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Boardman v. Boardman

August 12, 1998

STEPHEN BOARDMAN, PLAINTIFF-APPELLANT,
v.
ELAINE BOARDMAN, DEFENDANT-RESPONDENT.



Before Judges Keefe, P.g. Levy and Wecker.

The opinion of the court was delivered by: The opinion of the court was delivered by Wecker, J.A.D.

[9]    Submitted April 7, 1998

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County.

Plaintiff, Stephen Boardman, appeals from several provisions of a divorce judgment, specifically, the amount of permanent alimony to be paid by defendant, Elaine Boardman; automatic termination provisions with respect to alimony; and terms of joint custody and related counseling provisions. Plaintiff also appeals from the order denying his claim for counsel fees and expert's fees. *fn1 We affirm the custody and counseling provisions, but reverse and remand for reconsideration the issues of alimony and counsel and expert fees. We also reverse the automatic termination-of-alimony provisions.

We shall not repeat the facts at length. However, we note that the parties were in their mid-forties when they divorced after a twenty-three year marriage that produced three children, who at the time of trial were 12, 10, and 5 years of age. Defendant is and always has been the wage earner, and the parties lived an upper middle class lifestyle. The Judge found that defendant's earnings as the chief executive officer of Patient Care, Inc., were $275,000 per year, composed of salary plus bonuses, and exclusive of stock awards, stock options, 401K matching provisions, and other benefits.

Plaintiff has never earned more than token income, although he has graduate degrees in history from Columbia University, and in reading from Montclair State College (now University). Plaintiff has suffered for years from a serious depressive illness and has been diagnosed as "Bipolar II" with some underlying additional mental illness. He has been suicidal in the past, and has never been able to take full responsibility for the children, for whom defendant has hired a full-time babysitter. At the time of trial the Judge recognized that plaintiff's earnings were less than $5,000 per year as an adjunct college teacher, although for several years he had worked essentially full-time as a volunteer at the children's cooperative nursery school.

Defendant voluntarily assumed the full and substantial cost of providing for the children, paying their private school tuition, maintaining the household, and maintaining medical insurance for the children and herself. Child support is not at issue in this appeal.

Plaintiff received a total of $158,000 in liquid assets by way of equitable distribution. Defendant received an equal amount, though not all in liquid form. With respect to the terms of custody, the parties agreed that defendant would be the residential custodian. The only custody question raised at trial was the characterization of plaintiff's custodial relationship.

We first address alimony. After imputing to plaintiff $20,000 in annual income and setting his needs at $42,000, the trial Judge reduced the $39,000 pendente lite alimony award to $2,000 per month as permanent alimony. The Judge found plaintiff's case information statement budget of $80,000 to be inflated and denied plaintiff's request to continue the pendente lite provision for medical insurance and an automobile lease at defendant's expense. The Judge did order defendant to maintain a $200,000 life insurance policy for plaintiff's benefit as security for 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 (1990) (citing Mahoney v. Mahoney, 91 N.J. 488, 501-02 (1982)). The supporting spouse's obligation is set at a level that will maintain that standard. Innes, supra, 117 N.J. at 503 (citing Lepis v. Lepis, 83 N.J. 139, 150 (1980)).

The Legislature has established the factors to be considered in setting permanent or rehabilitative alimony:

(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 ...


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