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Portner v. Portner

Decided: May 31, 1983.

BARBARA PORTNER, PLAINTIFF-APPELLANT,
v.
MORTON PORTNER, DEFENDANT-RESPONDENT



On Appeal from the Superior Court, Appellate Division, whose opinion is reported at 186 N.J. Super. 410 (1982).

For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Garibaldi, J.

Garibaldi

Once again this Court addresses the problem of determining the terminal date of a marriage for the purpose of identifying assets eligible for equitable distribution under N.J.S.A. 2A:34-23.

Barbara Portner ("wife") and Morton Portner ("husband") were married on September 24, 1960 in Philadelphia, Pennsylvania. From that date until August 1974, the Portners resided together in New Jersey. One child, a son, was born of the marriage. In August 1974, the husband left the marital home in New Jersey and moved to Philadelphia. On November 6, 1974, the wife filed in the Superior Court of New Jersey a complaint for separate maintenance, based on claims of desertion and nonsupport, and on February 24, 1975, an order for support pendente lite was entered.

On August 26, 1975 the husband filed a complaint for divorce in Pennsylvania on the ground of indignities. This complaint was dismissed for lack of prosecution because the husband was

unable to prove a cause of action under Pennsylvania law. While the Pennsylvania action was still pending, the husband moved to Delaware, where he again filed for divorce. This action was also dismissed, apparently due to the husband's misrepresentation that there was no other action pending with respect to the dissolution of his marriage.

On December 11, 1979, the wife amended her New Jersey complaint for separate maintenance to demand a judgment of divorce on the ground of separation for 18 months. In January 1980, the husband filed an answer and also a counterclaim for divorce, relying likewise on the ground of an 18-month separation. A judgment of divorce was entered on September 22, 1980.

Because of the husband's alleged ownership of a townhouse in Philadelphia, the terminal date of the marriage is significant for the purpose of equitable distribution. If the wife were to establish that her husband, in fact, owns the townhouse, it would be subject to equitable distribution. The trial court determined that the date the parties separated in 1974 was the terminal date. The Appellate Division reversed, 186 N.J. Super. 410, holding that for purposes of equitable distribution the marriage terminated on August 26, 1975, the date the husband filed his complaint for divorce in Pennsylvania. Judge Antell dissented because he concluded that under Painter v. Painter, 65 N.J. 196 (1974), and Brandenburg v. Brandenburg, 83 N.J. 198 (1980), the marriage did not end until December 11, 1979, the date the wife amended her complaint to demand a judgment of divorce.

On the basis of the dissent, the wife filed an appeal as of right to this Court, pursuant to R. 2:2-1(a)(2). Thus, the only question before us is: When did the marriage end, for the purpose of ascertaining those assets that were acquired during the marriage and therefore are subject to equitable distribution? For the reasons expressed below, we agree with Judge Antell that the terminal date of the marriage was the date the wife amended her complaint to demand a judgment of divorce.

I.

The Divorce Reform Act of 1971, L. 1971, c. 212, changed matrimonial law in New Jersey by providing for the equitable distribution of marital assets:

In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage. [ N.J.S.A. 2A:34-23 (emphasis added)]

On several prior occasions, this Court has considered what span of time the Legislature intended by the words "during the marriage." See Brandenburg v. Brandenburg, 83 N.J. 198 (1980); DiGiacomo v. DiGiacomo, 80 N.J. 155 (1979); Smith v. Smith, 72 N.J. 350 (1977); Carlsen v. Carlsen, 72 N.J. 363 (1977); Chalmers v. Chalmers, 65 N.J. 186 (1974); Painter v. Painter, 65 N.J. 196 (1974). ...


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