Trial Court opinion reported at 153 N.J. Super. 377 (Ch. Div. 1977). On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County.
Conford, Pressler and King. The opinion of the court was delivered by King, J.A.D.
Both parties appeal on the economic issues alone from this judgment of dual divorce granted on fault grounds. The trial judge denied alimony to the wife, Mrs. Lynn; ordered the husband, Dr. Lynn, to pay child support, and ordered equitable distribution of the marital property. The court's opinion is reported at 153 N.J. Super. 377 (Ch. Div. 1977).
The Lynns were originally married in 1958. They divorced in 1961. During this first marriage Dr. Lynn attended medical
school and interned; Mrs. Lynn taught school. In 1963 they remarried and lived together until Dr. Lynn deserted the marital home in April 1975. The Lynns had three children born of their second marriage. They were 12, 10 and 8 at the time of trial in September 1977. Dr. Lynn, age 43, had specialized in hematology-oncology. He exclusively treated patients afflicted with terminal cancer. The practice was lucrative; in 1974 and 1975 his net reported income was $80,000; in 1976 it was $110,000.
In December 1975 Mrs. Lynn filed a complaint for separate maintenance and support for herself and the three children in her custody. Dr. Lynn counterclaimed for divorce on grounds of adultery. She then amended her complaint, seeking a divorce for adultery and desertion. A pendente lite support order of $31,000 annually was entered in January 1976.
In July 1977, during the pendency of this action and before trial, Dr. Lynn sold his practice and accepted a full-time, three-year residency in psychiatry at St. Luke's Hospital in New York City. His salary during this residency is $17,000 a year. At trial Dr. Lynn testified that his lucrative practice was depressing and drained him both psychologically and emotionally. He was denied the satisfaction enjoyed by other doctors who were able to cure or at least stabilize their patients' illnesses. Dr. Lynn viewed himself as nothing more than a "money making machine" who was merely extending the lives of his patients for a few years. The trial judge found as a fact that Dr. Lynn's career change in response to his particular mid-life crisis was made in "good faith" and not to avoid his financial responsibilities to his family. Id. at 386. This finding is well-supported by the record.
The trial judge also found that Mrs. Lynn had committed, by her admission, many acts of adultery, beginning a few months after her husband deserted the marital residence. The judge found that many of these extra-marital, post-separation, sexual acts occurred in the marital home which Dr. Lynn was maintaining under the pendente lite order. In
his opinion the trial judge observed that "on at least one occasion an infant son saw something he should not have seen." Id. at 383. However, there was no contention that Mrs. Lynn was an unsuitable custodial parent, and Dr. Lynn did not challenge the award of custody to her. Dr. Lynn and his alleged paramour both asserted their testimonial privilege against self-incrimination when questioned about his alleged post-separation adultery. Dr. Lynn admitted taunting his wife with claims of his infidelity before he deserted the marital home in April 1975. He claimed that this was an argumentative device, and he denied any pre-separation adultery.
The trial judge granted a dual judgment of divorce: Mrs. Lynn's on the grounds of desertion and Dr. Lynn's on the grounds of the post-desertion adultery. The judge found that Mrs. Lynn "did not prove by a preponderance of the evidence that her husband also committed adultery." Id. at 380.
We first consider Mrs. Lynn's cross-appeal from the denial of alimony on the ground of post-desertion adultery. There was no proof that Mrs. Lynn committed adulterous acts before Dr. Lynn left the marital home. Nor is there any inference to be drawn from the record that her post-separation adultery could further have undermined what by the time of his desertion was clearly a doomed marriage.
The trial judge correctly noted that matrimonial fault may be considered by a court when awarding alimony. The controlling statute states:
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]
The trial judge's denial of alimony to Mrs. Lynn was based on two premises. The first was that she was guilty of outrageous marital fault and criminal conduct, in violation of N.J.S.A. 2A:88-1. The second was that it was unlikely she would become a public charge if denied alimony.
On the first point the trial judge said, "Other than an adulterous wife, this court knows of no other litigant who is permitted to profit from the commission of a crime." Id. at 383. And the judge further stated: "It is no excuse or justification that the adultery was subsequent to her being deserted." Id. at 384. We decline to accept this rigid analysis as justifying a per se bar to an award of alimony, especially where the adultery is post-separation or post-desertion, and the extra-marital sexual activity did not precipitate the breakup of the union. Adultery is rarely prosecuted criminally and soon will not be a crime. The New Jersey Code of Criminal Justice, L. 1978, c. 95, pp. 279 to 581, N.J.S.A. 2C:1-1 et seq. , approved August 16, 1978 and effective September 1, 1979, decriminalizes adultery and all other private consensual conduct between competent adults. N.J.S.A. 2C:14-1, et seq.; N.J.S.A. 2C:98-2. Indeed, notwithstanding this legislative action, a substantial doubt arises in view of recent appellate decisions decriminalizing private adult fornication and homosexual activity on state constitutional grounds of privacy and personal autonomy, as to the constitutionality of the criminal adultery statute, N.J.S.A. 2A:88-1. State v. Saunders , 75 N.J. 200 (1977); State v. Ciuffini , 164 N.J. Super. 145 (App. Div. 1978). See also, State v. J.O. , 69 N.J. 574 (1974). We decline to accept the thesis adopted by the trial judge that an award of alimony to an adulteress is a reward for criminality which the law should regard as per se repugnant.
We also disagree with the trial judge's conclusion that Mrs. Lynn committed such "outrageous adultery" as to override all other considerations and make an award of alimony "wholly unjustified." Mrs. Lynn may have, in the eyes of ...