Before Judges Dreier, Keefe and P.g. Levy
The opinion of the court was delivered by: Dreier, P.j.a.d.
 Argued: March 31, 1998
Defendant, Marianne S. Hughes, appeals from the economic provisions of the parties' judgment of divorce. Plaintiff, Daniel J. Hughes, and defendant were married on June 11, 1983. They have one child, a daughter, born May 22, 1984. Approximately three months after the parties' tenth anniversary, plaintiff filed for divorce alleging extreme cruelty, and defendant filed a counterclaim. The divorce was entered on the basis of an eighteen-month separation. The trial Judge resolved various economic motions in a pendente lite order and established temporary support of $3000 per month for defendant and $1000 per month child support. The Judge, however, declined to order either party to pay overdue mortgage payments during the pendency of the divorce proceedings, stating that he was attempting to pressure the parties to sell the marital home. The $4300 per month mortgage payments were greater than the amounts defendant was receiving, and she contended that she could not make the payments. Plaintiff stopped making payments on the mortgage in January 1995. Defendant therefore accumulated what she could from the support payments and held these mortgage funds separately while she attempted to negotiate with the mortgagee for a partial settlement so that she could remain in the home. By the time of the divorce trial, defendant had accumulated $14,000, $12,000 of which was kept in a bag in her house. She was, however, unable to resolve the mortgage payment issue with the bank, which had placed the home in foreclosure.
The Judge tried the case commencing September 1995, and concluding on three days in March and April 1996. Although the judgment of divorce was signed August 2, 1996, the final order for custody, visitation and equitable distribution was not executed until October 1, 1996.
Prior to the parties' marriage in 1983, defendant had worked as a waitress while earning credits towards a music education degree at the Boston Conservatory of Music. Plaintiff was a commercial real estate agent at Coldwell Banker, earning $230,000 a year. He induced defendant to quit her job and obtain a real estate license. For a short time she worked as a residential real estate agent, but then quit before the parties' child was born in 1984. In October 1987, plaintiff left his job and, with two partners, formed Metro Commercial Real Estate, Inc., a corporation that functioned as a leasing agent for retail space. Initially, plaintiff owned only fifty percent of the company, but in 1990 he bought out his partners' interests and became Metro's sole shareholder. His income with Metro was initially far less than it had been with Coldwell Banker, plaintiff having received only $50,000 in the first year of Metro's operation. However, in subsequent years the business improved, so that in 1993 his adjusted gross income increased to $118,405; and in 1994 his adjusted gross income equaled $248,000, which included a salary of $114,511 with an additional nonrecurring capital gain of $74,000 from selling his share in two real estate endeavors. *fn1
The parties' lifestyle reflected plaintiff's financial prosperity. They lived in an eleven-room house with an in-ground swimming pool and had occasional domestic help. Plaintiff purchased an Audi for defendant and a Mercedes for himself. They enjoyed vacations to Disney World, Florida hotels and the Caribbean, and sailing trips to Maine, Nantucket and Newport. They dined at restaurants regularly and provided their daughter with violin, acting, gymnastics, horseback riding and skating lessons.
Although defendant initially did some work at Metro, plaintiff asked her to stop, and she became a full-time homemaker. She did, however, make a loan of $5000 to begin a property management arm of Metro. Shortly after their daughter was born, plaintiff was treated for an alcohol abuse problem, and while he was hospitalized, the household bills and mortgage fell into arrears. They survived this period with the assistance of relatives, savings, loans and defendant's management of their finances. Similarly, during the real estate recession of the late 1980's they underwent another brief period of financial difficulty. However, they maintained their lifestyle by borrowing money from plaintiff's corporation. They would then repay the money to the corporation by borrowing money on their credit cards. At the time of the parties' separation in July 1993, the outstanding credit card debt was approximately $73,000. The financial problems allegedly worsened after the separation, but defendant contends these were problems in appearance only, as is discussed infra. In April 1994, plaintiff owed $20,412 to the corporation, and by March 1996 this debt increased to $116,260. He attributed the debt to payment of $28,000 in federal and state taxes, $14,000 in interest payments, $70,000 in marital debt that was paid, and his current living expenses.
Because of their mounting debts, the parties agreed to sell the marital home. It was originally listed for $475,000, with the price gradually lowered so that at the time of trial it was listed at $399,000. Some offers were received but negotiations broke down because of the parties' dispute concerning the condition of the house, and no agreement of sale was ever executed. Defendant did not wish to lower the listing price any more, and plaintiff countered by refusing to pay the $4300 mortgage payments as of January 1995. As noted earlier, defendant's attempt to settle with the mortgagee was rejected.
Plaintiff's style of living still includes vacations, such as sailing excursions, trips to the New Jersey shore, skiing trips to the Poconos and Colorado, and a trip to San Francisco. He pays $1600 per month for a townhouse where he has domestic help, and he contributes $3000 for his daughter's summer camp, sports recreation, and theater lessons. Defendant, on the other hand, has greatly cut back her living expenses and has incurred debt to her family and friends. She has no domestic help, maintaining the house herself. In the eighteen months prior to trial, her entertainment had consisted of seeing two movies, window shopping at a mall, and an occasional meal at a restaurant. Her vacations were one overnight trip to Cape May, a two-night trip to Lake George and excursions into New York City.
The parties obtained joint custody of their daughter, with defendant designated at the primary caretaker. Defendant does not dispute the characterization that plaintiff is the daughter's caretaker forty percent of time while she is responsible sixty percent of the time.
The trial Judge agreed that defendant should be given the ability to finish her education and become a vocal instructor as she had intended prior to her marriage. *fn2 The Judge, however, placed great emphasis on the length of the marriage, the age of the parties and their physical and emotional health. He ordered rehabilitative alimony only, to be paid in the amount of $3000 per month for eighteen months retroactive to May 1, 1996, and thereafter at $2000 per month for thirty months, basing this sum upon an imputed income to defendant of $1000 per month. Thus, the total period for which defendant would receive alimony was four years. The court also ordered plaintiff to provide life insurance in the amount of $200,000 with defendant as the beneficiary until the alimony obligations ceased and an additional policy for $500,000 with the child as the beneficiary until emancipated.
Defendant was directed to transfer her interest in the marital home to plaintiff who was to remain solely responsible for deficiencies in the foreclosure action. At the time of the trial there was approximately $390,000 owed to the mortgage company (including late fees, back interest, legal fees and foreclosure fees), and as noted earlier, the last listing on the house was for $399,000. Plaintiff, however, was given all tax benefits relating to the ownership of the property.
The parties were permitted to keep their own IRA's in the approximate amount of $5000 each, and certain Service Care Center stocks were divided equally between the parties. Defendant kept her Audi, with a value of $3000, and her jewelry, which was valued at $11,000. She also retained the $14,000 which she had saved to attempt to settle with the bank on the mortgage. An income tax refund was divided one-third to plaintiff and two-thirds to defendant. A $91,000 note from plaintiff's former partners was awarded solely to plaintiff as an offset against amounts that defendant owed plaintiff for the payment of 1994 taxes. Defendant's $45,500 interest in this note approximately balanced the $45,000 due from defendant for taxes, and the Judge therefore let plaintiff retain the note payments he had received since the complaint was filed. This will be discussed infra.
The parties had agreed that a joint expert could value plaintiff's business. Although defendant disputed the valuation when it was presented at trial, she presented no contrary expert. She again contends here that the value should be considerably higher than the $115,000 determined by the joint expert. From this she was given a credit of $57,500 from which was deducted the value of the Audi and jewelry ($14,000), leaving her a net amount of $43,500. The Judge refused to divide plaintiff's interests in Sharon Hill Limited Partnership and SL-Parkway Corporation, and further concluded that defendant was responsible for thirty-five percent of the $115,432 outstanding debt, thus reducing the net amount to be awarded to her to $3000. ...