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Grayer v. Grayer

Decided: February 23, 1977.


Fritz, Ard and Pressler. The opinion of the court was delivered by Pressler, J.A.D.


In this matrimonial action a judgment of divorce was entered in favor of each of the parties against the other, dissolving their 6 1/2-year marriage on the ground of a separation exceeding 18 months. Plaintiff wife appeals from those portions of the final judgment dealing with alimony, child support and equitable distribution.

At the time of the marriage in December 1968 defendant husband, a member of the bar of this State, was a widower with two young children. A child of this marriage was born several years later. The apparent cause of the marital discord, which culminated in defendant's moving from the marital residence with the two children of his prior marriage early in 1973, was his dissatisfaction with the manner in which plaintiff was raising those children and his apparent belief that she treated them unacceptably disparately from the way she handled her own child.

The action had, in fact, been commenced by the wife's complaint seeking divorce on the ground of desertion, responded to by the husband's counterclaim seeking a divorce on the ground of cruelty. It was not until the end of the fifth day of trial that both parties sought and obtained leave to amend their respective pleadings in order to seek their respective divorces solely on the 18-month separation ground, not previously pleaded by either. Accordingly, much of the trial had been devoted to the grounds of divorce originally pleaded. Those proofs, to a large extent, are not relevant to the exclusively financial issues now before us, namely, the wife's contentions that the alimony allowed her was inadequate under all the circumstances, that the support allowed for the child of the marriage who remained in her custody was inadequate under all the circumstances, and that the equitable distribution judgment was based both on an improper

valuation of the marital assets and on the allocation to her of an inadequate share thereof.

Our careful review of this voluminous record persuades us that the findings of the trial judge did not constitute an adequate basis for his financial determinations and are, moreover, insufficient to enable us, by an exercise of original jurisdiction, to modify them.

There was substantial dispute below both as to defendant's actual income and the identity and valuation of the marital assets subject to distribution. As to income, the judge made no specific findings with respect thereto, noting only, in dealing with the question of alimony and child support, that he was taking into account

The factors so enumerated are all obviously relevant and significant. The problem, however, is that a mere recitation of these factors does not give them content. Consequently, we do not know what the judge concluded that defendant's income actually was or what the needs of the parties and the children actually were. This alone would justify, if not mandate, a reversal. As we said in Reiser v. Simon , 63 N.J. Super. 297 (App. Div. 1960):

Based simply on the enumeration of factors, the judge awarded plaintiff alimony in the amount of $150 a week and child support in the amount of $75 a week, sums we are

satisfied are considerably less than the voluntary alimony and support defendant was furnishing between the time of the parties' actual separation and the conclusion of the trial. We note in passing that there was no pendente lite order, and this for the obvious reason that the parties were able to work out a pendente lite arrangement to their mutual satisfaction. While that arrangement is hardly binding on the parties, it is not irrelevant either as to the question of defendant's ability or the question of plaintiff's needs and standard of living and those of the child in her custody.

Defendant practices law by way of a professional corporation of which he is a half-owner. The trial started in March 1975 and prior to the completion of the accounting work preparatory to the filing of the 1974 income tax return of either the defendant personally or the professional corporation. The parties therefore relied on defendant's 1973 reported income, defendant not disputing the fact that his 1974 income was approximately the same as it had been the year before. In 1973 defendant reported salary from the professional corporation of almost $49,000 and interest and dividend income from various investments in the amount of $4,400. As against that gross, his federal income tax liability and FICA contributions were approximately $11,000. In addition to this net of approximately $42,000, he receives on behalf of the two children of his first marriage Social Security survivor benefits (not, of course, subject to tax), in the amount of approximately $4,000. He thus has a basic spendable income for himself and the two children of the first marriage of some $46,000. There was, moreover, considerable testimony from both parties regarding valuable fringe benefits enjoyed by the husband by virtue of his ...

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