E. 2d 170 (Sup. Ct. 1959), and Bowman v. Bowman, 163 Neb. 336, 79 N.W. 2d 554 (Sup. Ct. 1956) (holding no); with Coggins v. Coggins, 289 Ky. 570, 159 S.W. 2d 4 (Ct. App. 1942); Martens v. Martens, 211 Minn. 369, 1 N.W. 2d 356 (Sup.
Ct. 1941); Rubisoff v. Rubisoff, 242 Miss. 225, 133 So. 2d 534 (Sup. Ct. 1961); Rand v. Rand, 56 Misc. 2d 997, 290 N.Y.S. 2d 795 (Family Ct. 1968), and Weber v. Weber, 153 Wis. 132, 140 N.W. 1052 (Sup. Ct. 1913) (holding yes).
The rationale underlying the latter view is that it is unconscionable to compel a husband by his daily labor to support the divorced wife in idleness and immorality. Reasons of justice justify the court in such a case in exercising its general chancery powers, to modify or revoke its former order. Cole v. Cole, 142 Ill. 19, 31 N.E. 109 (Sup. Ct. 1892). The rationale has great force.
The fact that immoral conduct occurs in the home where child or children are present must also be considered. Gotthelf v. Gotthelf, 38 Ariz. 369, 300 P. 186 (Sup. Ct. 1931); Benjamin v. Benjamin, 78 Fla. 14, 82 So. 597 (Sup. Ct. 1919); Otani v. Otani, 29 Hawaii, 866 (Sup. Ct. 1927); ...