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Tolvo v. Tolvo

Decided: November 7, 1974.

ROCCO DI TOLVO, PLAINTIFF-APPELLANT,
v.
BERNADETTE DI TOLVO, DEFENDANT-RESPONDENT



Carton, Crane and Kole. The opinion of the court was delivered by Kole, J.A.D.

Kole

Plaintiff husband was granted a no fault divorce by reason of 18 months separation, by judgment of May 24, 1973. He was ordered to pay $81 a week for alimony and support of his children, as follows: $21 a week for alimony and $20 a week for each of three children, or an aggregate of $60 a week for the three children. The payments were to be made through the probation department of the county. Only two of the provisions of the judgment need be referred to in order to determine this appeal.

The judgment provided that, in addition to the support and alimony specifically awarded, the husband shall pay 50% of his net salary raises to defendant wife as additional alimony and shall advise the probation department every six months of his net salary raises, if any. If further awarded the wife 20% of the net recovery, if any, received by the husband by reason of a personal injury action that had been instituted against third parties. The husband had sustained

such injuries in an automobile accident while the parties were married. Prior to the filing of the divorce complaint both spouses had instituted a negligence action against the claimed tortfeasors in the automobile accident matter. The husband sued for damages for personal injury, medical expenses, loss of earnings and property damage. His wife joined in the action to recover for loss of her husband's services and consortium.

The tort litigation was settled for $7,500 after the judgment of divorce was entered. The wife consented to the settlement. After a hearing before a Law Division judge, that court allocated the $7,500 settlement, in the presence of counsel for both husband and wife, in such manner that 6 1/2% of the $7,500 was allocated to the wife for her per quod claim, with the balance being allocated to the husband.

Plaintiff husband appeals, first, from the part of the judgment which automatically increases the alimony award to the wife by one-half of any pay increase he receives. We conclude that the court erred in ordering alimony to be increased in this fashion.

Alimony is an allowance in periodic installments and takes into account many factors other than the amount of money earned or to be earned by the husband. Painter v. Painter, 65 N.J. 196, 213 (1974); Chalmers v. Chalmers, 65 N.J. 186, 192 (1974); Rothman v. Rothman, 65 N.J. 219, 229 (1974); Capodanno v. Capodanno, 58 N.J. 113, 118-119 (1971); Greenberg v. Greenberg, 126 N.J. Super. 96, 99-100 (App. Div. 1973). Orders for alimony or support operate for the present and may always be altered or modified upon a change of circumstances, in which a salary increase of the husband may be only one factor. Chalmers v. Chalmers, supra; Bartok v. Bartok, 52 N.J. Super. 266 (App. Div. 1958); Hallberg v. Hallberg, 113 N.J. Super. 205 (App. Div. 1971); Turi v. Turi, 34 N.J. Super. 313, 323 (App. Div. 1955); Testut v. Testut, 32 N.J. Super. 95 (App. Div. 1954), 34 N.J. Super. 95 (App. Div. 1955).

In effect, what the court did was to make an automatic percentage distribution of the husband's increase in future earnings by way of an equivalent increase in alimony. It thus confused the concept of equitable distribution with that of alimony and support, leaving no room for the usual proceeding involving a modification of an alimony award, which requires an application and a court hearing before the change is made. The effect of this part of the court's judgment is to authorize the probation department to amend the judgment as to alimony without court approval when the department has evidence of an increase in the husband's salary. Cf. Plath v. Plath, 99 N.J. Super. 394 (App. Div. 1968). The advance determination by the court of an automatic increase in alimony is contrary to established principles relating to alimony and the modification thereof. Moreover, it makes it difficult, if not impossible, for the court to enforce such an increase in later proceedings in aid of litigants' rights under R. 4:79-9.

With respect to alimony and support, the appropriate procedure is for the court to establish a fixed dollar award. That amount is subject to modification upward or downward upon application of either party to the court, either directly or through the probation department, when changed circumstances are established. The requirement in the judgment that the husband report his earnings to the probation department, however, is unassailable. It gives that department, as well as the wife, the information necessary to determine whether and when a subsequent application for modification should be made. We note in this case that a consent order was entered on March 27, 1974 amending the judgment to delete $20 a week for the support of one of the children who left to reside with his father.

Plaintiff husband also appeals from that portion of the judgment which awards defendant wife 20% of the recovery in the negligence action. We have concluded that the judgment in this respect ...


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