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Cox v. Cox

December 12, 2000

MARGARET M. COX,
PLAINTIFF-APPELLANT,
V.
HARRY E. COX,
DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-03-410-97.

Before Judges Baime, Carchman and Lintner.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 27, 2000

This appeal requires us to examine the scope and application of the recent amendment to N.J.S.A. 2A:34-23 providing for limited duration alimony. We conclude that the award of limited duration alimony to a spouse following a twenty-two year marriage was inappropriate and inconsistent with the statutory criteria for such an award and that permanent alimony should have been awarded. Accordingly, we reverse and remand for further consideration of plaintiff's application for that relief.

We address this narrow issue in the context of the following facts adduced during the trial. Plaintiff Margaret M. Cox and defendant Harry E. Cox were married in 1977. Their child, Heather, currently a college student, was born in 1979. In 1996, the parties separated, and a dissolution complaint was filed.

During the marriage, defendant worked as a crane operator earning approximately $120,000 per year in gross salary including regular overtime, or approximately $7,800 per month net of taxes and other mandated deductions. *fn1 After Heather completed the first grade, plaintiff returned to work and earned approximately $13,000 to $14,000 per year working at various part-time jobs as a data entry clerk, bank teller, and cosmetics salesperson. Plaintiff's resumption of employment represented the parties' mutual decision and was necessitated by their need for additional funds to support the household.

In 1989, plaintiff began attending Rutgers University, and earned her undergraduate degree in 1995. She continued to work during college, earning approximately $6000 a year. In 1995, plaintiff enrolled in law school, and earned her law degree in 1998. She did not work during law school *fn2 and incurred approximately $100,000 in debt to finance her education. After graduating, and during the pendency of the trial, plaintiff served a one-year term as a judicial law clerk at a salary of $30,000 per year. Unfortunately, her first attempt to pass the New Jersey bar examination was unsuccessful. However, following her clerkship, plaintiff secured employment at a law firm at a salary of $33,000 per year. Although plaintiff's reply brief and a letter filed pursuant to R. 2:6-11(d), state that her two subsequent attempts to pass the bar examination were unsuccessful and that she was recently terminated from her position at the law firm, we do not consider this information on appeal, as it is not part of the record below. See Monmouth County Div. of Soc. Servs. ex rel. Hall v. P.A.Q., 317 N.J. Super. 187, 195 (App. Div. 1998). However, because we are remanding this matter for further proceedings, the record on remand may be expanded so that the trial judge may consider any current information relevant to the parties' respective positions.

According to plaintiff, she and defendant "had a nice standard of living" during the marriage. They vacationed once every two years, and dined out two or three times a week. Plaintiff indicated that she no longer dines out, and that her "standard of living has substantially dropped" with respect to housing, clothing, and transportation. Although the parties then owned a house in Delran, plaintiff rented an apartment that was more accessible to public transportation and thus more convenient to her work.

During the marriage, defendant worked approximately eighty to ninety hours per week. At the time of trial, he earned $25 per hour but claimed that the mental and physical stress of the job have started to take a toll on his health.

At the conclusion of the trial, the judge found that as of March 22, 1998, defendant earned $1,392 in weekly net income and had reasonable weekly expenses of approximately $553. Thus, exclusive of child support, alimony, Heather's school loan payments, and life insurance payments, defendant had a weekly surplus of $839. The judge found that plaintiff earned $640 per week and had reasonable monthly expenses of $3,035 per month. However, the judge concluded that plaintiff incurred an extraordinary rental expense of $1,000 monthly for her apartment and observed that plaintiff had a deficit of approximately $66 per month without alimony.

Most significantly, the judge found that this was a long-term marriage, and there was substantial disparity between the parties' incomes. Nevertheless, the judge ordered limited duration alimony in the amount of $200 per week for a period of five years "to enable the plaintiff to establish herself as an attorney." In determining that award, the judge stated:

The Court finds under earning capacity that the plaintiff has the potential to earn an income, substantial income, although she's now earning 30,000, she has a juris doctorate and she's going to be practicing law in the future. The Court finds that under length of absence from the job market, that does not apply to this case even though she was unemployed during the time she was attending school and had part-time employment previously, she is now employed and has the capacity for lucrative employment.

The judge also ordered that the award be reviewed in two years, that defendant pay $75 per week in child support to underwrite Heather's clothing costs and that plaintiff be solely responsible for her own substantial school loans. Responsibility for Heather's college expenses, the parties' taxes and counsel fees, and other financial obligations was allocated between the parties.

I.

Plaintiff's appeal focuses upon the denial of permanent alimony. She asserts that because this was a long-term marriage, limited duration alimony was inappropriate and permanent alimony should have been awarded. She further claims that the award of $200 per week was inadequate.

In exploring the parameters of limited duration alimony, we first examine the statutory basis for alimony, and then review the various forms of alimony, the legislative history relevant to the amended statute, the policy considerations distinguishing permanent and limited duration alimony and finally, the application of those principles to the facts of this case.

We commence our analysis with a restatement of the general principles relevant to any alimony award determination. The award of alimony to a divorcing spouse is provided for by statute: "after judgment of divorce or maintenance . . . the court may make such order as to the alimony or maintenance of the parties . . . 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 prevailing principle in fixing an alimony award, as enunciated in Lepis v. Lepis, 83 N.J. 139, 150 (1980), was recently reiterated by the Supreme Court: "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." Crews v. Crews, 164 N.J. 11, 16 (2000); 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, 83 N.J. at 150); Heinl v. Heinl, 287 N.J. Super. 337, 344 (App. Div. 1996)(same). See also Crews, supra, 164 N.J. at 16, 24 (same). In reviewing an alimony award, "[w]e give deference to a trial judge's findings as to issues of alimony, if those findings are supported by substantial credible evidence in the record as a whole." Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998); Heinl, supra, 287 N.J. Super. at 345.

Any award of alimony requires an analysis of the statutory factors to be considered in setting the amount and duration of an award, including:

(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 ...


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