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Weishaus v. Weishaus

June 9, 2004


On certification to the Superior Court, Appellate Division, whose opinion is reported at 360 N.J. Super. 281 (2003).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court is being asked to reconsider its determination in Crews v. Crews that a finding of the matrimonial standard of living should be mandatory in every uncontested case that involves a provision for support.

Sydney Weishaus (plaintiff) filed a complaint in 2000 to divorce Marvin Weishaus (defendant), her husband of fifteen years. Plaintiff's Case Information Statement (CIS) listed her marital lifestyle amount of $436,140 for herself and her three children (although at separation only the younger two children were residing with her). Her CIS specified that defendant's mother paid for approximately $41,000 of the family expenses each year and that part of that amount was for activities of the children. Plaintiff's CIS also specified that certain expenseswere paid for by a company owned and operated by defendant. Defendant's CIS listed living expenses at $210,732 for himself and one child. His CIS did not specify the source of funds for any of the listed expenses. Defendant's CIS also indicated liabilities owed to his mother in the amount of $440,000.

After about a year, the parties entered into a Property Settlement Agreement (Agreement), which provided that plaintiff would receive term alimony for three years in specified amounts and child support in specified amounts. A final hearing on the parties' divorce was held on July 2, 2001. The parties proffered the Agreement as well as limited testimony before the court. Essentially, plaintiff testified that the Agreement was voluntarily made and that it was a fair and reasonable resolution of the parties' finances. Plaintiff further testified that the financial support provided in the Agreement would not enable her to maintain the marital lifestyle she enjoyed during the marriage, as reflected in her CIS, because she no longer would receive the additional income from defendant's company, his mother, or from stocks the value of which had fallen considerably.

Because plaintiff stated that she would not be able to maintain the marital lifestyle under the Agreement, the court made certain findings required under Crews: 1) it adopted the parties' statement in the Agreement that defendant's average annual income was $125,000 for the period 1997 through 1999; 2) it determined that other sources of income, specifically the money received from defendant's mother and the failed stocks, were not within defendant's control and were not to be included in establishing matrimonial lifestyle; 3) it imputed to plaintiff a $30,000 salary based on an expert's valuation of her employability; and 4) it observed that the alimony set under the Agreement was in consideration of the equitable distribution of property that included the marital home. The court concluded that, in light of the alimony and equitable distribution provided in the Agreement and the adjustments to marital lifestyle derived by excluding the specified income, plaintiff would not experience a shortfall in the marital lifestyle. A Judgment of Divorce was issued, incorporating the Agreement as amended by the court to include the statement "that plaintiff can maintain a reasonable and comparable lifestyle excluding any contributions from Defendant's mother."

Plaintiff appealed, claiming that: 1) the court should not have insisted on establishing the marital standard of living when the parties had reached an agreement on the amount of support; 2) the other sources of income should not have been excluded from the marital standard of living calculation; and 3) the court erred in finding that plaintiff could maintain a reasonably comparable lifestyle under the terms of the Agreement. Thereafter, the parties decided to discontinue the appeal and submitted a proposed Consent Order to the court, which essentially provided that both parties agree to their respective lifestyle standards as found in their respective CIS's and, although they do not agree on the marital lifestyle standard, they agree not to litigate the issue at this time. The Order also noted that, in the future, a court could be called on to make a marital lifestyle determination, but should not be bound by the current finding of the court.

The trial court refused to execute the proposed Order, believing that, pursuant to Crews, it was obligated to make marital-standard-of-living findings prior to finalizing a divorce, even when the sole issue in dispute is the parties' marital lifestyle. The court considered the Crews mandate unwaivable and concluded that the parties' proposed Order thwarted the policies of judicial economy and efficiency promoted by Crews.

Plaintiff sought reconsideration. At the same time, the Supreme Court Family Division Practice Committee's Subcommittee on General Procedures released a revised statement regarding Crews, wherein it was recommended that courts make a "limited finding" in matters where parties agree to settle all aspects of their divorce except the marital lifestyle and/or the ability of one or both of the parties to maintain the marital lifestyle under the proposed alimony award. One member of that Subcommittee dissented. The trial court would not follow the Subcommittee's revised statement and again refused to execute the proposed Order. Plaintiff resumed her appeal.

A unanimous Appellate Division panel affirmed in part and reversed in part, finding that the trial court inappropriately reduced its marital-standard-of-living calculation to reflect a marital standard that was sustainable solely by defendant's employment income rather than assessing the actual standard of living enjoyed by the parties during the marriage, including investment income and parental cash subsidies. Notwithstanding that calculation error, the Appellate Division held that the trial court properly made determinations in respect of the marital lifestyle and whether plaintiff could lead a comparable lifestyle post-divorce under the terms of the Agreement.

The Supreme Court granted plaintiff's petition for certification and defendant's cross-petition for certification.

HELD: In uncontested divorce actions, trial courts must have the discretion to approve a consensual agreement that includes a provision for support without rendering marital lifestyle findings at the time of entry of judgment.

1. Obligations and benefits of alimony are governed by a "changed circumstances" inquiry. Crews addressed the implementation of that inquiry, requiring the use of the marital standard of living as the point of measure in the analysis. Crews involved an application for alimony modification in a contested divorce but the Court also extended its guidance to uncontested divorces. The intention was to establish the marital standard of living at a time when it appeared most efficient to do so - at the time of entry of the judgment of divorce. (Pp. 12-15)

2. Notwithstanding the economy and efficiency considerations that led to the Crews directive, there are valid reasons to revisit the issue and allow flexibility to trial courts when considering settled divorce actions. The holding in Crews should no longer be read to require findings on marital lifestyle in every uncontested divorce. A trial court may forego the findings when the parties freely decide to avoid the issue as part of their mutually-agreed upon settlement, having been advised of the potential problems that might arise as a result of that decision. In addition, a court should take steps to capture and preserve any information that is available. (Pp. 15-18)

3. The matter is referred to the Family Practice Committee for its consideration and recommendation of the issue of how best to capture marital lifestyle information efficiently and economically. Because the trial court did not believe it could depart from Crews, the matter must be remanded. The trial court need not make marital standard findings on remand. The Court notes only that in determining the marital standard, the trial court establishes the amount the parties needed during the marriage to maintain their lifestyle. That is separate from the identification of the sources of funds that support that lifestyle. (Pp. 18-20)

Judgment of the Appellate Division is REVERSED in part and AFFIRMED in part, as MODIFIED. The matter is REMANDED to the Family Part for further proceedings consistent with this opinion.


The opinion of the court was delivered by: Justice LaVECCHIA

Argued November 17, 2003

In this matrimonial appeal, we revisit our decision in Crews v. Crews, 164 N.J. 11 (2000). Crews clarified the principles governing an application for modification of alimony. In Crews, we also addressed whether marital lifestyle findings should be made upon entry of a divorce judgment that includes support so as to facilitate the efficient handling of subsequent modification applications. We directed the lower courts, when setting an alimony award, to make findings establishing the standard of living during the marriage (the "marital standard") and, as part of the court's assessment of the adequacy and reasonableness of the award, to determine whether the award will enable the parties to enjoy a lifestyle that is "reasonably comparable" to that enjoyed during the marriage. Id. at 26.

Although Crews involved a contested divorce and, therefore, presented a full trial record, in dicta, we indicated that the same judicial findings should be made in uncontested cases. We stated that

[t]he setting of the marital standard is equally important in an uncontested divorce. Accordingly, lest there be an insufficient record for the settlement, the court should require the parties to place on the record the basis for the alimony award including, in pertinent part, establishment of the ...

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