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Lynn v. Lynn

Decided: October 25, 1977.

MARILYN LYNN, PLAINTIFF,
v.
ROBERT LYNN, DEFENDANT



Imbriani, J.c.c.

Imbriani

This matrimonial case presents two issues. First, should an adulterous wife be awarded alimony? Second, may a father voluntarily reduce his income and thereby diminish his alimony and child support obligations?

The parties separated April 6, 1975. On December 12, 1975 the wife filed a complaint for separate maintenance seeking support for herself and three children, who are all in her custody and presently 12, 10 and 8 years of age. The husband filed a countersuit for divorce on the grounds of adultery. She then filed an amended complaint seeking divorce, alleging his desertion and adultery.

The husband, age 43, is a medical doctor who specialized in hematology oncology, i.e. , the practice of treating those afflicted with cancer. His practice was very lucrative. In 1974 and 1975 his net income was $80,000, increasing to $113,000 in 1976. On July 1, 1977, while this divorce action was pending, he sold his practice to accept a full-time, three-year residency in psychiatry at St. Luke's Hospital in New York City. His salary and sole income for the next three years will be $17,000.

The husband testified that his practice, while very lucrative, was depressing and drained him both psychologically and emotionally. All of his patients suffered from terminal illnesses; most lived for less than five years. He described his emotional trauma in communicating with his patients

and their loved ones. Many relatives wrote him notes of appreciation after the passing of his patient. While touching, they only increased his distress and depression. He viewed himself as being nothing more than a "money making machine" who merely extended the lives of his patients for a few years. He said he was denied the satisfaction enjoyed by others in his profession of being able to cure or at least stabilize the ills of their patients.

He needed and sought solace. He said his wife could not or would not understand his problems. She reveled in their wealth by spending lavishly. Yet, in spite of such substantial income, the parties had virtually no savings, other than the proceeds from the sale of the marital home and his medical practice.

The wife admitted to many acts of adultery, commencing within "a few months" after her husband left the marital residence; many occurred in the marital home which her husband was maintaining pursuant to pendete lite orders. Once her child entered her bedroom and saw her in bed with another man.

This court finds that the husband deserted his wife and that she committed adultery. A dual divorce is granted to both parties upon those grounds. The wife did not prove by a preponderance of the evidence that the husband also committed adultery.

The first question is whether alimony should be granted an adulterous wife?

There is no statute mandating denial of alimony to one who has committed a matrimonial wrong. But it may be considered.

In all actions for divorce other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just. [ N.J.S.A. 2A:34-23]

Yet, the usual practice in New Jersey has been to allow alimony to a spouse in spite of her having committed a marital

offense. Note Altbrandt v. Altbrandt , 129 N.J. Super. 235 (Ch. Div. 1974). Consequently, the matrimonial bar was taken aback by Mahne v. Mahne , 147 N.J. Super. 326 (App. Div. 1977), certif. den., July 12, 1977, when that court cited with approval 24 Am. Jur. 2d, Divorce and Separation , ยง 622 at 744, that it is "an almost universal rule that permanent alimony will be denied to a wife who is guilty of adultery" and set aside a provision in a judgment of divorce granting alimony to an adulterous wife. It was not clear whether that holding applied to all cases where the wife committed any matrimonial offense, or only where the offense was adultery, or only where the offense was an "outrageous" adultery. Some clarification soon arrived when Nochenson ...


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