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Davis v. Davis

Decided: April 27, 1982.

HELENE DAVIS, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
RICHARD S. DAVIS, DEFENDANT-APPELLANT AND CROSS-RESPONDENT. HELENE DAVIS, PLAINTIFF-APPELLANT, V. RICHARD S. DAVIS, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Chancery Division, Essex County.

Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

[184 NJSuper Page 432] In these consolidated appeals plaintiff Helene Davis and defendant Richard S. Davis challenge portions of several post-judgment orders of the Chancery Division entered in this matrimonial action which (1) increased the amount of alimony defendant

is to pay plaintiff from $580 to $990 a month; (2) required defendant to designate plaintiff as the beneficiary of $100,000 of life insurance or, alternatively, to create a $100,000 trust fund to pay her alimony in the event of his death; (3) directed plaintiff to pay defendant one-half of all Social Security disability and other benefits received by her in excess of $2,000 a year; (4) awarded plaintiff counsel fees of $2,500 and (5) denied plaintiff additional counsel fees.

The facts giving rise to these appeals essentially are not in dispute. On September 28, 1956, after about 14 1/2 years of marriage, a judgment nisi was entered in the Chancery Division granting plaintiff and defendant a provisional divorce and ordering defendant to pay plaintiff $50 a week alimony. In December 1956 the judgment nisi became absolute. On June 21, 1961 a consent order was entered by the trial court pursuant to which defendant was to pay plaintiff alimony of $325 a month. On November 6, 1963 a second consent order was entered pursuant to which defendant was to increase plaintiff's alimony to $365 a month. By 1973, however, plaintiff's health had deteriorated to the point that defendant conceded that plaintiff was no longer able to seek gainful employment. On February 1, 1973, in an attempt to "fix, finally and irrevocably the amount of money" which defendant was to pay plaintiff, the parties entered into an agreement which in pertinent part, provided:

1. [Defendant] agrees that commencing as of February 1, 1973 and on the first day of each and every month thereafter, until the remarriage of [plaintiff] or the death of [plaintiff] or [defendant], whichever event occurs first, [defendant] shall pay to the [plaintiff] the sum of $580 a month as alimony for her support and maintenance.

2. If [plaintiff] shall receive, by way of Social Security benefits, for disability or otherwise, a sum in excess of $2,000 per annum, [plaintiff] agrees that she will reimburse to [defendant], either in cash or by way of adjustment on the amount to be paid thereafter by [defendant] to [plaintiff], one-half of all sums received by [plaintiff] by such Social Security benefits in excess of the sum of $2,000 per annum.

The trial court "approved finally and irrevocably" this agreement by order dated March 6, 1973.

On October 17, 1979 plaintiff moved for an order (1) increasing alimony; (2) directing that defendant provide her with Blue Cross/Blue Shield coverage; (3) directing that she be designated as the beneficiary of $140,000 of insurance on defendant's life and (4) awarding counsel fees. Alternatively, plaintiff sought discovery, including copies of defendant's federal and state income tax returns from 1973. Defendant thereupon filed a cross-motion to compel plaintiff to submit to cross-examination pursuant to the provisions of R. 1:6-6. Following argument, the trial judge granted each party the right to serve written interrogatories upon the other and to apply to take depositions and seek such other discovery as may be necessary. The trial judge reserved decision with respect to the other relief requested by plaintiff. On July 25, 1980 plaintiff filed another motion essentially seeking the same relief requested by the October 1979 motion. On December 8, 1980, after argument and consideration of the affidavits and other papers submitted by the parties, the trial court ordered that:

1. The alimony to be paid by defendant to plaintiff is increased, effective from and after December 1, 1979, from $580 a month, by $410 a month, making a total of $990 a month to be paid on the first day of each and every month.

2. The additional sum due plaintiff by defendant, as alimony, for the period from December 1, 1979 to and including October 1, 1980, a period of 11 months, on account of the increased sum of $410 a month, amounts to $4,510 and shall be paid by defendant to plaintiff as follows: $1,503.33 on or before November 15, 1980; $1,503.33 on or before January 15, 1981; and $1,503.34 on or before February 15, 1981.

3. Plaintiff is indebted to defendant in the sum of $2,597.40 representing one-half of all sums collected by plaintiff on account of Social Security benefits in excess of $2,000 per annum, for the period commencing the month of February, 1973 to and including the month of January, 1980; said sum of $2,597.40 shall be paid by plaintiff to defendant on or before March 15, 1981.

4. Plaintiff's application for a counsel fee for John E. Finnerty, Esq., her attorney, is disposed of as follows:

Plaintiff's attorney is awarded a counsel fee (exclusive of expenses) of $2,500.00, payable one-half on or before January 2, 1981 and the balance on or before February 1, 1981.

On June 12, 1981 defendant moved for an order to compel plaintiff to comply with the provisions of paragraph 3 of the aforesaid order of December 8, 1980 and paragraph 2 of the

agreement of February 1, 1973, dealing with the division of Social Security benefit payments received by plaintiff. Plaintiff immediately filed a cross-motion (1) to compel defendant to designate her as the beneficiary of $140,000 of insurance on his life or, alternatively, to create a trust fund to continue alimony payments uninterrupted in the event defendant predeceased her; (2) to be relieved from the Social Security benefits provisions of the February 1973 agreement and the December 1980 order and (3) for counsel fees. The trial judge, again on the basis of the papers submitted by the parties, held that the Social Security provisions of the agreement and prior order should be enforced, and directed defendant to designate plaintiff as the beneficiary of $100,000 of face value life insurance or, alternatively, to create a $100,000 trust fund in lieu thereof which is to pay her alimony in the event of his ...


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