
    Rebecca A. Hires, petitioner, v. George Hires, Jr., defendant.
    [Decided June 7th, 1920.]
    Wiliere a separation agreement toad been entered into by a tousbaud and wife, stipulating a certain annual pai'ment by the husband to itltoe wife during theii’ joint lives, and the wife afterwards obtains a divorce on the ground of adultery, this court, in fixing future alimony, is not bound by the terms of the separation agreement, but should fix- an amount according to the wife’s needs and the husband’s ability to pay, and the increasing expenses of the children, who are in the wife’s custody, should also be considered.
    On petition for divorce. On hearing on exceptions to report of special master.
    
      Mr. Edward G. Waddington, for the petitioner.
    
      Mr. Albert 8. Woodruff, for the defendant-exceptant.
   Leaming, V. C.

By the petition filed herein petitioner seeks a divorce from defendant on the ground of adultery and prays that the custody of the two minor children of the márriage may be awarded to her and that defendant may he compelled to pay to1 petitioner a suitable amount for the support of petitioner and the two children:

Ho answer having been filed by defendant a reference was made to a special master. Before the special master the charge of adultery was fully established and considerable testimony .was taken to determine the amount that defendant; should pay for the support of petitioner and the children.

The master reported in favor of a decree of divorce for the adultery of defendant, and fixed $3,000 per year _as the amount defendant should pay for the support of petitioner and $2,000 per year as the additional amount he should pay for the support of the two children whose custody the master awarded t.o petitioner ; the master also reported that defendant should give bond to the amount of $20,000 to secure these payments.

The .present hearing is on exceptions to the master’s report which have been filed by defendant.

Eb exceptions have been filed to that part of the report which finds defendant guilty of adultery as charged and recommends a divorce on that ground; nor are exceptions filed to the award of the custody of the children to petitioner; nor are exceptions filed to that part of the report fixing $2,000 per year as the amount to be paid to petitioner by defendant for the support of the children. The exceptions relate alone to the award of $3,000 per year to be paid by defendant for petitioner’s support and to that part of the report requiring defendant to give bond of $20,000 to secure the payments referred to in the report.

By the testimony taken before the master it appears that the sole source of income of defendant, is the-amount paid to him from year to year by testamentary trustees of a certain trust estate. Since the amount payable to defendant during the last, year of the trust could not be ■ definitely known' when the trustee testified, a stipulation has since been filed supplying that information.

It appears by the testimony that in the year 1915 a formal separation agreement was. entered into by the respective parties in which, among other things, it was agreed that. $1,500 a year should be paid by defendant to petitioner for her support, which amount she agreed to receive "in full satisfaction for her support and maintenance, and all alimony whatever.” That amount, in monthly installments, defendant has since paid. It is now contended by defendant .that notwithstanding the fact that a decree of.divorce is now to be entered against him by reason of his adtdtery, no order'for alimony for his wife in that decree can properly exceed in amount, the rate stipulated in the separation agreement. The agreement is for the period of the joint lives of the parties and provides that payments shall be made at the rate named for ten years, at the end of which time a larger amount will be agreed upon, but that the rate named shall continue after the expiration of the ten years until such new agreement shall be made. The separation agreement contains no stipulation limiting its operation to the period of chastity of either of the parties.

The question is thus directly presented whether the wife is to be bound by her covenant to accept $1,500 per year for'her support after she shall have procured a divorce from her husband by reason of his adultery, since the evidence touching her present needs and her husband’s present income clearly discloses that but for her covenant to accept $1,500 for her support she should be awarded a larger amount.

I find no authority in this state that may be said to directly dispose of tire present inquiry. In Buttlar v. Buttlar, 71 N. J. Eq. 671, the wife divorced her husband because of his adultery, but no decree for alimony was made. Subsequently she sued her divorced husband to enforce the payment by him of the amount due her under a separation agreement made while the parties were husband and wife, the recovery • sought being the amount that had accrued since the decree of divorce. The obligation of the defendant under that agreement was there recognized and enforced; no claim was there made based upon the complainant’s rights or needs in excess of the amount specified in the separation agreement. In Halstead v. Halstead, 74 N. J. Eq. 596, the same vice-chancellor held that where the wife had sued for divorce and pending that suit had procured an order for alimony pendente lite, she could not pending that action maintain a separate suit to recover a larger amount under her separation agreement during the period the alimony order was running, since she had elected the former remedy. Any inquiry is to what effect, her divorce decree, when procured, either with or without alimonjq would have upon her rights under the separation agreement, was expressly reserved in the decision. In Rennie v. Rennie, 85 N. J. Eq. 1, it was held in conformity to Halstead v. Halstead, supra, that, a separation agreement which stipulated the amount the husband should pay for his wife’s support afforded no impediment to awarding the wife temporary alimony in her suit; for divorce on the ground, o'f his adultery. Iu that case the payments under tire separation agreement were in arrears and the wife’s prayer for alimony pending her divorce suit was treated as an election of remedies; the additional circumstances there existed and was emphasized that the amount specified in the- separation agreement for the wife’s support was inadequate to support her and tire children of 'the marriage then in her custody. Boehm v. Boehm, 88 N. J. Eq. 74, is in point only to the extent that it suggests that the husband’s duty to support his wife flows from the matrimonial relation, and section 25 of our Divorce act imposes upon the court of chancery the duty to enforce that obligation either pending a suit for divorce or after decree of divorce. Whittle v. Schlemm (Court of Errors and Appeals), 109 Atl. Rep. 305 (disapproving Devine v. Devine, 89 N. J. Eq. 51), holds that a wife who has committed adultery subsequent to her separation agreement may recover the amount stipulated in that agreement for her support unless and until the husband shall have procured a decree of divorce against her, unless the agreement of separation shall contain a clause limiting its operation to the period of chastity of the wife.

The question here involved has been before the English courts on repeated occasions. After varying decisions based on varying grounds the court of appeals in Bishop v. Bishop (1897), P. D. 138, fully reviewed the prior decisions and finally determined in that jurisdiction the effect of a dissolution of the marriage by reason of the husband’s adultery upon the wife’s covenant-contained in a separation agreement to accept a specified sum for her support for the joint lives of the parties. It. was there held that the powers and duties conferred on the court by 20 and 21 Vic. (1857) c. 85 § 32 and 29 and 30 Vic. c. 32 § 1, as to a divorced wife’s maintenance, which statutes contemplated that regard should be had to the wife’s fortune, to the ability of the husband, and to the conduct, of the parties should not be disregarded and attention only paid to the terms of the separation agreement; that the wife cannot preclude herself by her agreement from invoking the aid of the court to obtain further maintenance in the events stated. Alimony, after divorce, was accordingly justified in amount in excess of the amount specified in the agreement. Although unnecessary to the decision of the case it was there also strongly intimated that even an express covenant of a wife contained in, a separation agreement not to sue for an amount in excess of the amount specified in the event of a divorce would be void ‘as contrary to public policy, and it was accordingly held that such a covenant could not be deemed implied by a covenant referring to the period of the joint lives of tire parties.

The powers and duties of the court of chancery of this state conferred by section 25 of the Divorce act (2 Comp. Stat. p. 2035) do not essentially differ from those conferred by the English acts referred to. Our act provides:

“Pamling a suit for divovce ©v nni'llity, ©v after decree ©f divorce, it shall be lawful for the court of chancery to make such order touching the alimony of a wife, and also touching filie care, custody, education and maintenance of the children, or any of them, as [from] the circuimstances of the parties and the nature of the case shall be rendered fit, reasonable and just.”

It seems to me to be impossible to doubt that under this statute where the wife who is without fault is awarded a decree of divorce by reason of her husband’s adultery, it becomes the duty of the court in determining the amount, of alimony to be paid to her to base that determination upon her needs and her divorced husband’s ability to pay, and to disregard the amount specified in a prior separation agreement when that amount is less than the amount that would be otherwise ascertained as “reasonable and just.”

Another circumstance exists in this case which should lead to a similar conclusion. The separation agreement is wholly silent, touching any provision for the support of the children.. The custody of these children are to he awarded to the wife. While they were in the wife’s custody when the separation agreement was made, and that fact may have been taken into account, by the parties, although no stipulation was expressly made for their support, they have since necessarily grown materially older and a source of increased expense. To that extent conditions have materially changed. The right of this court to malee suitable provision for their support is unquestioned, and an aggregate allowance for the wife ancl children would seem appropriate. The master has determined the amounts separately and exceptions have been filed only to the amount allowed to the wife. I will, in consequence, advise a similar separation, but should, I think, take into account the entire needs of the wife for herself and her children considered as a whole.

The master awarded $2,000 per year for the children and $3,000 per year for the wife. These amounts aré, in my judgment, reasonable and just. Since the master’s report was filed it has been ascertained that defendant’s income has been reduced, hut I think his present income and earning capacity sufficient to justify the amounts recommended by the master. I see no reason why defendant’s ability to augment his income by personal efforts should not be taken into account merely because he prefers to live a life of idleness. I think, also, that the bond advised by the master should be required. The exceptions to the master’s report are accordingly overruled.  