On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County.
Approved for Publication February 14, 1996.
Before Judges King, Kleiner and Humphreys. The opinion of the court was delivered by Kleiner, J.A.D.
The opinion of the court was delivered by: Kleiner
The opinion of the court was delivered by KLEINER, J.A.D.
Defendant James Heinl appeals numerous provisions of a final judgment of divorce, including alimony, child support, attorney's fees, and equitable distribution. Although several of the issues raised by defendant in this appeal are without merit, we find that there were errors in the court's decisions respecting alimony, counsel fees, and equitable distribution. In our partial reversal, we are called upon to evaluate anew the concept of rehabilitative alimony.
Plaintiff Lena Heinl and defendant James Heinl were married on November 17, 1984. They had two children: Jennifer, born December 26, 1985, and Michael, born June 19, 1987. The parties separated in July 1992, when defendant moved from the marital residence in Milford. Plaintiff filed her complaint for divorce on April 16, 1993. A judgment of divorce was entered on August 4, 1994 and incorporated the terms delineated in a written opinion of the trial Judge.
Plaintiff, a high school graduate, also graduated from secretarial school. She worked full-time prior to the birth of the eldest child and returned to part-time secretarial work in June 1992, one month prior to the parties' separation. At the time of the divorce hearing, plaintiff worked fifteen hours per week for a realtor, at $10.50 per hour, earning $130 net income per week. On an as-needed basis, approximately four times per month, plaintiff also worked for another company earning $13.50 per hour. In 1993, plaintiff earned $8,861 in gross income.
Defendant is a general foreman in Local 475 of the Pipefitters and Steamfitters Union. For the past eight or nine years, he has worked steadily for the same company. In 1990, he grossed $61,000; in 1991 he grossed $62,000; in 1992 and 1993 he grossed $73,000. Defendant's gross income each year included overtime pay. *fn1
When the parties separated, they had two bank accounts worth about $16,000. They also owned a home, automobiles, and various household goods and furnishings. Defendant testified that upon separating, he left in the bank accounts $7,000 for plaintiff. However, he admitted that he then withdrew an additional $1,000 from the accounts to pay a joint $2,500 credit card debt.
Defendant had ten percent of his pay deposited into a vacation fund" maintained by his employer. Traditionally, the parties used this money to buy furniture or make home repairs. In April 1993, the vacation fund contained $6,200. Defendant withdrew that money and furnished a new residence for himself, paid outstanding marital bills and purchased a boat.
On August 1, 1994, the trial Judge issued a written opinion. The Judge's findings were incorporated within the terms of the divorce judgment which: (1) granted plaintiff sole legal custody of the children; (2) set defendant's child support obligation at $370 per week; (3) ordered defendant to maintain life insurance coverage of $150,000 for the benefit of the children; (4) ordered defendant to pay plaintiff $125 per week permanent alimony; (5) permitted plaintiff to remain in the marital home and awarded her the right to mortgage and real estate tax deductions; (6) awarded plaintiff all of the personal property and possessions in the marital home; (7) ordered defendant to pay plaintiff one-half of the "vacation fund" money ($3,100) and one-half of the value of the boat ($1,150); (8) ordered defendant to pay $15,637.77 of plaintiff's counsel fees; and (9) ordered that plaintiff could claim the children as dependents until she became employed full-time and then the parties would share the deduction.
On appeal, defendant contends that plaintiff was not entitled to an award of alimony. Alternatively, he contends that plaintiff exaggerated her expenses within her case information statement and that the Judge therefore miscalculated the alimony award.
In a divorce action, courts may award alimony "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just . . . ." N.J.S.A. 2A:34-23. The basic purpose of alimony is the continuation of the standard of living enjoyed by the parties prior to their separation. Innes v. Innes, 117 N.J. 496, 503, 569 A.2d 770 (1990) (citing Mahoney v. Mahoney, 91 N.J. 488, 501-02, 453 A.2d 527 (1982)). The supporting spouse's obligation is set at a level that will maintain that standard. Id. at 503 (citing Lepis v. Lepis, 83 N.J. 139, 150, 416 A.2d 45 (1980)).
Factors to be considered in setting permanent or rehabilitative alimony include: (1) the actual need and ability of the parties to pay; (2) the duration of the marriage; (3) the age, physical and emotional health of the parties; (4) the standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living; (5) the earning capacities, educational levels and employability of the parties; (6) the length of absence from the job market and custodial responsibilities for children; (7) the time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to obtain appropriate employment; (8) the history of financial and non-financial contributions to the marriage by each party; (9) the equitable distribution of property ordered and any pay-outs on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair; and (10) any other factors which the court may deem relevant. N.J.S.A. 2A:34-23(b)(1)-(10). One additional factor that has been considered in determining the amount and duration of support is the extent of actual economic dependency. Lepis, supra, 83 N.J. at 155.
To vacate a trial court's finding concerning alimony, we must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole. Rolnick v. Rolnick, 262 N.J. Super. 343, 360, 621 A.2d 37 (App. Div. 1993). Moreover, substantial weight must be given to the Judge's observations of the parties' demeanor, comprehension and speech and to the fact that the trial Judge had the distinct advantage of observing the demeanor of the witnesses and a better opportunity to Judge their credibility than a reviewing court. Ibid.
In his written opinion, the trial Judge outlined the needs of the plaintiff predicated upon her testimony and the information provided in her case information statement. The court reduced the total sum plaintiff claimed she would require to maintain the standard of living enjoyed during the marriage. The reduction was based upon defendant's cross-examination, which revealed that plaintiff's itemized expenses were speculative and in many respects ...