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Crews v. Crews

May 31, 2000

ROBERT B. CREWS, JR.,
PLAINTIFF-RESPONDENT,
V. BARBARA D. CREWS,
DEFENDANT-APPELLANT.



The opinion of the court was delivered by: LaVECCHIA, J.

Argued February 1, 2000

On certification to the Superior Court, Appellate Division.

Defendant, Barbara Crews, seeks review of the denial of her motion for modification of a rehabilitative alimony award. Her motion sought to reinstate and increase alimony from $800 to $3500 per month, and to convert the increased amount to permanent alimony. In this appeal, she seeks reexamination of the concept of "changed circumstances" justifying a modification to an alimony award.

Two decades ago in Lepis v. Lepis, 83 N.J. 139 (1980), we reviewed the standards and procedures for modifying support and maintenance awards after a final judgment of divorce. The Lepis standards and procedures have stood the test of time well. In this matter, we reaffirm the Lepis principle that the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage. The importance of establishing the standard of living experienced during the marriage cannot be overstated. It serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award when "changed circumstances" are asserted.

This case illustrates the pitfalls associated with the failure to establish the marital standard of living. The initial divorce decree failed to set forth the standard of living established during the Crews' marriage. Without this information, defendant's motion for modification could not be properly analyzed. And, naturally, that same flaw permeates the initial alimony decision. Thus, we have no assurance that either the initial alimony award, or the subsequent motion to modify alimony, was judged in accordance with the proper standard. That standard is: whether the supported spouse can maintain a lifestyle that is reasonably comparable to the standard of living enjoyed during the marriage. If the supported spouse cannot, and if the supporting spouse's financial condition permits, a modification to the support award is appropriate and warranted.

Typically, we would not at this late date revisit an issue that should have been resolved initially at trial or on appeal. However, basic fairness requires that we act to remedy this lack of essential fact-finding in order to be assured that Mrs. Crews' motion for modification of her alimony award is evaluated properly now.

I.

Plaintiff Robert Crews and defendant were married in 1977 and separated in 1991. A final judgment of divorce was entered on June 6, 1994. Two children were born of this marriage, both of whom resided with defendant after the divorce.

The Crews' divorce trial was listed for April 11, 1994. Twelve adjournments were granted prior to that date. Issues relating to plaintiff's income and the value of his closely held corporation were hotly disputed throughout discovery. On April 11, Mrs. Crews' attorney requested a thirteenth adjournment. In part, that request was a result of the court's denial of defendant's motion for pendente lite counsel fees, which defendant asserts contributed to the delay in completing discovery. The trial court denied the adjournment request and ordered the case to proceed.

The trial began the next day. Mrs. Crews' attorney informed the court that he and his client would not participate in the proceedings. After the lunch break, Mrs. Crews and her attorney left the courtroom and the proceedings continued on a default basis. On April 29, 1994, the trial court issued a written opinion outlining the monetary obligations of each party. Issues relating to equitable distribution were detailed in the divorce judgment. They reflect the degree of dispute over the value of plaintiff's business. Defendant received in value $513,000 of non-business assets under equitable distribution, the bulk of which was the marital home, valued at $415,000. She also received $91,490 as her share of business assets, which plaintiff was required to pay to defendant over a six-year period with interest at 8% per annum. Although expert reports prepared by defendant's experts were admitted into evidence, it appears that the court relied primarily on the testimony of Mr. Crews, as well as Mr. Crews' expert's report and the report of the court-appointed expert, in reaching its conclusions.

Concerning alimony, the court's award was contained in a single paragraph:

Commencing May 1, 1994, [the plaintiff] shall pay to the [defendant] the sum of $800.00 per month as alimony for a period of three (3) years.

The trial court opinion constitutes the sole source for ascertaining the court's reasoning for the alimony award. The court noted that factual findings relevant to the alimony analysis were derived from the testimony of Mr. Crews, as well as from two experts who reached conclusions concerning the cash- flow evaluations of Mr. Crews' business. The court then stated in a conclusory fashion that Mr. Crews was in a "superior earning position" because the earnings available for support "may approach $150,000 to $175,000 per year."

Mrs. Crews' financial position also was examined in tailoring the alimony award. The court found that Mrs. Crews could earn approximately $18,000 per year from her job at a clothing store, so long as she went from working part-time to full-time at the job, which then paid $8.50 per hour, because "there is no reason proffered by [Mrs. Crews] not to contribute toward her own support and make some contribution toward raising her children." The court found that if Mrs. Crews worked full- time and earned $18,000 per year, and in addition received child support and alimony that totaled $27,600, she could meet her expenses. The court also expressed the belief that Mrs. Crews could increase her earnings to approximately $26,000 per year, rather than the $18,000 per year imputed to her at the time of the divorce.

Neither the opinion nor the final divorce judgment contains an analysis of the Crews' marital standard of living. The absence of that fact-finding is unexplained. However, we note that the record shows relevant information was available. At the time of trial of the divorce action, defendant's Case Information Statement (CIS) contained two columns of financial information regarding monthly expenses. One column contained a breakdown of expenses for defendant and the parties' two children. A second column contained the monthly expenses incurred to support the parties' standard of living during the marriage. Many of the items asserted as representative of the marital lifestyle were suggestive of a lavish standard of living. The detailed expenses included a vacation home on Martha's Vineyard, ownership of a sailboat, membership in a yacht club, multiple vacations per year, and several hundred dollars in entertainment and dining expenses per month. Mrs. Crews contended that these marital expenses were paid for by her husband's business, Benjamin Books Inc. From our review of the opinion of the trial court, as well as the accompanying divorce judgment, it appears that the expenses in this second column were ignored. Instead, in awarding alimony and child support, the court focused exclusively on the monthly expenses for defendant and the two children.

Defendant promptly filed a post-judgment motion, seeking reconsideration of the child-support award, the alimony award, and the equitable-distribution award, as well as a stay of the child-support and alimony awards pending appeal. The trial court denied the motions in their entirety. Review of the pendente lite order reveals that Mrs. Crews received considerably more support under the temporary consent order than under the divorce decree. Under the temporary consent order, defendant received $1,600 every other week, plus additional expenses. In contrast, under the divorce judgment Mrs. Crews was awarded a flat $800.00 per month.

Defendant appealed, objecting to the terms of the divorce judgment. In addition, she argued that the trial court should not have vacated and modified an award of attorney's fees for defendant's representation. *fn1

The Appellate Division concluded that the "[t]rial court did not abuse [its] discretion in refusing to adjourn the trial for a thirteenth time, in refusing to order the immediate payment of previously ordered attorneys' fees [], or in conducting the trial without the participation of Mrs. Crews and her attorney." In affirming the alimony award, the Appellate Division found that

[t]he trial judge appropriately considered the statutory factors, N.J.S.A. 2A:34-23(b), and established an alimony award consistent with Mrs. Crews' needs as reflected on her case information statement. This decision is, of course, without prejudice to Mrs. Crews' right to seek an increase in alimony based on changed circumstances, Lepis v. Lepis, 83 N.J. 139 (1980), or the discovery of concealed assets. Von Pein v. Von Pein, 268 N.J. Super. 7 (App. Div. 1993) (emphasis added).

In contrast to its review of the alimony award, the Appellate Division held that the trial court's findings were deficient concerning the child-support award, noting that necessary fact-finding and conclusions required by Rule 1:7-4 were not provided. The matter was remanded to the trial court for the required findings, in accord with Curtis v. Finneran, 83 N.J. 563, 570 (1980). *fn2

Review of the divorce judgment and opinion indicates that the alimony and child-support awards were handled in a similar manner by the trial court. Both were resolved in conclusory fashion. The Appellate Division found deficiencies in the child- support award because the trial court's ruling lacked sufficient factual findings. Similar deficiencies in the alimony award were not addressed by the reviewing court.

During the years following the divorce, defendant worked on a regular basis, but she never was able to earn the $26,000 per year that the trial court assumed she would. Defendant maintains that from 1994 through 1996 she worked 40 hours a week for part-time pay at a retail clothing store located in close proximity to defendant's residence. From March 1996 to September 1996, she worked full-time as a manager of a coffee shop. She was then unemployed for several months. In June 1997, she obtained a trainee position, studying and attending a course to become a financial advisor with Smith Barney in the hope of achieving a position that would pay $35,000 per year. However, she could not pass the required exam despite taking it twice. Defendant then returned to her retail position part-time and also worked part-time as a non- certified substitute teacher.

Defendant maintains that the needs of her eldest child hindered her attempts to obtain full-time employment. The child began to suffer from serious depression in 1992 following the Crews' separation. She required ongoing care for her illness from 1992 through 1996, including a period of hospitalization lasting for several months during 1996. Defendant maintains in her certifications that her daughter's illness required "constant attention to keep her depression from spiraling downward."

Rehabilitative alimony ended in April 1997. Defendant filed a motion to modify the terms of the final judgment of divorce in February 1998. She sought to reinstate and increase her alimony award, and to ...


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