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Painter v. Painter

Decided: June 5, 1974.


For remandment -- Chief Justice Hughes, and Justices Hall, Mountain, Sullivan, Pashman and Clifford. Opposed -- None. The opinion of the Court was delivered by Mountain, J.


[65 NJ Page 201] The parties to this suit were divorced by judgment entered March 14, 1972 upon the ground, urged in defendant's counterclaim, that they had lived separate and apart for at least 18 or more consecutive months and that there was no reasonable prospect of reconciliation. N.J.S.A. 2A:34-2(d).*fn1 Thereafter, in accordance with the authority contained in N.J.S.A. 2A:34-23 -- as amended by the 1971 enactment -- the trial court made an equitable distribution of the marital property. 118 N.J. Super. 332 (Ch. Div. 1972). We granted certification, 62 N.J. 192 (1972), as we did simultaneously in several companion cases, in order to consider the questions these cases raise and that are generally presented by this important legislation.

Stephen and Joan Painter were married October 17, 1953, and lived together as husband and wife until January 23, 1967. Three children were born of the marriage and at the time of the institution of this suit, in October, 1970, they were 15, 12 and 7 years of age. They have always been, and remain, in the custody of the mother.

At the trial it was determined that the total assets of plaintiff, Stephen Painter, had a value of $230,309 and those of defendant, Joan Painter, a value of $99,709. However, in determining the value of property subject to equitable distribution pursuant to N.J.S.A. 2A:34-23, the court excluded assets which were acquired by gift or inheritance during marriage as well as property owned prior to marriage. Pursuant to this formula, the court determined the plaintiff's and defendant's assets available for distribution, as being $82,571 and $58,199, respectively. In addition, plaintiff's income in 1971 was found to have been $32,218.

The court then entered an order directing plaintiff to pay (a) alimony and support in the sum of $12,000 per year, allocated $500 per month as alimony and $166.66 per month as support for each of the three children; (b) all reasonable medical and dental care for the three children and all medical care for the defendant; (c) "twenty per cent (20%) of the difference between plaintiff's and defendant's available assets -- $4,874." (emphasis added).

The issues presented to the Court on this appeal concern both the constitutionality and the interpretation of L. 1971, c. 212. The constitutional validity of the statute is challenged upon three grounds. First, it is argued that it embraces more than one object in violation of Art. 4, sec. 7, par. 4 of our State Constitution. Secondly, it is urged that the equitable distribution portion of N.J.S.A. 2A:34-23 is void for vagueness. Finally it is claimed that the same equitable distribution clause, unless interpreted as applying prospectively only, will result in a deprivation of property without due process of law in contravention of the Fourteenth

Amendment of the Federal Constitution as well as Art. 1, par. 1 of the New Jersey Constitution. This final point is considered at length and decided in favor of constitutionality in Rothman v. Rothman, 65 N.J. 219 (1974) decided this day. We will turn to the first two of these constitutional arguments after briefly reviewing the statute under consideration.

Pursuant to L. 1967, c. 57 (as amended by L. 1968, c. 170 and L. 1969, c. 25) the Legislature created a Divorce Law Study Commission ". . . to study and review the statutes and court decisions concerning divorce and nullity of marriage and related matters . . ." L. 1967, c. 57, 144-145. In the preamble to this enactment it was noted that not since 1907 had there been any general revision of the statutes of the State relating to divorce, nullity of marriage or other phases of the law of domestic relations. Consequently, it went on to point out, except for the Blackwell Act, (L. 1923, c. 187), which added extreme cruelty as a ground for divorce, there had been no significant legislation during this period pertaining to this general subject matter, although during the same interval concepts of marriage and divorce had been drastically altered.*fn2 Legislative investigation and study were deemed essential as a necessary prerequisite to the drafting of a law that would adequately respond to the felt needs of our present day society in this area. On May 11, 1970 the Final Report of the Commission was submitted to the Governor and the Legislature. In very large part, but not entirely, the resulting statute, L. 1971, c. 212, was based upon

the proposed Divorce Reform Bill which accompanied and was made part of this Report.

The most significant changes in our matrimonial law that have resulted from the adoption of this act are the following:

1. In addition to the pre-existing statutory causes for divorce, i.e., (1) adultery, (2) desertion and (3) extreme cruelty, the act includes as additional grounds: (4) separation for at least 18 months where there is no reasonable prospect of reconciliation; (5) voluntarily induced addiction to a narcotic drug, or habitual drunkenness, for a period of 12 months; (6) institutionalization because of mental illness for a period of 24 months; (7) imprisonment of the defendant for 18 months, and (8) deviant sexual conduct voluntarily performed by the defendant without the consent of the plaintiff. N.J.S.A. 2A:34-2.

2. Obstinacy need no longer be proven in order to establish a cause of action for desertion, which now accrues after twelve months willful and continued desertion rather than after two years as had previously been the case. Id.

3. Extreme cruelty, as a ground for divorce, is now defined by statute to include "any physical or mental cruelty which endangers the safety or health of the plaintiff or makes it improper or unreasonable to expect the plaintiff to continue to cohabit with the defendant. . ." Id.

4. A plaintiff seeking a divorce on the ground of extreme cruelty may now file a complaint three months after the date of the last act of cruelty complained of, instead of being required to wait six months as was formerly the case. Id.

5. Divorce from bed and board, which may be adjudged for the same causes as divorce from the bonds of matrimony, may now be had only upon the consent of both parties. Either party may thereafter at any time apply to have such divorce converted to a divorce from the bonds of matrimony, which application shall be granted as a matter of right. N.J.S.A. 2A:34-3.

6. Recrimination, condonation and the clean hands doctrine are no longer available as defenses. N.J.S.A. 2A:34-7.

7. If both parties make out grounds for divorce, judgment may run in favor of each. Id.

8. The durational residence requirement to initiate an action for divorce, except for adultery as to which there is no such requirement, has been shortened from two years to one year. N.J.S.A. 2A:34-10.

9. Issue of an annulled marriage shall be deemed legitimate even if -- as was not heretofore the case -- the annulled marriage was a non-ceremonial, bigamous union. N.J.S.A. 2A:34-20.

10. Alimony may be awarded to either spouse. Except where the judgment for divorce is granted on the no-fault ground of separation, the court may, in awarding alimony, consider the proofs submitted in support of the ground upon which the judgment of divorce is made to rest. N.J.S.A. 2A:34-23.

11. Incident to the grant of divorce ". . . the court may make . . . [an] 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." Id.

An effort has been made, as is apparent from the Commission Report, to move away from the concept of fault on the part of one spouse as having been solely responsible for the marital breakdown, toward a recognition that in all probability each party has in some way and to some extent been to blame. One objective of the Commission was to make it possible to terminate dead marriages regardless of where the responsibility for the failure lay. Final Report, Divorce Law Study Commission 6. The Legislature accepted this recommendation and provided, as we have noted above, that separation for at least 18 months where there is no reasonable prospect of reconciliation shall be a ground for divorce. At the same time the Legislature concurred in the Commission's recommendation that fault grounds for divorce be retained,

although somewhat liberalizing the requisites for ...

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