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Schwartz v. Schwartz

June 18, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1216-03.

Per curiam.


Argued May 23, 2007

Before Judges Lefelt, Parrillo and Sapp-Peterson.

In a previous decision involving these parties, we vacated the trial court's permanent alimony award of $33,000 per year, noting that plaintiff Mara Schwartz and defendant Gary Schwartz had a marriage of "intermediate length," and that plaintiff was "relatively young," with a "college degree, and employment history." Consequently, we remanded to the trial court for reconsideration of whether some form of rehabilitative alimony, limited alimony, some combination thereof, or rehabilitative and reduced permanent alimony would be more appropriate than the permanent alimony awarded.

Defendant now appeals from the trial court's orders on the remand granting plaintiff Mara Schwartz fourteen-years limited duration alimony of $33,000 annually, directing defendant to reimburse plaintiff $6,082.50 as his share of the parties' children's 2006 camp fees, and directing defendant to pay $2,300 of plaintiff's counsel fees. Defendant also appeals from the trial court's anti-Lepis provision, which precluded any alimony reduction "unless the husband's gross annual income drops below $80,000 per year for the prior calendar year or the wife's total gross income exceeds $30,000 per year." We address each of these issues, but because the relevant facts were comprehensively set forth in our prior decision, A-6948-03T5, we need not repeat them here.

Although the trial court clearly disagreed with our previous alimony decision, it recognized on the remand that it was bound by our directive. See e.g., Miah v. Ahmed, 179 N.J. 511, 528 (2004); Petrusky v. Maxfli Dunlop Sports Corp., 342 N.J. Super. 77, 81 (App. Div.), certif. denied, 170 N.J. 388 (2001). In our view, the court complied with our instructions, as well as its obligation pursuant to N.J.S.A. 2A:34-23(c), to make findings regarding the factors set forth in N.J.S.A. 2A:34-23(b). The duration of the term alimony, though lengthy, was linked rationally to the youngest child's graduation and driven by the plaintiff being a full-time homemaker and child care provider. Although we might not have rendered the same decision had we been the trial court, the decision is not so out-of-line as to forfeit our deference. Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998). Accordingly, we affirm the alimony award.

As for the trial court's anti-Lepis ruling, we understand the court's concern that the parties were squandering their limited resources on excessive litigation, and we can therefore appreciate its effort to curb future litigation where a change in income is not "substantial." Lepis v. Lepis, 83 N.J. 139 (1980), instructs, however, that income change is not the only circumstance that may warrant modification of defendant's obligation. These changes include, for example, the increased need of the dependent spouse, increase in the cost of living, illness, disability, or infirmity. Id. at 151. Accordingly, the earnings-limitation on downward alimony applications imposed by the trial court conflicts with Lepis and must be vacated.

Otherwise, we see no error in the court's enforcement of the final judgment of divorce requiring that defendant pay 75% of the cost of the children's camp expenses. See Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.), certif. denied, 180 N.J. 354 (2004). Although defendant argues that plaintiff's camp decision was "unilateral," defendant does not indicate that he attempted to participate in the choice of camp and was rebuffed by plaintiff, which may frustrate the judgment's requirement that both parties have equal decision-making authority regarding major decisions concerning the children. If defendant wishes to have more input, he should proactively consult with plaintiff before a camp is selected, rather than withhold payment and complain about the camp choice.

Finally, the award of counsel fees in this matter is certainly within the trial court's discretion. Williams v. Williams, 59 N.J. 229, 233 (1971). However, the trial court failed to issue findings regarding the counsel fee award and stated only that he "examined" the necessary factors. The absence of any findings impairs meaningful review by this court and is strongly criticized. See Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003).

A remand of this matter, however, will not serve the parties well. Accordingly, for the reasons which follow we choose to affirm this award. We are aware of the financial circumstances of the parties, their ability to pay their own fees or contribute to the fees of the other party, the history of this litigation, and the reasonableness and good faith of the positions advanced. We are also aware of the legal work that became necessary to handle the remand and the normal fees incurred in such matters. Under these circumstances, we conclude that the fee award was not only unremarkable and warranted, but also extremely modest. Consequently, we affirm the fee award.

In conclusion, we affirm all of the trial court's decisions on the remand except for the anti-Lepis provision, which we vacate.

Affirmed in part, vacated ...

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