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Sexton v. Sexton


October 9, 2007


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-200-06H.

Per curiam.


Submitted September 19, 2007

Before Judges Lihotz and Simonelli.

In this matrimonial matter, defendant Stephen Sexton appeals from specific provisions of a Dual Final Judgment of Divorce entered on December 7, 2006, after a four-day bench trial. The Family Part judge awarded plaintiff permanent alimony of $100 per week and concluded that the parties' two children were emancipated. Although defendant filed a timely notice of appeal listing both issues, he offers no argument in his merits brief with respect to the emancipation of the children. We consider only a party's legal arguments raised in his or her brief under appropriate point headings. R. 2:6-2(a)(5); Almog v. Israel Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997). Because the issue has not been briefed it is deemed abandoned. Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001). We affirm the Family Part's award of permanent alimony after discerning that Judge Kieser's determination was amply supported by the record and within the scope of his discretion.

The parties were married on June 11, 1982. Plaintiff, age fifty-five, began full-time employment with a State department in 1994, and continues that employment. Defendant, age fifty-seven, is a full-time employee with a different State department. Defendant's base salary plus overtime exceeds plaintiff's by approximately twenty thousand dollars per year.

During the marriage, the parties divided the family financial responsibilities, with each paying his or her expenses from separately titled bank accounts. Plaintiff testified that she had accumulated debt of approximately $25,000, which she is paying at a rate of $272 every two weeks, and also is repaying a $23,000 pension loan. Trial testimony and documentary evidence support that after defendant pays his identified expenses and taxes he has a positive cash flow, which is approximately $20,000 per year. Apparently, defendant spent all the money he earned. The trial judge rendered his oral decision on October 17, 2006. Marital assets, including the former marital home and the parties' pensions were equitably divided; defendant received two-thirds of the realty's equity and plaintiff received one-third, which was reduced by her share of any debts encumbering the property. The trial judge reviewed each statutory factor of N.J.S.A. 2A:34-23(b), making requisite findings on each applicable factor and awarded plaintiff permanent alimony of $100 per week.

On appeal, defendant argues the trial court's award of permanent alimony was against the weight of the evidence. Defendant maintains that the parties had "no marriage to speak of" as they "le[d] independent lives." Defendant further argues that because the parties "shared nothing," and "conducted themselves like two unrelated tenants in the same house" alimony, which is "deeply rooted in the [concept] of a marital enterprise," could not be awarded if no marital enterprise existed.

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, [and] credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992).

Every alimony request "rests upon its own particular footing and [we] must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Martindell v. Martindell, 21 N.J. 341, 355 (1956). The right to receive alimony arises out of the marital relationship and provides the dependent spouse with "a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage." Stiffler v. Stiffler, 304 N.J. Super. 96, 98 (Ch. 1997) (quoting Koelble v. Koelble, 261 N.J. Super. 190, 192-93 (App. Div. 1992). One function of permanent alimony is to provide for lost earning capacity experienced during the marital years when employment is limited as a result of the demands of raising the family. Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000).

During the first ten to twelve years of the marriage, plaintiff, to accommodate the needs of bearing and caring for the two children, did not work or only worked part-time, while defendant was employed on a full-time basis. Both parties acknowledge the presence of marital discord in the latter years of the marriage. At that time, their personal relationship changed and their focus centered on work and raising the children. At varying times, the parties shared vacations, dinners, and holidays, while at other times they interacted very little. Judge Kieser characterized their relationship as "a functioning marriage."

When considering whether to award alimony, defendant's argument suggests that the trial court should have heavily weighed the parties' emotional estrangement, which existed while they resided together independently providing for the specific needs of the children and household. We conclude that the quality of the marital relationship is not dispositive when determining the appropriateness of awarding alimony. See Mani v. Mani, 183 N.J. 70, 91-92 (2005) (marital fault is not relevant when determining alimony except specific cases of egregious conduct affecting the parties' economic life and cases of outrageous actions violative of societal norms). New Jersey cases have long expressed the view that "alimony is neither a punishment for the payor nor a reward for the payee." Aronson v. Aronson, 245 N.J. Super. 354, 364 (App. Div. 1991) (citations omitted).

The trial judge properly considered and made specific findings under N.J.S.A. 34-23(b), when he awarded alimony pursuant to the final judgment of divorce. Crews v. Crews, 164 N.J. 11, 25 (2000). He weighed the length of the marriage, the income disparity and economic needs of the parties, their future income earning abilities, and the disproportionate division of assets equitably distributed. These alimony findings are supported by "adequate, substantial, [and] credible evidence," Cesare, supra, 154 N.J. at 411-12, and will not be disturbed on appeal.



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