Gaynor, J.c.c., Temporarily Assigned.
This is plaintiff's motion for summary judgment seeking an award by this court of the $8,000 allegedly due from defendant under the terms of a separation agreement. The circumstances involved present a variation on the theme that a divorced wife's extramarital cohabitation is cause for the modification or termination of alimony.
The facts giving rise to the alleged obligation are not in dispute. Plaintiff and defendant entered into a separation agreement in May 1971 which, by its terms, survived the judgment of divorce entered in February 1973. Under the agreement plaintiff was to receive $2,000 a year from defendant until the time of any final divorce decree. At
such time the agreement provided that plaintiff would have an option, to be exercised within 30 days of the date of said decree, by which she could elect either to continue to receive $2,000 annually until she should remarry or to then receive a gross sum payment of $8,000 in lieu of all future alimony and support obligation. There was some dispute regarding plaintiff's notice to exercise the option to receive the gross sum payment, but it is now conceded that timely notice was proffered. However, the payment opted for was never made by defendant and plaintiff brought suit in the Law Division to collect the sum. The case was subsequently transferred to the Chancery Division inasmuch as it is a matrimonial action, and thereafter plaintiff filed the present motion.
This motion was submitted to the court on the pleadings, affidavits and briefs of the parties. The complaint alleges the making of the agreement, the annual payments made by defendant, the entry of a judgment of divorce, the exercise by plaintiff of her option for the lump sum payment and the failure of defendant to make said payment. The answer generally admits the allegations of the complaint but denies liability for the payment and also sets forth the separate defense that the contractual obligation was terminated because of plaintiff's cohabitation with paramours since the separation of the parties. An affidavit of defendant also contains statements concerning such cohabitation by plaintiff. No affidavit of plaintiff has been submitted.
Defendant contends that this motion should be denied because a substantial issue of fact exists with respect to plaintiff's alleged engagement in various meretricious relationships. Defendant asserts that proof of such relationships, accompanied by a showing that either the amount due will be used for the support of plaintiff's paramours or that she receives support from those with whom she cohabits, could act as an equitable bar to recovery. Defendant further argues that enforcement of the agreement, under such circumstances, would be contrary to public policy.
Plaintiff asserts that this court should specifically enforce the agreement because, by its terms, the parties granted each other license to live apart "as though unmarried" and to engage in any activity without interference. Presumably plaintiff believes this license encompasses extramarital sexual activity. Plaintiff also maintains that post-divorce unchastity does not terminate an agreement but might, under certain circumstances, provide a basis for modification. Since no petition for a modification was submitted by defendant, plaintiff believes this court to be without jurisdiction to modify the agreement in question.
Dealing with plaintiff's second contention first, it is noted that a matter involving marital separation agreements must be brought in the Chancery Division, since traditionally contracts between husband and wife were not enforceable at law. Cohen v. Cohen , 121 N.J. Eq. 299 (Ch. 1936). We therefore do not adhere to normal contract principles in regard to enforcement. In accordance with general equitable principles, such agreements will be enforced only to the extent that the effect of such enforcement would not prove inequitable or unconscionable. Schiff v. Schiff , 116 N.J. Super. 546 (App. Div. 1971). Thus, although defendant's request is for termination of the agreement, such termination is only the end of a continuum composed of degrees of enforceability, all of which are always available to a court of equity. Defendant has, by seeking a termination, impliedly requested this court to determine where on the spectrum of enforceability this agreement falls. The fact that no application for modification was specifically made in no way precludes us from examining all the facts relevant to the exercise of our equitable power.
The early case of Suozzo v. Suozzo , 16 N.J. Misc. 475, 1 A.2d 930 (Ch. 1938), makes clear that a former wife owes no duty of chastity to her former husband. In that case, the Court held that the obligation of support is absolute, not reciprocal. The application of that principle led the court to conclude that a woman's adultery subsequent
to a divorce could not successfully be interposed by the husband as a defense to the enforcement of a permanent alimony order, or that adultery was not change enough in the circumstances to mandate a modification of an existing court order. This premise has also been applied in a series of cases in which the adultery was engaged in subsequent to the execution by the parties of a separation agreement. Thomas v. Thomas , 104 N.J. Eq. 607 (E. & A. 1929); Equitable Life Assur. Soc. v. Huster , 75 N.J. Super. 492 (App. Div. 1962); Cohen v. Cohen , 121 N.J. Eq. 299 (Ch. 1936). See Sabbarese v. Sabbarese , 104 N.J. Eq. 600 (Ch. Div. 1929). In these cases the court concluded, in essence, that subsequent unchastity was an event sufficiently foreseeable so that the husband could have expressly made support payments contingent upon the continued chastity of his former wife if such was to be the ...