On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FM-07-2617-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Winkelstein and Fuentes.
In this appeal from a final judgment of divorce, defendant Martin P. Brodeur, a professional hockey player, contends that the court erred in awarding his thirty-three year old wife, plaintiff Melanie A. DuBois, permanent alimony in the amount of $500,000 annually following a marriage of seven-and-one-half years, computed from the date of marriage to the date of separation. Defendant argues that permanent alimony was not appropriate because the marriage was not one of long duration and that the amount of the award is excessive and unsupported by the evidence of marital lifestyle and plaintiff's needs. In her cross-appeal, plaintiff contests the denial of her application for counsel fees, the counsel fee award in favor of defendant, and the award of team logo pendants to defendant. We reverse the permanent alimony award and remand for entry of an appropriate limited term alimony award. We also reverse the counsel fee award in favor of defendant. We affirm the judgment of divorce in all other respects.
On May 5, 2003, plaintiff filed a complaint for divorce against defendant. Custody and visitation issues were separately handled by a parenting coordinator and resulted in the entry of a consent order by the parties. A trial on the financial issues of child support, alimony and equitable distribution commenced in January 2005. Following twelve days of trial, the trial judge issued a written opinion and on October 20, 2005, the judge entered a final judgment of divorce.
Pursuant to this judgment, defendant was directed to pay child support in the amount of $132,112.32 per year plus 87% of the costs for the children's private schools, camps, and transportation for parenting time. He was also directed to pay permanent alimony to plaintiff in the amount of $500,000 per year. With respect to equitable distribution, the judgment awarded one-half of the total value of the marital assets, or $6,815,322.88, to each party. In addition, pursuant to a qualified domestic relations order, plaintiff was awarded one-half of defendant's retirement assets, and one-half of the $1,750,000 in deferred compensation payments to be received by defendant from 2006 through 2009.
Plaintiff was born on April 6, 1974, in Saint-Hyacinthe, Quebec, Canada. Defendant was born on May 6, 1972, in Montreal, Canada. Defendant started playing hockey when he was four years old. When he was seven, he started playing goalie. At the age of eight, he began attending a clinic with a goaltender coach and later attended camp with a famous Russian goaltender coach for one year. By this time, he was a starting goalie on his team.
In 1987, defendant was invited to play with a Midget Triple A team. This required him to attend a different school, located about half an hour away from his home. He played for this team for one year. It was during this time that he first met plaintiff; she was thirteen years old and he was fifteen.
In 1989, when defendant was seventeen and in high school, he was drafted into the Junior Hockey League. Although he was recruited by twelve different colleges, he chose to enter the Junior League, seeing it as his quickest route to the National Hockey League (NHL), his life-long dream.
Defendant was drafted by the Verdun Canadiens, which later became the Saint-Hyacinthe Lasers. He left his home town and moved to Saint-Hyacinthe, where the team arranged for him to live with a host family. He received a salary of $35 a week, plus $20 for gas. Playing with the Lasers required defendant to practice seven days a week and play three to four times a week. As a result, he was not able to finish high school.
It was during his first season with the Lasers that defendant began dating plaintiff, who was now fifteen and attending high school twenty minutes away in Saint-Liboire, where she lived with her family. Plaintiff did not date anyone else after that.
Following his first season with the Lasers, in the spring of 1990, the NHL draft occurred in Vancouver. Defendant was ranked as the number two goalie during this draft and was selected in the first round by the New Jersey Devils and signed an NHL contract. According to this contract, if defendant played in the Junior League, he would be paid $40 per week plus reimbursement for gas; if he played in the Minor League, he would be paid $35,000 for the year; if he played with the NHL, he would be paid $115,000 for the year. Defendant also received a signing bonus of $80,000. He deposited this bonus into an account in his own name.
Defendant returned to his home town of Montreal for the summer of 1990 and continued to train, first with the Junior League and then later in the summer with the Devils in New Jersey. Plaintiff was not with defendant during training.
Defendant was not chosen to play with the Devils for the 1990-1991 season. Because he was only eighteen, he was too young to play with the Devils' Minor League team, so he returned to the Lasers, in the Junior League, to continue to develop his skills.
Although defendant was again billeted with a host family during this season, he started spending a lot of his time at plaintiff's parents' house. When plaintiff turned seventeen, her parents permitted her to share a room with defendant in their house. Plaintiff claimed that their dating relationship had been exclusive from the start. Defendant, however, asserted that it took a while for them to get their "act together."
At the end of the 1990-1991 season, defendant returned home to Montreal. Plaintiff, however, claimed that they spent the summer together, staying half the time with defendant's family in Montreal and the other half with her family in Saint-Liboire.
Defendant came to New Jersey at the end of the summer of 1991 to train with the Devils, but again he was not selected to play with the team for the following season. For the 1991-1992 season, he played with the Lasers, earning $50 per week plus gas. He continued to date plaintiff and characterized their relationship during this time as that of "boyfriend [and] girlfriend."
Plaintiff explained that high school in Canada ended one year earlier than high school in the United States, but that it was followed by a two-year college preparatory school. So, in 1991, when she was seventeen, she began her first year of preparatory school. She admitted that she did not put a lot of effort into school because she knew that she and defendant were not going to be in Saint-Hyacinthe/Saint-Liboire for the following year because defendant would then be old enough to play in the Minor League. She also knew that she would go with him wherever he was playing because "[i]t was just the way it was," based on her discussions with him. She did not want to pursue a long-distance relationship.
During the 1991-1992 season, defendant was called up to play for the Devils when their goalies were injured. He played three or four games with the team until the NHL players went on strike. Defendant returned to the Junior League until the end of the strike. In the spring of 1992, defendant became the Devils' backup goalie. It was during this time that defendant required his first arthroscopic knee surgery. He received treatment and underwent rehabilitation in New Jersey. Plaintiff did not accompany him to New Jersey because she remained in school in Saint-Liboire.
At the end of the 1991-1992 season, defendant returned to Montreal. When he went to training camp in New Jersey, plaintiff did not accompany him but she visited him there.
Defendant was now twenty years old and qualified to play with the Devils' Minor League team in Utica, New York. In the fall of 1992, he drove to New Hartford, New York, along with some teammates and found an apartment to rent. He furnished the apartment. Shortly thereafter, plaintiff's parents drove her to New York, along with some furniture and her personal belongings, so that she could move in with defendant.
Plaintiff never completed her second year of college preparatory school. She admitted that she never had any objective to pursue a career because she knew, after two years of dating defendant, that "this was it." She also admitted that she had not been training for any career at age fifteen when she first met defendant, and that she did not participate in any after-school activities or sports, either before or after she met him.
It was undisputed that, during the time the couple spent in Utica, they did not discuss getting married and did not own any joint property or have any joint accounts, either in the United States or in Canada. At this time, plaintiff did not work. She was not in the country legally and did not speak English. Both plaintiff and defendant explained that getting married was not that important to them or their families.
Defendant was earning $35,000 a year while he played for the Utica team. Plaintiff spent her days watching television and shopping. She tried taking correspondence classes in Canada, but decided that it was not worth it because it would have taken her six years to complete one year of school.
At the end of defendant's first season with the Utica team, the couple returned to Saint-Liboire, where they rented an apartment. At the end of the summer of 1993, defendant attended training camp in New Jersey. Because of an injury to the Devils' goalie, defendant remained with the team. He played well enough for the team to hire him as a goalie for the 1993-1994 season. He was now earning an NHL salary of $140,000 per year.
Plaintiff joined defendant in New Jersey in October 1993. They rented a furnished apartment in Hackensack. The lease was in defendant's name only. Plaintiff still could not work because she was not in the country legally, though she was learning English. The couple had no discussions regarding employment or further education for plaintiff. She spent her time in Hackensack cleaning, cooking, and doing laundry.
The couple became engaged in December 1993 because "it was kind of the right thing to do at that time." Plaintiff explained that all of defendant's other team members were either married or engaged and looked at plaintiff and defendant strangely because they were simply living together. They did not set a wedding date at that time.
Defendant continued to play for the Devils, who made the playoffs in the spring of 1994. Defendant won the Rookie of the Year award.
Plaintiff and defendant returned to Saint-Liboire for the summer of 1994. They discussed starting a family, and plaintiff became pregnant that summer. They had tried to plan the pregnancy so that the baby would be born in the United States. Despite the pregnancy, the couple still did not select a wedding date. In August 1994, plaintiff miscarried; however, she immediately became pregnant again the following month.
Defendant played for the Devils for the 1994-1995 season. Due to a lockout that season, he played only forty-eight games, instead of the usual eighty or more, and received a proportionately lower salary. Nevertheless, the Devils agreed to renegotiate defendant's contract. The team paid him $850,000 for that shortened season. The check was deposited into an account in defendant's name only. The Devils won the Stanley Cup at the end of that season.
The couple's son, Anthony, was born on June 8, 1995. In July the couple bought a two-bedroom bungalow with a finished basement in a subdivision in Saint-Liboire. It was purchased in defendant's name alone, using his own money; there was no mortgage, and plaintiff did not contribute any funds to the purchase. She had participated, however, in the house search and the ultimate selection of the house. The couple married on August 19, 1995.
At the commencement of the 1995-1996 season, plaintiff signed a three-year contract with the Devils. According to this contract, defendant earned $1.5 million for the 1995-1996 season, $1.8 million for the 1996-1997 season, and $2 million for the 1997-1998 season. The contract also provided for bonuses based on performance and awards.
Once they were married, both parties concede that they began to purchase property in joint names, to open joint bank accounts, and to become partners in their investments. Plaintiff spent her time taking care of the baby, traveling,*fn1 and socializing with the other players' wives.
Two months after their marriage, the couple bought a home in North Caldwell for $595,000. Title was held in both names. The couple devised a plan to use the house in Saint-Liboire during holidays and defendant's off-season and plaintiff's visits with her family. In February 1996, plaintiff learned she was pregnant again. Twin boys, William and Jeremy, were born on October 29, 1996. After their birth, the couple hired a nanny, paying her $360 to $400 a week. Over the course of their marriage, the couple sometimes paid close relatives or friends to serve as nannies for their children.
In the summer of 1996, defendant played hockey in Vienna for the World Hockey Championship as part of Team Canada. Plaintiff accompanied him on the trip, after which the couple traveled to Paris and London.
On December 11, 1997, defendant negotiated a four-year contract with the Devils. It provided that defendant would earn $2,125,000 for the 1997-1998 season, $3,500,000 for the 1998-1999 season, $3,750,000 for the 1999-2000 season, and $4,000,000 for the 2000-2001 season. If the Devils exercised their option to hire defendant for the 2001-2002 season, he would earn $4,250,000. In addition, the contract called for defendant to earn deferred compensation as follows: $250,000 for the first year of the contract, payable by June 1, 2006; $250,000 for the second year of the contract, payable by June 1, 2007; $250,000 for the third year of the contract, payable by June 1, 2008; and $250,000 for the fourth year of the contract, payable by June 1, 2009. The contract also provided for performance bonuses.
With this contract, the parties were able to start saving money. To that end, they hired a financial advisor. Their plan was to save as much money as they could, i.e., to save whatever was left over after they lived the way they wanted because the couple knew that defendant's playing career would end when he was in his late thirties or early forties. Although the couple did not have to diminish their lifestyle, and actually upgraded it somewhat after this contract was signed, they both acknowledged that they could have lived a much grander lifestyle, if they had not been so concerned about saving money for the future.
It was around this time that defendant began receiving compensation for endorsements for such companies as Pepsi, Frito's, and Wheaties. The couple formed a limited liability corporation known as J.A.W. for defendant's endorsement money. The J.A.W. account, to which plaintiff had access, was used for business-related expenses.
Defendant also earned additional money by signing sports memorabilia and making personal appearances, both of which were handled by Steiner Sports, and for signing hockey cards, which was handled by Upper Deck. The amount of money earned by defendant from these ventures varied from year to year, with the amount usually depending on whether the Devils won the championship. In addition, some places of business paid defendant with free merchandise, such as cars, or with free credits for private jet travel.
Although plaintiff claimed that she witnessed defendant receiving cash for some of his signings or appearances, the president of Steiner Sports denied that it ever paid him in cash. On the other hand, defendant admitted that "sometimes" he received cash for signings and appearances, but he claimed that almost all of his additional compensation was received in check and was reported on his tax return.
On November 9, 1998, the parties sold their house and bought a bigger house, also in North Caldwell. This house was a 6000 square foot colonial that cost $960,000. The parties spent between $200,000 and $300,000 on renovations. Plaintiff supervised the renovations. Plaintiff also did most of the decorating herself.
At this point the couple did not have any real budget. They dined out frequently, either by themselves, with the children, or with other couples. The restaurants varied from local family restaurants to upscale restaurants in New York. They gave generous gifts to members of both families, including cash and cars, and paid for the education and housing expenses for various family members over the years. Plaintiff had a credit card and an ATM card for cash. She took money for whatever she needed, whenever she needed it. She shopped at both designer stores like Prada and neighborhood stores like Target. The parties never had disagreements over spending, and they never checked on what the other spent. They always had new cars because they would trade in their old ones after a year or two.
Both parties agreed that they never intended for plaintiff to pursue a career or employment because she needed to be available to defendant and the children. Defendant also admitted that plaintiff "was a great mother and great wife" and that she made all of the contributions one would have expected her to make to the relationship.
In January or February of 2000, the parties bought two pieces of property, totaling about four acres, in Saint-Adolphe, Canada, approximately forty-five minutes from Montreal. They built two houses on these properties. One is an 1800 square foot guest house, with two bedrooms and a loft. The other is a three-story, 4500 square foot house, with four bedrooms, a gazebo, and a finished basement, which the couple refers to as the "cottage." The vacant lots each cost $72,000 Canadian dollars (CAD). Plaintiff spent a lot of time with the architects to plan the structures, flying back and forth between New Jersey and Canada. She was also in charge of all the decorating and design details.
The larger of the two houses was finished first. Although the couple used it for the first time for Christmas 2001, construction was not finally completed until the summer of 2002. The home, which was intended to be the family's summer residence only, included a jet ski, a boat, a tennis court, and an in-ground pool. They hired a caretaker for the property.
Meanwhile, on October 2, 2001, defendant signed another multi-year contract with the Devils. This contract called for him to be paid $4,250,000 for the 2001-2002 season, $6,250,000 for each of the next four seasons (2002 through 2006), and $8,000,000 for the 2006-2007 season. It also called for defendant to receive deferred compensation in the amount of $750,000 for each of the four seasons from 2002 through 2006 (for a total of $3,000,000), with payments to be made beginning in 2006 and ending in 2010. The contract also provided for bonuses based on performance. This contract enabled them to upgrade their lifestyle due to their savings regimen instituted with the prior contract.
On March 14, 2002, the couple's fourth child, a daughter, Anabelle, was born. In April or May, plaintiff's brother and his wife came to live with plaintiff and defendant to help with the children.
In the summer of 2002, the parties bought an additional 400 acres of land in Saint-Adolphe for $400,000 CAD, adjacent to their four acre parcel. They did so to gain privacy and to ...