Elizabeth Gnall v. James Gnall , 432 N.J. Super. 129 ( 2013 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3582-10T1
ELIZABETH GNALL,
APPROVED FOR PUBLICATION
Plaintiff-Appellant/
Cross-Respondent, August 8, 2013
v. APPELLATE DIVISION
JAMES GNALL,
Defendant-Respondent/
Cross-Appellant.
_______________________________
Argued January 29, 2013 - Decided August 8, 2013
Before Judges Messano, Lihotz and Kennedy.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Bergen County, Docket No. FM-02-2021-08.
Dale E. Console argued the cause for
appellant/cross-respondent.
Barry L. Baime argued the cause for
respondent/cross-appellant (Budd Larner, PC,
attorneys; Mr. Baime, of counsel; Donald P.
Jacobs, on the briefs).
The opinion of the court was delivered by
LIHOTZ, J.A.D.
These matrimonial cross-appeals challenge several
provisions in a final judgment of divorce entered following a
seventeen-day trial, including the propriety of awarding limited
duration alimony following the parties' fifteen-year marriage.
Plaintiff Elizabeth Gnall attacks the award of limited duration
alimony, suggesting she should have been awarded permanent
alimony. She also argues the judge abused his discretion in
restricting her access to the awarded supplemental child support
in this high income case, and in allocating her equitable
entitlement to defendant's 2007 and 2008 bonus income.
Defendant James Gnall has abandoned his cross-appeal challenging
the amount of alimony, but continues to maintain the child
support calculations were erroneous. He also contends the judge
abused his discretion when ordering him to pay plaintiff's
attorney's fees, and mistakenly set the amount of life insurance
he must obtain to guarantee the ordered support obligations. We
affirm in part and reverse in part.
I.
The facts are taken from the trial record. Our limited
recital is tailored to address only those issues raised on
appeal, rather than all issues addressed at trial.
The parties married on June 5, 1993, and have three
children, who are now ages fourteen, thirteen, and eleven. In
2008, plaintiff filed a complaint and defendant filed a
counterclaim for divorce, each alleging irreconcilable
2 A-3582-10T1
differences. At the time trial commenced on April 8, 2009, both
parties were forty-two years old.
The trial focused on factors necessary to discern the
appropriate nature and amount of alimony. The parties presented
factual and expert testimony regarding plaintiff's past
employment and future employability prospects once she returned
to the workforce; defendant's current and anticipated future
earnings; and the needs of plaintiff and the children. The
parties and their experts testified.
Prior to the parties' marriage, plaintiff received a
bachelor's degree in electrical engineering and, while working
full-time as an engineer for IBM, obtained a master's degree in
computer science. At the time of the marriage, she was employed
as a software programmer and systems analyst for the foreign
exchange sales group of Goldman Sachs, earning approximately
$62,000 per year. She later worked as a senior programmer and
analyst for the Government Securities Clearing Corporation, and
then as Assistant Vice President at Bankers Trust Corporation,
performing computer programing, creating web sites, and
developing web interfaces. In 1999, while pregnant with the
parties' second child, she left her corporate position to join a
friend's start-up company, known as "Visual Tonic." Her salary
in 1997 was $115,048. She earned $94,000 for part of 1998 and
3 A-3582-10T1
$52,202 for part of 1999, the years the two older children were
born. Thereafter, with defendant's assent, she stopped working
outside the home to principally care for the children. The
parties' third child was born in 2002.
At trial, plaintiff explained she believed her programming
skills were "obsolete" and needed to be "totally retrained"
prior to reentry into the rapidly changing computer field.
Moreover, she assumed she would be competing with younger
candidates for available entry-level positions. Consequently,
she was dissuaded from returning to computer programing and,
instead, proposed to pursue a career as a math teacher. She
chose teaching based on a perception there existed a "high
demand" for such professionals and, more important, because her
prospective work schedule would coincide with the children's
school day, thereby minimizing childcare costs and any
disruption to the children's routine. Plaintiff had
investigated the requirements to obtain a teaching certification
and believed she could acquire the necessary training through
part-time study in four years or less, depending upon the
acceptance of previously earned college credits. She initially
intended to obtain the necessary degree from William Paterson
University, which was proximate to her home, but ultimately
enrolled in a three-year online program sponsored by Western
4 A-3582-10T1
Governors University in Utah. Plaintiff estimated the cost to
obtain her degree, excluding books, was approximately $18,610,
representing tuition for six semesters at $2935 per block, plus
a $1000 student teaching fee.
Plaintiff described her health concerns. She underwent
skull-based neurosurgery to remove a mass in November 2006.
Resultant nerve damage caused her to experience facial numbness,
occasional eye pain, and intermittent noises in one ear. She
returns for annual medical reviews of her condition and
undergoes an MRI every year. She attended counseling to address
stress caused by the divorce and the accompanying litigation.
Plaintiff did not believe her medical conditions impeded her
ability to resume employment.
Prior to trial, plaintiff participated in employment
evaluations, during which she expressed her interest was
"raising her children." Elaborating, she said she "had
absolutely no interest . . . and ha[d]n't given much thought to
her career[,]" although she had taken a community college course
providing an overview of veterinary technician careers. She did
not desire that job and suggested to defendant's expert she was
interested in culinary arts. She expressed a similar sentiment
when evaluated by her own expert, stating she might like to work
5 A-3582-10T1
"at some point in the future," but presently was concerned about
the care of the children.
Each party presented expert testimony addressing
plaintiff's employment prospects. Defendant offered the opinion
of David B. Stein, Ph.D., of Vocational Consulting Group, Inc.
Plaintiff then offered the opinion of Charles Kincaid, Ph.D., of
Kincaid Vocational & Rehabilitation Services.
Dr. Stein obtained plaintiff's work history and
educational background, and developed a "worker trade profile"
to identify available jobs matching plaintiff's qualifications
or positions she could reasonably become qualified to perform
based on her past education and experience. Using United States
Department of Labor categories of employment, Dr. Stein opined
plaintiff was "very qualified" for and would be "best suited" to
continue as a computer programmer or computer software engineer
because she had a "very high level of training." He believed
plaintiff could readily "update her skills" by obtaining
necessary retraining, either online or at universities in the
geographic area, in approximately six to twelve weeks, at a cost
of $1,000 to $4,000, depending on the type of skills she
developed.
Dr. Stein observed computer programming and software
engineering positions "exist[ed] in large numbers" and,
6 A-3582-10T1
according to recent projections from the Department of Labor,
were among the occupations expected to grow the fastest over the
upcoming decade. He noted computer programmers earned less than
software engineers. Nationally, positions in these fields
carried an annual salary of between $80,000 and $93,740, with
even higher wages, on average, in Bergen County. Because she
possessed a "very strong academic, as well as job performance
background," Dr. Stein did not view plaintiff's absence from the
job market as having a "preclusive" effect on her ability to
obtain employment. Dr. Stein opined plaintiff could expect an
initial annual salary of between $58,000 and $69,000, but,
judging by her past performance, she could anticipate rapid wage
growth and, within two or three years, perhaps earn an annual
salary in excess of $115,000.
Plaintiff's expert, Dr. Kincaid, similarly focused on
plaintiff's return to employment in the computer field, even
though he noted she expressed disinterest in such work and
"wanted a change[.]" He disagreed with Dr. Stein's conclusions
regarding plaintiff's employability, as well as the probable
length and cost of retraining, noting hiring trends for computer
programmers did not show anticipated growth over the ensuing
decade. He agreed, however, "faster than average growth" and
"very good prospects" of employment were predicted for computer
7 A-3582-10T1
systems analysts, a position similar to plaintiff's IBM
position, and also for computer software engineers, a field in
which plaintiff's skills and educational background were
compatible, despite her lack of direct experience.
Using the reported requirements and salaries found in local
job advertisements, Dr. Kincaid concluded plaintiff needed to
engage in approximately one to two years of retraining to
upgrade her skills, at a cost of $10,000 to $15,000. He too
discussed plaintiff's possible employment as a software
engineer, for which entry level positions included an estimated
annual salary of $56,764, and a mean salary of $67,763.
Next, defendant testified as to his employment and income.
A certified public accountant, he was working as Chief Financial
Officer for the America Financial Group of Deutsche Bank.
Defendant's annual compensation included his fixed annual salary
and a discretionary bonus paid in February following the close
of the calendar year. His bonus payment included cash and
deferred equity units, or stock options, restricted by a three-
to five-year period of vesting. The following chart sets forth
defendant's remuneration from employment as paid in calendar
years 2005 through 2010, understanding cash bonuses and equity
units were paid in the February following the close of the
actual compensation year on which they were based.
8 A-3582-10T1
YEAR SALARY CASH BONUS EQUITY TOTAL
UNITS COMPENSATION
2005 $185,000 $ 325,000 $ 510,000
2006 $185,000 $ 481,100 $ 84,900 $ 751,000
2007 $200,000 $ 718,702 $ 97,298 $1,016,000
2008 $200,000 $ 766,507 $108,493 $1,075,000
2009 $200,000 $1,296,806 $303,194 $1,800,000
2010 $400,000 $ 788,899 $683,326 & $2,100,000
$227,7751
Defendant specifically addressed his 2008 bonus. He stated
the terms of the bonus were negotiated in July 2008, as part of
his promotion, which post-dated plaintiff's complaint for
divorce. The 2008 bonus check (received in February 2009) was
not directly deposited into the parties' joint checking account,
as was the custom with prior bonuses. Rather, defendant
deposited the check into an account titled solely in his name.
Although a portion of the cash bonus may have been used for
pendente lite support, defendant argued plaintiff was not
entitled to an equitable share of the funds because he received
the money as part of his promotion, not as a result of his past
performance.
Evidence of the parties' expenses and the marital lifestyle
was also presented. Both parties marked into evidence their
respective original and revised Case Information Statements
1
In 2010, defendant was awarded an annual incentive award,
which vests over three years.
9 A-3582-10T1
(CIS), and plaintiff presented expert testimony from Rufino
Fernandez, Jr., CPA, a forensic accountant.
At the time of trial, the parties' Ridgewood marital home
had been sold, plaintiff and the children were renting a smaller
residence in Ridgewood, and defendant had moved to an apartment
in Manhattan's upper west side. Plaintiff's initial CIS was
based on the costs of the marital home and listed monthly
expenses totaling approximately $35,000. Her budget was revised
to $21,041 per month to reflect her change in residence.2 On the
other hand, defendant reported the family's joint marital
lifestyle while living in Ridgewood was $23,664 per month, of
which he allocated $10,906 for his needs. He too modified his
budget after moving to New York City, claiming monthly
expenditures of $19,803.
During the marriage, plaintiff handled the family's
finances. Defendant's paycheck was directly deposited into the
joint checking account, from which plaintiff paid utilities,
food, and smaller landscaping bills. Similarly, the cash
portion of defendant's bonus was directly deposited into the
joint checking account and disbursed by plaintiff to cover
current and future anticipated expenses. For example, in 2007,
2
In the course of the trial, the marital home was sold,
netting $797,411.
10 A-3582-10T1
a portion of the bonus remuneration was placed in savings;
$10,000 was placed in each of the children's uniform gift to
minor's accounts (UGMA); $10,000 was used to reduce the
principal balance of the mortgages; a sum was set aside to
satisfy the resultant tax obligations; and the remainder was
used to pay credit card bills, car expenses, the monthly
mortgages, real estate taxes and insurances, large landscaping
bills, and the like.
Defendant drove a 2008 Infiniti M45 after trading in a 1998
Nissan Maxima. His monthly car payment was $1,039. Plaintiff
drove a 2007 Cadillac Escalade, which was encumbered by a loan
requiring a monthly payment of $1,583. Plaintiff explained
groceries were purchased from Whole Foods or Kings, clothing was
bought from Talbots, Nordstrom, Macy's, Ann Taylor, Victoria's
Secret, Lilly Pulitzer, and the Gap, and defendant's suits were
purchased from Barney's in New York City. The family enjoyed
multiple vacations each year, which had included ski trips to
Aspen and Switzerland, stays at Disney World, ocean front
rentals in the Outer Banks, North Carolina, and shorter trips to
Rhode Island and Boston. Plaintiff insisted the parties always
had money to buy whatever they wanted and never worried; they
always paid their expenses when incurred; and other than the
mortgages and car loans, they had no debts. The children
11 A-3582-10T1
attended public school and were involved in several other
extracurricular activities, such as sports and music lessons.
Each child was engaged in counseling to address issues arising
from their parents' divorce.
Plaintiff's expert, Fernandez, prepared a lifestyle
analysis after interviewing plaintiff and reviewing the historic
Quicken checking expenses, other bank account records, and
investment documentation for the period from 2004 to 2007.
Fernandez admitted plaintiff reviewed his preliminary drafts to
verify the accuracy of his proposed expense allocations, he did
not consult with defendant. In order for plaintiff and the
children to maintain the marital lifestyle, Fernandez opined
she would need $24,252 per month, plus additional monies for
savings and income tax obligations resulting from the alimony
receipts.3
On cross-examination, the accuracy of Fernandez's report
was attacked. Defendant showed Fernandez had artificially
inflated the total needs of plaintiff and the children by:
including miscellaneous expenses that were actually transfers
between accounts, not expenses; including costs expended for the
3
Fernandez determined the amount of the parties' savings
over the years was: $58,692 in 2004; $148,184 in 2005; $239,078
in 2006; and $334,651 in 2007.
12 A-3582-10T1
benefit of defendant; and doubling actual vacation costs and a
portion of the cash expenditures.
Defendant's testimony emphasized his financial success was
recent and not representative of the marital lifestyle. He also
argued the parties had recently increased their household
expenditures by using a home equity loan to build an addition to
the home, and by buying newer cars. He asserted these expenses
should not be considered when calculating the standard of living
enjoyed during the marriage.
Reviewing the evidence submitted, the trial judge concluded
the parties enjoyed "an upper middle class" lifestyle that was
more modest than what could be afforded on defendant's more
recent remuneration. He fixed the monthly needs of plaintiff
and the three children at $18,000. After concluding plaintiff
could return to the computer field and earn "between $61,200 and
$94,000," he considered the alimony factors, understanding his
obligation to make statutory findings. He found the parties'
fifteen-year marital relationship was "not short term[.]"
Nevertheless, when he weighed the "relatively young" age of the
parties, and their good health and education, which allowed them
to obtain employment "at good salaries" and thereby support
"excellent lifestyles for themselves and their children[,]" the
judge concluded "the parties were not married long enough and
13 A-3582-10T1
are not old enough for [defendant] to be responsible to maintain
that lifestyle permanently for [plaintiff]." He therefore
concluded, "this is not a permanent alimony case."
The judge also rejected an award for rehabilitative
alimony. Even though he acknowledged plaintiff needed
retraining, he found plaintiff could take classes online at her
own pace. The judge also noted plaintiff had failed to work
toward obtaining employment during the two years the case was
pending. Consequently, he imputed $65,000 annual income to her,
effective immediately, and awarded $18,000 per month limited
duration alimony for eleven years. The alimony award was to
terminate on September 1, 2021, coincident with the youngest
child's anticipated departure for college. Further, the award
would not be subject to modification based on plaintiff's future
earnings; rather, modification would be permitted only upon
either party's death or plaintiff's remarriage.
The initial child support calculations made following trial
were challenged in post-judgment motions. At that time, the
judge corrected an error and re-calculated child support under
the guidelines as $997 per week. He added a supplemental
support award of $1600 per month per child, requiring the
maximum gift tax amount (currently, $13,000 per year) be
deposited into the children's UGMA accounts, unless the parties
14 A-3582-10T1
agreed otherwise. Any remaining sums would be paid monthly to
plaintiff to use as she saw fit.
The judge concluded the marital portion of defendant's 2008
bonus (paid in February 2009) was limited to the proportionate
amount represented by the period prior to the filing date of the
complaint, that is January 1, to March 10, 2009. The judge
calculated the total marital portion as $216,700 and concluded,
"at best plaintiff's share would be fifty percent, or $108,300."
However, the judge determined plaintiff's interest was offset by
her past receipt of tax-free pendente lite support and other
lump sum payments made during the two-year litigation.
Defendant was ordered to maintain $3 million in life
insurance during the limited duration alimony term. When
alimony ended, he was permitted to reduce the life insurance to
$1 million until the emancipation of the children. Finally,
defendant was ordered to satisfy the outstanding $105,423.86
balance plaintiff owed to her attorney.
Motions were filed for reconsideration of some
determinations and for clarification of others. As noted, the
amount of child support was adjusted. Also, the judge denied
defendant's cross-motion to reduce the life insurance obligation
to the actual amount of alimony due. Thereafter, plaintiff
15 A-3582-10T1
appealed and defendant cross-appealed from designated provisions
of the judgment.
II.
Our review of a trial court's factual findings is limited.
N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79
(2007) (citation omitted). "The general rule is that findings
by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v.
Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We defer
to credibility determinations because a trial court "'hears the
case, sees and observes the witnesses, [and] hears them
testify,'" affording it "'a better perspective than a reviewing
court in evaluating the veracity of witnesses.'" Id. at 412
(quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988) (internal
quotation marks and citations omitted)).
Further, we recognize the "special expertise" of judges in
addressing discretionary matters in the Family Part. Therefore,
if the trial judge's conclusions are evidentially supported, we
are inclined to accept them. Ibid. Consequently, we do "not
disturb the 'factual findings and legal conclusions of the trial
judge unless . . . convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and
16 A-3582-10T1
reasonably credible evidence as to offend the interests of
justice.'" Ibid. (internal quotation marks and citations
omitted). "Only when the [trial] court's conclusions are so
'clearly mistaken' or 'wide of the mark'" that the judge was
obviously mistaken, should we interfere and make our own
findings to "ensure that there is not a denial of justice."
N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104
(2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191
N.J. 596, 605 (2007)).
On the other hand, our review of a trial court's legal
conclusions is always plenary. D.W. v. R.W., 212 N.J. 232, 245-
46 (2012) (citing Balsamides v. Protameen Chems., 160 N.J. 352,
372 (1999)). We are not bound by "[a] trial court's
interpretation of the law and the legal consequences that flow
from established facts[,]" which "are not entitled to any
special deference." Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995).
III.
A.
Plaintiff's principal challenge on appeal attacks as error
the judge's award of limited duration alimony. Plaintiff
succinctly asserts: "This is a permanent alimony case."
17 A-3582-10T1
"Alimony is a claim arising upon divorce, which is rooted
in the parties' prior [financial] interdependence" created
during their marital relationship. Reese v. Weis, 430 N.J.
Super. 552, 569 (App. Div. 2013). Whether alimony should be
awarded is governed by distinct, objective standards defined by
the Legislature in N.J.S.A. 2A:34-23b. When alimony is
requested, the statute demands the court consider and make
specific findings regarding:
(1) The actual need and ability of the
parties to pay;
(2) The duration of the marriage or civil
union;
(3) The age, physical and emotional health
of the parties;
(4) The standard of living established in
the marriage or civil union and the
likelihood that each party can maintain a
reasonably comparable standard of living;
(5) The earning capacities, educational
levels, vocational skills, and employability
of the parties;
(6) The length of absence from the job
market of the party seeking maintenance;
(7) The parental responsibilities for the
children;
(8) The time and expense necessary to
acquire sufficient education or training to
enable the party seeking maintenance to find
appropriate employment . . . ;
18 A-3582-10T1
(9) The history of the financial or non-
financial contributions to the marriage or
civil union by each party including
contributions to the care and education of
the children and interruption of personal
careers or educational opportunities;
(10) The equitable distribution of property
ordered . . . ;
(11) The income available to either party
through investment of any assets held by
that party;
(12) The tax treatment and consequences to
both parties of any alimony award . . . ;
(13) Any other factors which the court may
deem relevant.
[N.J.S.A. 2A:34-23b.]
The law compels judges to weigh all of these statutory
factors to determine whether alimony is appropriate and, if so,
ascertain the nature and calculate the amount of alimony needed
by the dependent spouse. See N.J.S.A. 2A:34-23c (requiring the
court to "make specific findings on the evidence" regarding
statutory factors relevant to an alimony award). This process
is designed to account for the unique needs and abilities
affecting each dependent spouse,4 as well as the financially
4
Although we limit the context of our discussion based on
the facts of this case to spouses, we note the statute equally
applies to partners dissolving their civil unions pursuant to
N.J.S.A. 2A:34-2.1.
19 A-3582-10T1
secure spouse called on to continue support after the marriage
ends in divorce. Certainly,
[a] trial court's findings regarding alimony
should not be vacated unless the court
clearly abused its discretion, failed to
consider all of the controlling legal
principles, made mistaken findings, or
reached a conclusion that could not
reasonably have been reached on sufficient
credible evidence present in the record
after considering the proofs as a whole.
Heinl v. Heinl, 287 N.J. Super. 337, 345
(App. Div. 1996). Substantial weight should
be given to the judge's observations of the
parties' demeanor and credibility. Ibid.[J.E.V. v. K.V., 426 N.J. Super. 475, 485
(App. Div. 2012).]
We need not detail the four types of statutorily authorized
alimony and the policy considerations underlying the
Legislature's creation of each distinct category of alimony
awards. Instead, we rely on the comprehensive analyses
contained in two opinions of this court, which have scrupulously
reviewed these topics. See J.E.V., supra, 426 N.J. Super. at
484-89; Cox v. Cox, 335 N.J. Super. 465, 473-76 (App. Div.
2000).
We nevertheless emphasize that judges considering an
alimony request must always keep in mind the primary "purpose of
awarding alimony to a spouse is based on 'an economic right that
arises out of the marital relationship and provides the
dependent spouse with a level of support and standard of living
20 A-3582-10T1
generally commensurate with the quality of economic life that
existed during the marriage.'" Clark v. Clark, 429 N.J. Super.
61, 72-73 (App. Div. 2012) (quoting Mani v. Mani, 183 N.J. 70,
80 (2005) (internal quotation marks and citations omitted)).
The economic dependence created as a result of the marital
relationship is a crucial finding necessary to impose the
ongoing financial entanglement of an alimony award. The law
attributes a party's individual success to have been achieved by
virtue of the joint union — "a shared enterprise, a joint
undertaking, that in many ways . . . is akin to a partnership."
Rothman v. Rothman, 65 N.J. 219, 229 (1974). See also Guglielmo
v. Guglielmo, 253 N.J. Super. 531, 543 (App. Div. 1992) ("We are
entirely satisfied that a spouse who maintains the home while
her husband's career advances should share in the rewards of
their combined efforts." (citations omitted)).
Finally, a judge awarding alimony must methodically
consider all evidence to assure the award is "fit, reasonable
and just" to both parties, N.J.S.A. 2A:34-23, and properly
balances each party's needs, the finite marital resources, and
the parties' desires to commence their separate futures,
N.J.S.A. 2A:34-23c. Parties must not forget, "alimony is
neither a punishment for the payor nor a reward for the payee."
Mani, supra, 183 N.J. at 80 (citations omitted).
21 A-3582-10T1
Here, our focus is not whether alimony should be awarded;
the parties agree alimony is warranted. Instead we are asked
what type of alimony suits the facts presented, and whether a
limited duration award was appropriate.
In examining any alimony request, the court begins its
analysis by considering whether permanent alimony should be
awarded.5 N.J.S.A. 2A:34-23c. Not every dependent spouse should
receive a permanent alimony award. "If the court determines
that an award of permanent alimony is not warranted, the court
shall make specific findings on the evidence setting out the
reasons therefor." Ibid. Only then must the court "make
specific findings" on the applicability of the three remaining
authorized alimony awards — limited duration, rehabilitative,
and reimbursement — to discern which one or any combination of
the three is "warranted by the circumstances of the parties and
the nature of the case." N.J.S.A. 2A:34-23f.
J.E.V. and Cox have painstakingly compared and contrasted
awards of permanent alimony and limited duration alimony, and
these cases include a recitation of the legislative history
underpinning the purpose in adopting limited duration alimony.
5
"The Legislature's use of the term permanent alimony is a
misnomer in the sense that the award is not everlasting[;]" it
is subject to modification based on statutory events and other
changed circumstances. Reese, supra, 430 N.J. Super. at 575.
22 A-3582-10T1
Briefly, limited duration alimony was designed "to fill a 'void'
identified by the Commission to Study the Law of Divorce."
Gordon v. Rozenwald, 380 N.J. Super. 55, 65 (App. Div. 2005)
(citing Sponsor's Statement to Senate Bill No. 54 (1998); Report
of the Commission to Study the Law of Divorce 35 (Apr. 18,
1995)). The undeniable rationale in adding limited duration
alimony as a remedy was to address a dependent spouse's post-
divorce needs following "'"shorter-term marriages where
permanent or rehabilitative alimony would be inappropriate or
inapplicable but where, nonetheless, economic assistance for a
limited period of time would be just."'" J.E.V., supra, 426
N.J. Super. at 485-86 (quoting Cox, supra, 335 N.J. Super. at
477 (quoting S. No. 54, at 6-7, 208th Leg. (N.J. 1998)
(statement of Sens. Kavanaugh & Martin))).6
Limited duration alimony, like permanent
alimony, is based primarily on the marital
enterprise. It is distinguishable from
permanent alimony because the length of the
marriage does not warrant permanent support
. . . . In order to avoid misuse of limited
duration alimony to the disadvantage of
supported spouses divorcing after a long-
term marriage, the law prohibits award of
6
In May 2011, the United States Census Bureau reported the
results of the Survey of Income and Program Participation (SIPP)
by the American Community Survey, showing the current average
length of marriage is eight years. See Rose M. Kreider & Renee
Ellis, Number, Timing and Duration of Marriages and Divorces, at
15 (2011), available at http://www.census.gov.prot/2011pubs/p70-
125.pdf.
23 A-3582-10T1
limited duration alimony "as a substitute
for permanent alimony in those cases where
permanent alimony would otherwise be
awarded." N.J.S.A. 2A:34-23c[.]
[Gordon, supra, 380 N.J. Super. at 66.]
Thus, "limited duration alimony represents a form of limited
spousal support for a specified purpose, namely to provide
economic assistance for a restricted period of time," Gonzalez-
Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009)
(citing Gordon, supra, 380 N.J. Super. at 65), by "offer[ing] a
benefit to spouses deserving of alimony for a limited time . . .
[,] who would be unlikely to receive any alimony under [the
prior] statutory scheme," Gordon, supra, 380 N.J. Super. at 65(internal quotation marks and citations omitted). As such,
[l]imited duration alimony is not intended
to facilitate the earning capacity of a
dependent spouse or to make a sacrificing
spouse whole, but rather to address those
circumstances where an economic need for
alimony is established, but the marriage was
of short-term duration such that permanent
alimony is not appropriate. Those
circumstances stand in sharp contrast to
marriages of long duration where economic
need is also demonstrated. In the former
instance, limited duration alimony provides
an equitable and proper remedy. In the
latter circumstances, permanent alimony is
appropriate and an award of limited duration
alimony is clearly circumscribed, both by
equitable considerations and by statute.
[Cox, supra, 335 N.J. Super. at 476(emphasis added).]
24 A-3582-10T1
Implicated by plaintiff's argument on appeal in this matter
is whether a marriage lasting three months shy of fifteen years
is the type of "shorter-term marriage[]" for which limited
duration alimony was adopted by the Legislature. In both Cox
and J.E.V., the propriety of the trial judge's award of limited
duration alimony was challenged. In each case, a significant
determining factor was the length of the respective marriage.
Certainly, "[t]he 'defining distinction' between permanent and
limited duration alimony is the length of the marriage."
J.E.V., supra, 426 N.J. Super. at 488 (quoting Cox, supra, 335
N.J. Super. at 483). The Coxes had been married for twenty-two
years, a circumstance clearly removing any possibility of a
limited duration alimony award. Cox, supra, 335 N.J. Super. at
483. In J.E.V., supra, we reviewed the trial judge's rejection
of the plaintiff's request for permanent alimony in favor of an
award of limited duration alimony following an almost ten-year
marriage. 426 N.J. Super. at 480-81.
Assessing the facts here, the trial judge correctly
identified this marriage's length as "not short-term." He
further acknowledged plaintiff would be unable "to maintain the
marital lifestyle without alimony now and probably not for some
time[.]" Nevertheless, he concluded, consideration of an award
of permanent alimony was obviated by the parties' relatively
25 A-3582-10T1
young ages and the fact that they were not married long enough —
commenting theirs was not a twenty-five to thirty-year
relationship. This conclusion was error and must be reversed.
Contrary to the judge's belief, permanent alimony awards
are not reserved solely for long-term marriages of twenty-five
to thirty years. While marital relationships of such duration,
when coupled with a created economic dependence by one party,
typically result in permanent alimony awards, there is no per se
rule that permanent alimony is unwarranted unless the twentieth
anniversary milestone is reached. Moreover, any attempt to
reduce the shared marital experience to a formulaic calculation
of compensation based on the number of years "in the marriage,"
completely disregards the public policy considerations
supporting continuation of economic support beyond the spouses'
joined personal lives.
Although "[c]ourts must consider the duration of the
marriage" when fixing alimony, "the length of the marriage and
the proper amount or duration of alimony do not correlate in any
mathematical formula." Lynn v. Lynn, 91 N.J. 510, 517-18
(1982). The Legislature's confining limited duration alimony
awards to those "shorter-term marriages," where the facts make a
permanent alimony award "inappropriate or inapplicable,"
reinforces this concept. J.E.V., supra, 426 N.J. Super. at 485-
26 A-3582-10T1
86 (internal quotation marks and citations omitted) (emphasis
added).
We do not intend to draw specific lines delineating "short-
term" and "long-term" marriages in an effort to define those
cases warranting only limited duration rather than permanent
alimony. We also underscore it is not merely the years from the
wedding to the parties' separation or commencement of divorce
that dictates the applicability or inapplicability of permanent
alimony. Nevertheless, we do not hesitate to declare a fifteen-
year marriage is not short-term, a conclusion which precludes
consideration of an award of limited duration alimony.
A dependent spouse's age alone also cannot obviate
permanent alimony. See Robertson v. Robertson, 381 N.J. Super.
199, 207-08 (App. Div. 2005) (finding thirty-nine-year-old woman
who surrendered employment opportunities was entitled to
permanent alimony after a twelve-year marriage). Admittedly, a
spouse's youth, along with prior education and skills, may tip
the scale toward a lesser amount of alimony based on the
prospects of viable future employment. But youth is merely one
factor weighed in the alimony calculus.
All facts regarding each unique marital partnership must be
evaluated when considering evidence regarding a claim of
economic dependence warranting long-lasting support. Compliance
27 A-3582-10T1
with the statute is not accomplished by a listing of facts.
Rather, the statute mandates an analysis of the relationship of
these facts, culminating in an assessment of their respective
importance. For example, when considering the applicability of
a permanent alimony award, the length of the marriage and the
parties' ages are finite facts that must be considered.
N.J.S.A. 2A:34-23b(2)(3). However, the statute's enumerated
considerations implicate other aspects of the marital
relationship that also must be weighed. These include factors
such as the duration and cause of the claimed economic
dependence; sacrifices made to assure the non-dependent spouse's
financial success; whether the dependent spouse's return to
full-time employment causes disruption to the needs of the
children; and the nature and extent of the dependent spouse's
predicted financial independence, measured against the non-
dependent spouse's continued ability to provide financial
assistance.
In this matter, facts relevant to plaintiff's request for
permanent alimony are many. A significant relevant fact is her
monthly budget, representing the marital standard of living of
$18,000 per month, or $216,000 per year. This amount was found
to represent an "upper-middle-class" marital standard of living,
which was more modest than current earnings would be able to
28 A-3582-10T1
maintain. Nevertheless it is an amount plaintiff cannot achieve
independent of defendant's support.
Also, for more than two-thirds of the marriage, plaintiff
functioned as the primary caretaker for the children and
homemaker for the family, foregoing any earning capacity and
professional success she may have achieved during this period.
She had not worked since 1999. She initially left employment
largely because the parties decided their two children,
separated in age by only a year, needed her care and attention.
Thereafter, plaintiff was the homemaker and primary caretaker
for the parties' three children.
Under the divorce judgment, defendant's parenting time was
set as every other weekend and, when he was able, dinner on
Wednesdays. Plaintiff, on the other hand, continued to bear the
lion's share of parenting responsibilities for their three minor
children. The parenting time schedule permits defendant to
continue his professional endeavors, substantially free of daily
child rearing concerns, such as assisting with homework,
planning and preparing meals, scheduling activity, and shopping
for the children's needs.
Undoubtedly, plaintiff is intelligent, educated, and
capable of professional employment, but under any conceivable
scenario, her re-employment requires retooling before reentry
29 A-3582-10T1
into the job market. Further, it is unrealistic to assume
plaintiff could generate earnings sufficient to maintain the
determined marital standard of living. Expert testimony,
credited by the judge, estimated plaintiff's return to the
computer field could, after a few years, eventually result in
earnings of $115,000. This is a far cry from the marital
standard of living calculated by the court, necessitating
$216,000 net per year. Thus, the record does not support that
plaintiff would be able to resume working and earn an amount to
sustain herself in a manner approaching that which the parties
created and enjoyed during the marriage.
Throughout the marriage, defendant pursued his career,
uninterrupted by responsibilities of bearing and caring for
children. His intelligence, drive, and abilities have allowed
him to achieve notable professional success, which is
accompanied by significant remuneration. The surge in his
earnings and the accompanying increase in the marital standard
of living began in the latter third of the marriage, with his
employment at Deutsche Bank in 2003. He is fortunate, as there
is no contesting the fact he can, without sacrifice, support
plaintiff and the children, as well as himself in accordance
with the marital standard of living.
30 A-3582-10T1
Each of these considerations must be weighed when
considering plaintiff's request for permanent alimony.
Following our review, we conclude the judge, however,
incorrectly evaluated the evidence, primarily rejecting
permanent alimony because of the misconception that a fifteen-
year marriage would not support a permanent alimony award. This
legal error permeated his overall consideration of other
statutory factors, resulting in an impermissibly conclusory and
cursory analysis. See Carter v. Carter, 318 N.J. Super. 34, 42
(App. Div. 1999) (criticizing trial judge's failure to adhere to
statutory mandate of N.J.S.A. 2A:34-23b).
We conclude the trial judge failed to fully assess all
evidence regarding the fifteen-year marital enterprise,
including plaintiff's inability to achieve something close to
the marital standard of living in the future, without the
benefit of defendant's economic assistance. The failure to
adhere to the statutory obligation to "make specific findings on
the evidence about [all] the above factors[,]" N.J.S.A. 2A:34-
23c, was error. Accordingly, the award of limited duration
alimony is reversed and the matter is remanded for an evaluation
of an award of permanent alimony. See Gotlib v. Gotlib, 399
N.J. Super. 295, 309 (App. Div. 2008) (providing if a "court
31 A-3582-10T1
ignores applicable standards, we are compelled to reverse and
remand for further proceedings").
B.
Plaintiff next argues the judge abused his discretion in
averaging the parties' expenses over several years when
computing the marital lifestyle and plaintiff's needs. She
suggests the judge's calculations "perpetuate the impoverishment
of the dependent spouse." We are not persuaded.
We reject plaintiff's suggestion that the marital standard
of living, as used in N.J.S.A. 2A:34-23b(4), is defined by the
dollar amount of expenses incurred immediately prior to filing
for divorce. The "standard of living enjoyed during the
marriage" is a concept that certainly includes objective
criteria, such as the actual amount spent for mortgages, real
estate taxes, car payments, and food expenses. However, it
also encompasses more subtle components such as the intervals
between car purchases, whether there has been a preference for
new or pre-owned vehicles, and the frequency of and nature of
restaurants when dining out.
This record reflects the trial judge's keen awareness of
all aspects of the parties' standard of living. He stated the
parties lived well, but not extravagantly, and spent less than
what defendant's salary suggested could be afforded. He
32 A-3582-10T1
accepted much of plaintiff's claimed budget, though reduced to
disallow certain inflated or inapplicable expenses. The judge's
assessment of the substantial, credible evidence resulted in a
reduction from plaintiff's asserted monthly expenses of $21,041
to the $18,000 budget the judge found to more accurately
reflected expenses.
Further, the judge fully assessed plaintiff's needs in
reaching his findings. The judge understood plaintiff's CIS
budget addressed the needs of plaintiff and the children, and
did not include a reserve for income taxes or savings. We
determine that once the children's needs, satisfied by the basic
and supplemental child support awards, are removed, the monthly
sum awarded sufficiently includes estimated income taxes.
However, we cannot discern from the opinion what findings
and conclusions were drawn regarding plaintiff's requested
savings component, supported by Fernandez's testimony, which
opined on the level of savings by the parties over the last four
years. Indeed, a court may design an award sufficient to permit
the supported spouse to bolster his or her savings to "protect
. . . against the day when alimony payments may cease" due to
the supporting spouse's death or other change in circumstances.
Khalaf v. Khalaf, 58 N.J. 63, 70 (1971) (citation omitted).
33 A-3582-10T1
"Trial judges are under a duty to make findings of fact and
to state reasons in support of their conclusions." Heinl v.
Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (citing R. 1:7-
4). "'Meaningful appellate review is inhibited unless the judge
sets forth the reasons for his or her opinion.'" Strahan v.
Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting
Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). On
remand, we direct the judge to review and make findings
regarding N.J.S.A. 2A:34-23b(8), which requires alimony awards
take into consideration "the opportunity for future acquisitions
of capital assets and income[.]" The court must clearly set
forth factual findings and legal conclusions for the benefit of
the parties and to aid appellate review. See R. 1:7-4(a)
(denoting a trial court's obligation to make findings of fact
and state conclusions of law following hearings resulting in
orders appealable as of right).
C.
Plaintiff argues the court erred in imputing income to her
of $65,000 per year. Further, the judge "unfairly" concluded
she had "done nothing" pendente lite to obtain employment, and
erred in immediately imputing this level of earnings, without
allowing any period for retraining and workforce reentry.
Although we would have preferred more detailed factual findings
34 A-3582-10T1
regarding imputed income, we cannot agree the income imputation
or its amount was erroneous. However, we must remand regarding
the effective date of imputation, as there is no evidence to
support the court's conclusion plaintiff could immediately
commence earning $65,000 per year.
In computing alimony, "[i]ncome may be imputed to a party
who is voluntarily unemployed or underemployed." Golian v.
Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (citation
omitted). "Imputation of income is a discretionary matter not
capable of precise or exact determination but rather requiring a
trial judge to realistically appraise capacity to earn and job
availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App.
Div. 2004) (citation omitted). A trial judge's determination in
this regard will not be disturbed absent an abuse of that
discretion. Robertson, supra, 381 N.J. Super. at 206.
In deciding if income should be imputed, the court must
determine "whether the [spouse] has just cause" for voluntarily
remaining unemployed or underemployed. Caplan v. Caplan, 182
N.J. 250, 268 (2005). In assessing just cause, the court should
assess factors such as the ages of the children and "the reason
and intent for the voluntary underemployment or unemployment[.]"
Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A,
Comment 12, at 2551 (2013).
35 A-3582-10T1
Here, the judge properly performed this analysis. Although
plaintiff had been absent from the workforce for many years, she
retains the obligation to contribute to her support. Both when
setting child support and in reaching a proper alimony award, a
judge must examine not only each party's income, but also his or
her earning ability. See Lynn v. Lynn, 165 N.J. Super. 328,
341-42 (App. Div.) (noting earning capacity or prospective
earnings are proper elements for the court's consideration when
determining the amount of alimony to be paid), certif. denied,
81 N.J. 52 (1979).
Relying on the experts' opinions and plaintiff's past
achievements, education, and experience, the judge concluded
plaintiff's employment as a computer programmer would result in
a salary between $61,200 and $94,000. He chose to impute income
toward the lower end of this range, $65,000, understanding time
had elapsed since plaintiff last performed the tasks of this
job. We conclude the substantial, credible evidence in the
record supports this finding, which will not be disturbed.
Cesare, supra, 154 N.J. at 412.
We also reject as unfounded plaintiff's argument that the
judge should have imputed income based on plaintiff's plans to
become a teacher, rather than a computer programmer. Imputation
must be based on earning capacity, not employment desires.
36 A-3582-10T1
Plaintiff remains free to pursue her dreams as "[a]ny party is
free to retire, take a vow of poverty, write poetry or hawk
roses in an airport, if he or she sees fit." Deegan v. Deegan,
254 N.J. Super. 350, 358-59 (App. Div. 1992). However, she may
not shed her obligations to contribute as best she is able to
her support and that of her children. Ibid.The record, however, does not support the judge's finding
plaintiff had "voluntarily chosen not to become employed" by
failing to obtain employment or retraining pendente lite. We
are aware of no authority mandating a dependent spouse, absent
from the workforce, by agreement, for a significant period of
time, to immediately prepare for and return to work pendente
lite, absent notice of this expectation presented by motion or
court directive. We are not suggesting able spouses do not hold
a responsibility to support themselves; we are only finding
there is no support in this record for the judge's conclusion
resulting in the immediate imputation of $65,000 annual income.
Both employability experts agreed plaintiff needed a period
of retraining before she would be able to secure employment.
Plaintiff had not worked in ten years and her past skills were
stale. Plaintiff's lack of outside employment over this period
in part resulted from the need to care for three children, and
likely was reinforced by defendant's financial success.
37 A-3582-10T1
Beginning in 2007, defendant's total annual compensation topped
$1 million. Also, in 2006, plaintiff underwent brain surgery.
Moreover, the issue of plaintiff's return to work was never
broached pendente lite. The pendente lite record contains no
request by defendant for plaintiff's resumption of employment,
and there are no orders mandating she secure retraining or
allocating funds to enable her to seek training or "prepare
herself to re-enter the workforce," as the trial judge found she
neglected to do.
Overall, we do not view these facts as obviously presenting
a mandate for plaintiff's resumption of employment pendente
lite. Unlike a short-term marital relationship, one where both
parties had continuously worked but one suddenly stopped, or one
where the parties had no children and their needs could not be
sustained solely by one working spouse, the facts here do not
suggest the parties themselves anticipated an immediate
resumption of employment by the dependent spouse. Rather, these
facts strongly suggest the parties held no expectation plaintiff
should immediately return to work.
This determination does not diminish plaintiff's ultimate
responsibility, and we agree the obligation to contribute to her
own and the children's support has been satisfactorily shown.
We conclude, however, the judge abused his discretion by
38 A-3582-10T1
immediately imputing a prospective salary attainable only upon
retraining, as no evidence supports the finding plaintiff
ignored her pendente lite responsibilities to obtain work. This
portion of the judgment is reversed. On remand, the effective
date of imputation must be made based on the evidential record,
after consideration of the time and cost for plaintiff's
retraining.
D.
Next, both parties challenge the amount awarded for child
support: plaintiff argues the award was too low, and defendant
argues it was too high. The lack of meaningful factual findings
requires this issue also be reexamined.
Initially, the court calculated a basic support award,
using the Child Support Guidelines (guidelines), R. 5:6A, of
$501 per week. The judge further ordered a supplemental award
of $25,000 per child per year, from which the maximum allowable
federal gift tax exclusion was to be deposited into each of the
children's existing UGMA for higher education, and the balance
remitted to plaintiff in equal monthly installments.
Following plaintiff's post-judgment motion, an error in the
basic child support calculation was identified and corrected to
$997 per week. The court then adjusted the supplemental award,
reducing it to $1600 per month, or $19,200, presumably per child
39 A-3582-10T1
per year. Plaintiff agrees the amount of the supplemental award
should have been modified after correction to the base
guidelines amount. However, she claims an abuse of discretion
occurred because total support was reduced and the supplemental
support was restricted to require deposit into the children's
UGMA accounts, absent the parties' agreement otherwise.
Plaintiff seeks unrestricted control of the entire supplemental
child support award.
Defendant argues the child support exceeds what is
necessary to meet the family's lifestyle, and the basis for the
amount of the supplemental award was not sufficiently stated,
making it unfounded. Also, he argues, following the correction,
child support was increased by $8392 per year, without
explanation.
Even though a supplemental support amount in addition to
the guideline's base amount is authorized because of the
parties' high level of income, the judge must identify the
nature of the children's supplemental needs to be satisfied by
the supplemental support awarded. See Caplan, supra, 182 N.J.
at 272 (noting that the trial court may take any reasonable
approach in arriving at an appropriate award); Strahan, supra,402 N.J. Super. at 309-10 (same). We reject claims that the
judge improperly considered the parties' past practice of
40 A-3582-10T1
funding the children's anticipated higher education costs
through annual deposits into the UGMA accounts. See Strahan,
supra, 402 N.J. Super. at 311 (criticizing an above-guidelines
child support award absent evidence of some "marital standard"
regarding "the way the parties treated the children"). We
merely require the court to express those needs, in addition to
the annual past practice of saving for the children's education,
to be satisfied by the supplemental support award.
Following our review, we agree necessary factfinding to
sustain the supplemental support award must be enhanced. The
judge must explain how the amount of the supplemental award was
calculated, and the circumstances considered in restricting an
amount designated for deposit into the UGMA accounts. Finally,
the judge must explain why the total support amount changed,
after it was corrected to comply with the guidelines.7
We generally reject defendant's argument that the basic
child support amount was too high in light of the court's
findings regarding the family's budget. The $18,000 per month
needs did not include the tax obligation associated with
plaintiff's alimony receipt. 26 U.S.C.A. § 71(a) (stating
"[g]ross income includes amounts received as alimony"). We
7
Our calculations align with defendant's, such that the
total of all support — basic and supplemental — increased by
$8392 per year.
41 A-3582-10T1
reject as specious defendant's contention the total alimony and
child support receipts exceeded plaintiff's budget.
Nevertheless, based on our conclusions regarding the need to
review the alimony award, we note that if the amount of alimony
is adjusted, the amount of basic child support must be
recomputed.
E.
In her final points, plaintiff argues the court abused its
discretion in: (1) awarding her one-half of the remainder of
defendant's 2007 cash bonus paid in 2008, as support, rather
than granting her allocable share as equitable distribution; and
(2) concluding she received her interest in defendant's 2008
bonus as pendent lite support. Plaintiff also urges
modification of the division of the 2009 income tax refunds.
Pendente lite, the motion judge ordered an equal
distribution of the funds remaining from the 2007 cash bonus, in
lieu of immediately calculating defendant's monthly support
obligation. The dispute centered on whether the bonus received
and deposited into the joint checking account was an asset
subject to equitable distribution, for which plaintiff's
entitlement was distinct. Plaintiff maintains allowing use of
the monies to satisfy defendant's pendente lite support
42 A-3582-10T1
obligations was legal error. She argues defendant retained his
base salary and half of his bonus and did not pay support.
Shortly after the gross bonus of $766,507 was received in
February 2008, the complaint for divorce was filed and pendente
lite requests were considered. Because the court divided the
balance of the monies held in the checking account to satisfy
pendente lite support, plaintiff states she exhausted her share
of the asset to meet ongoing household expenses that should have
been provided by defendant's current income. On the other hand,
defendant was not only freed from paying pendente lite support,
but also retained his salary and his share of the asset for his
own use and enjoyment.
Following trial, the judge did not consider this issue,
though it had been reserved for final determination in the
pendente lite order. On remand, the treatment and allocation of
the 2007 bonus paid in February 2008 must be considered.
As for the 2008 bonus, the judge determined the amount
subject to equitable distribution was limited to the period of
the marriage, ending upon the initiation of the divorce action.
The complaint was filed on March 10, 2008, so plaintiff's one-
half interest in the sum earned between January 1, and March 10,
2008, was calculated as $108,300. The judge then concluded,
"whatever amount was due [plaintiff] from the 2008 bonus ha[d]
43 A-3582-10T1
been more than offset by the more than two years of tax[-]free
payments, both lump sum and periodic, [she] ha[d] received
during the pendency of the divorce action[,]" computed to
average approximatly $22,000 per month.
At trial, defendant argued he negotiated his bonus, paid in
February 2009, at the time of his promotion in May 2008 — two
months following plaintiff's filing for divorce. The trial
judge's opinion does not make specific credibility findings, but
the inference to be made from the decision is that the judge
accepted defendant's testimony regarding his negotiation of the
2008 bonus. The record contains no contrary information. On
appeal, plaintiff urges a different treatment of the bonus
funds, baldly asserting the bonus amount resulted from "the
momentum and impact of the marriage." We reject this
proposition as without evidential support, and decline to alter
the judge's findings and conclusions.
Plaintiff lastly argues she held an entitlement to refunds
resulting from the parties' joint 2009 state and federal tax
returns. During the post-judgment reconsideration motions,
defendant sought retention of the refund because plaintiff had
no taxable income. The judge agreed. On appeal, plaintiff
suggests defendant's proofs were insufficient to support the
44 A-3582-10T1
result. We conclude the argument lacks sufficient merit to
warrant discussion in our opinion. R. 2:11-3(e)(1)(E).
F.
In his cross-appeal, defendant attacks the order to pay
plaintiff's counsel fees and challenges the amount of life
insurance he was ordered to provide. We disagree the judge
abused his discretion by ordering defendant to satisfy the
balance of plaintiff's outstanding attorney's fees and costs.
We determine, however, a factual error occurred in the review of
the life insurance issue, necessitating reversal and remand.
1.
Fees in family actions are normally awarded to permit
parties with unequal financial positions to litigate on an equal
footing. A counsel fee award is left to the sound discretion of
the trial court, after consideration of the factors identified
in Rule 5:3-5(c). We will disturb a trial court's determination
of a counsel fee award "only on the rarest occasions, and then
only because of a clear abuse of discretion." Rendine v.
Pantzer, 141 N.J. 292, 317 (1995).
Here, the judge properly and carefully considered all
applicable factors and exercised reasonable discretion in
ordering defendant to pay the balance of plaintiff's
45 A-3582-10T1
outstanding counsel fees. We identify no basis to set aside
that order.
2.
The final issue raised in defendant's cross-appeal focuses
on his obligation to retain life insurance to secure his support
obligations. See N.J.S.A. 2A:34-25 (providing authority for
requiring life insurance as security for an alimony or child
support obligation). The judge denied defendant's motion for
reconsideration seeking to annually reduce the amount of
insurance designed to guarantee alimony, apparently because he
misunderstood the motion. In denying the motion, the judge
stated, "[defendant]'s application that [plaintiff] maintain
life insurance in the amount of $500,000 per each of the three
children until a child is emancipated misses the fact that he is
the dominant income earner and supporting parent."
This issue too is subject to review on remand. First,
defendant's request on reconsideration was not addressed.
Second, an allocation of the total amount of life insurance
between plaintiff and the children must be made. The ambiguous
requirement that plaintiff be named a beneficiary "to the extent
of her interest" cannot stand.
46 A-3582-10T1
IV.
In summary, we reverse the order of limited duration
alimony and remand for consideration of an award of permanent
alimony. Regarding this issue, we affirm the calculations
fixing the marital lifestyle, except with respect to the issue
of savings. The judge must consider plaintiff's budget request
and provide specific findings and conclusions on this issue.
The determination to impute income to plaintiff is affirmed.
However, we reverse as to the commencement of income imputation.
On remand, the judge must consider the time and money necessary
for plaintiff to update her skills to enable her to obtain
employment at the level so imputed. The basic child support
amount is affirmed, subject to recompilation in the event of
changes in the amount of alimony. Also on remand, the judge
must articulate findings and conclusions regarding the nature of
the supplemental child support award and must analyze the basis
for restriction of a substantial portion of that award. We
affirm the determination regarding the 2008 bonus and remand for
findings and conclusions on the distribution of the 2007 bonus.
We affirm the determination regarding the 2009 income tax
refund. On the cross-appeal, we affirm the award of counsel
fees. We remand for clarification of defendant's life insurance
obligations. The judge must consider defendant's request to
47 A-3582-10T1
annually reduce the life insurance component securing his
alimony obligation and specifically allocate the amount of life
insurance between plaintiff and the children.
Affirmed in part, reversed in part, and remanded. We do
not retain jurisdiction.
48 A-3582-10T1