On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-11933-87.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Grall and Riva.
Defendant Gordon Rozenwald appeals from a post-judgment order increasing and extending his alimony obligation. The appeal requires us to consider whether the statutory standard for modification of "limited duration alimony" applies retroactively to orders entered prior to the effective date of the law. N.J.S.A. 2A:34-23c. We hold that regardless of the date of the order incorporating an agreement or decree, a motion to modify term alimony must be addressed under the standards of N.J.S.A. 2A:34-23c, unless the moving party establishes that the parties agreed to terminate permanent alimony based upon a condition or expectation that has not been fulfilled or realized.
Rozenwald and Gordon married in May 1971. Because of Rozenwald's job, they lived in Belgium until 1981. Their two children were born during that period, and Gordon did not work outside the home. Rozenwald was successful. He earned $27,724 in 1971 and $214,473 in 1981. The strength of the dollar relative to Belgian currency allowed them to enjoy goods and services not otherwise affordable. The Rozenwalds rented a home and paid to have it cleaned. Their oldest child attended private school, and they traveled abroad. Gordon also visited her family in the United States, and the Rozenwalds entertained them when they came to Belgium to see her. Gordon's siblings recall the Rozenwalds' generosity and hospitality, which included a $5,000 wedding gift.
By 1981, Gordon wanted to return to the United States, and Rozenwald had an opportunity for transfer to his employer's New York City office. The family moved from Belgium to New York State. Shortly after the move, the Rozenwalds purchased a $305,000 home on over five acres of waterfront property in Westchester County. Because mortgage costs were high, they sold that home after one year and purchased a $205,000 home on a smaller lot. Although the transaction decreased their mortgage payments by approximately $1,000 per month, Rozenwald rented an apartment in New York City that year. According to Rozenwald, he rented the apartment because the parties separated. According to Gordon, he stayed in the City during the workweek and came home on weekends.
In any event, in 1985 Gordon filed a complaint for divorce in New York. On October 9, 1985, the Rozenwalds signed an agreement that resolved all issues. That agreement included permanent alimony in an initial amount of $9,750 per year which was to increase in increments to a high of $19,500 per year after forty-two months. The Rozenwalds agreed to adjust annually the $19,500 alimony in accordance with a formula based on the Consumer Price Index and increases in Rozenwald's salary. The agreement also provided for child support.
After executing the agreement and before divorce, the Rozenwalds reconciled. They sold their home in New York, moved to New Jersey and rented a home in Short Hills for $2,100 per month.
The reconciliation failed, and in November 1986 Gordon filed a second divorce complaint, this time in New Jersey. Again, the Rozenwalds resolved all issues, and the trial court incorporated their agreement in a final judgment entered in June 1989.
When the Rozenwalds negotiated their second property settlement agreement, his income was at a low point. Although he had earned $527,700 in 1987 and $479,500 in 1988, he lost his job in 1988 and accepted a new job with a salary of $100,000.
The final judgment provides for alimony in the amount of $10,000 per year for a term of fifteen years and child support in the amount of $25,000 per year, to be reduced to $20,000 per year after the emancipation of one child. When they divorced, Rozenwald was fifty years old and Gordon was forty-five.
Rozenwald explained the decision on term alimony. He was unwilling to agree to permanent alimony and viewed the fifteen-year term as "logical" because it would coincide with his retirement. Gordon said she agreed because the "deal" was the best she was going to get. Both parties were represented by counsel, and Gordon acknowledges that she understood the agreement and attested to its fairness and equity at the time of divorce.
The equitable distribution provisions of the agreement entitle Gordon to receive forty percent of the pension Rozenwald earned during the marriage when he reaches age sixty-five and elects to collect it. She also received $30,000 to purchase a residence for herself and the children, the parties' passbook savings account and all personal property in her possession. Rozenwald received the personal property in his possession and sixty-percent of his pension. Due to a combination of Rozenwald's investment losses and family spending, they had no marital assets other than those referenced above.*fn1
Over a thirteen-year and three-month period following the divorce, Rozenwald gave Gordon and the children $470,474 above and beyond his obligations under the agreement. That total included contributions to Gordon's masters degree and the children's education.
Rozenwald's earnings have increased since the divorce. By 1990 he earned $256,633, more than double the $100,000 he was earning at the time of the settlement and divorce one year earlier. In every year after 1995, he earned in excess of $1,000,000. In 2001 he earned $3,869,637. Gordon's earnings have also increased. She completed her masters degree, and by the time of the hearing below she was earning $46,812 per year.
Gordon lives in a house in Millburn that she rents. According to Gordon and her siblings, her current residence compares unfavorably with the homes she enjoyed during the marriage. Rozenwald lives in an apartment in New York City that he rents. He continues to suffer investment losses.
Gordon did not file a motion to modify support until she filed this application in October 1998. A plenary hearing on the motion was held in September 2002. Following the hearing, the judge ordered Rozenwald to pay permanent alimony in the amount of $6,320 per month. Rozenwald appealed, and Gordon filed a cross-appeal, which she dismissed after the trial court improperly considered and granted her motion for reconsideration.*fn2
On Gordon's motion for reconsideration, the judge increased the alimony to $10,000 monthly, made the increase retroactive to the date on which Gordon filed the original motion in 1998, and awarded Gordon counsel fees in the amount of $61,423, an amount additional to fees Rozenwald had paid on her behalf during the course of the post-judgment litigation. Rozenwald filed a second appeal from that order.
In the interest of judicial economy and to avoid additional expense and delay for the litigants, we consolidate the appeals, relax the rules and consider the order as revised on Gordon's motion for reconsideration. R. 1:1-2.
Rozenwald claims the judge erred in: converting the fifteen-year term alimony to permanent alimony; increasing the amount of alimony; transferring ownership of his life ...