In late 2007, in Calbi v. Calbi, 396 N.J. Super. 592 (App. Div. 2007), the Appellate Division once again re-affirmed the notion that marital fault is all but irrelevant when assessing a party's right to receive alimony.
In what was as tragic a case as any parent could imagine, Mr. Calbi sought to terminate or reduce his alimony after one of the party's two children died at the hands of the mother. Specifically, while intoxicated, during an altercation, Mrs. Calbi kicked her son three times in the head and once in the neck. He died as a result of the injuries he sustained. Ultimately, Mrs. Calbi plead guilty to second degree aggravated assault for which she was to be imprisoned for approximately 3 years. As a result of the grief and trauma associated with the loss of his son as well as the added responsibilities for caring for the parties' other son, Mr. Calbi fell behind on his alimony. In light of all of the circumstances, he sought the reduction if not elimination of alimony.
The trial judge ultimately that any application to terminate alimony should await Mrs. Calbi's release from prison. However, the current support was suspended, but the prior arrears were not vacated and Mr. Calbi was ordered to pay them.
The Appellate Division reversed holding that suspension of Mr. Calbi's alimony payments and vacation of the alimony arrears that accrued after death of parties' child was required. Moreover, upon Mrs. Calbi's release from prison, Mr. Calbi was entitled to a hearing to determine whether the child's death affected his ability to pay alimony.
That said, the Court went back and reviewed the cases regarding fault, including the 2005 case of Mani wherein Justice Long held that marital fault was irrelevant to alimony except in two narrow instances: cases in which fault has affected the economic life of the parties, and “cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.” Justice Long spoke of “egregious fault,” which she defined as acts by their very nature, are different in kind, such as a spouse attempting to murder the other spouse; a spouse who as deliberately infected the other with a loathsome disease. Justice Long went on to say, "Underlying these examples is the concept that some conduct, by its very nature is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties. In the extremely narrow class of cases in which such conduct occurs, it may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all."
Since Mrs. Calbi's actions were not deemed to be intentional, either in the criminal court or the family court, she was not precluded from receiving alimony no matter how contemptible or aberrant her conduct was.
That said, if this conduct will not terminate alimony, then there is little by way of fault that would do so.
