Fritz, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
By dual judgment of divorce entered on June 29, 1973, the marriage of Bernard and Joyce Garlinger was dissolved. Incorporated in the judgment was the agreement of the parties with respect to, among other things, custody and support of the infant children of the marriage, visitation rights, alimony and the sale of the marital residence. Pertinent to this appeal is the provision that the husband should pay to defendant, until such time as she remarried, the sum of $125 a week.
In January 1974, alleging that defendant "has moved her boy friend into the former residence and is living with him without benefit of wedlock," plaintiff obtained an order directing defendant to show cause why an order should not be entered (1) transferring custody of the infant children to him, (2) compelling her to remove herself from the marital residence, (3) requiring the immediate sale of the residence and the division of the net proceeds, and (4) terminating all alimony payments.
Following a hearing the trial judge rendered an opinion, reported at 129 N.J. Super. 37 (1974), granting plaintiff a measure of relief. It was implemented by an order dated
July 11, 1974, which modified the divorce judgment by (1) suspending all support for defendant, "effective the first week of November, 1973, and until further order of the court"; (2) ordering the sale of the marital premises forthwith, instead of no later than July 31, 1975, as provided in the judgment, and (3) directing the Essex County Probation Department to investigate and submit a report on the well-being of the minor child, Sari. Defendant's motion for the enforcement of litigant's rights (the making of which is not disclosed in the record) was denied. She appeals.
Since the custody issue was not raised in this appeal, we need not concern ourselves with it, except to observe that the two children are now, respectively, 18 and 19 years of age. As for the disposition of the marital residence, we were informed by counsel at oral argument that the matter is moot. Thus, the scope of the appeal is limited to the suspension of the alimony payments.
The facts relating to this issue are essentially undisputed. Mrs. Garlinger admitted she had a paramour whom she intended to marry after he obtained a divorce from his spouse. It was stipulated that they had lived together in the marital residence and had sexual relations for a period of approximately two months prior to the filing of defendant's motion in January 1974. There was further evidence, not denied, that the paramour was also with defendant in her home late in February and early in March of that year. Plaintiff's counsel acknowledged that he had no proof they lived together thereafter or that the paramour was supporting defendant. His position, nevertheless, was that the illicit relationship was sufficient to negate plaintiff's obligation to pay alimony.
Mrs. Garlinger testified, as did the paramour, that, except for an occasional gift or taking her out to dinner, she received no support from him in any way, but she conceded that he had not bought food or paid any of the bills while living in her home. Her counsel argued that the alimony provision in the judgment had been agreed upon by the parties and constituted a contract, and no change of circumstances
had occurred to warrant the court's taking any action to modify or amend the judgment.
The issue, as posed by the trial judge, was whether, on these facts, it was "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." 129 N.J. Super. at 39. He held it was not, stating that "gross misconduct by the ex-wife after entry of judgment may in itself justify a reduction or termination of alimony."
There are decisions in other jurisdictions which support the stand taken by the trial judge here. The leading exponent of that concept is Weber v. Weber , 153 Wis. 132, 140 N.W. 1052 (Sup. Ct. 1913), in which the court said that it is not in consonance with the judicial policy of the State to hold that subsequent misconduct of a former wife should not be considered in determining how much the former husband should continue to contribute to her support, and that if the wife chooses "a life of shame and dishonor," the court may make such misconduct a ground for cutting off all alimony. See also, Grant v. Grant , 52 Cal. App. 2d 359, 126 P. 2d 130 (D. Ct. App. 1942); Harper v. Murray , 184 Cal. 290, 193 P. 576 (Sup. Ct. 1920); Coggins v. Coggins , 288 Ky. 570, 159 S.W. 2d 4 (Ct. App. 1942); Martens v. Martens , 211 Minn. 369, 1 N.W. 2d 356 (Sup. Ct. 1941); Wilhelm v. Wilhelm , 201 Minn. 462, 276 N.W. 804 (Sup. Ct. 1937); Lindbloom v. Lindbloom , 180 Minn. 33, 230 N.W. 117 (Sup. Ct. 1930); Haritos v. Haritos , 185 Wis. ...