On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FM-02-01738-93.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2007
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
Emelito Gonzales (father) appeals from two post-divorce judgment orders entered on October 7, 2005, that: (1) converted his limited duration (nine years) alimony obligation to Marie A. Gonzales (mother) into permanent alimony; (2) denied his cross-motion to compel the mother to contribute to the college education of the children; and (3) awarded counsel fees to the mother. On the other hand, the mother cross-appeals from the portion of the same orders that denied her request that the father be compelled to obtain life insurance to secure the alimony obligation. She also challenges the amount of permanent alimony awarded. We affirm on the appeal and cross-appeal.
The parties were divorced on September 21, 1995, after a fifteen-year marriage. They had four children, now ages twenty-eight, twenty-six, twenty-five and twenty-two. A property settlement agreement (PSA) was incorporated into the judgment of divorce. Pursuant to the PSA, the father was to pay $60,000 per year in alimony for the first three years; $50,000 the next three years; and $40,000 for the final three years. Alimony was to end on September 21, 2004. According to the PSA, thereafter "the [mother] expressly waives and relinquishes present and future claims against the [father] for alimony, and the [father's] obligation to pay alimony . . . shall cease." There was no indication in the PSA or on the record at the time of the divorce whether the alimony was intended to be "rehabilitative alimony" or "limited duration alimony."
The oldest child, Christopher, lived with the father at the time that the PSA was signed. Child support was set at $40,000 per year for the three children, Joseph, Jennifer and Kim, then living with the mother (allocated at $13,333.33 per child). The parties acknowledged that Joseph has "special needs and as such his future emancipation is uncertain." Joseph has Down's Syndrome, an IQ of 40, speech and language disorders, and a hearing impairment. He can not be left at home unsupervised because he does not recognize danger and has a problem gorging on food. The father agreed to let the mother and the three younger children occupy the marital residence for another four years, at which time, the property would be equitably distributed.
The father is a radiation oncologist physician, who was employed by St. Elizabeth's Hospital from 1980 until 1986. In 1987, the father went to a "fee for service" practice and no longer received a salary from the hospital. In 1995, the year the PSA was executed, he reported $272,262 in annual business income. The father is currently an employee of Catskill Radiation Onccology Consultants. At the time of the hearing on this motion, the father was grossing about $250,000 a year from his job. His mother died during the plenary hearing. He testified that he expected to inherit about $700,000 from her.
The mother earned a degree in radiation therapy in 1975 and worked as a radiation therapy technician at St. Vincent's Hospital, earning between $13,000 to $15,000 per year, until her first child was born in 1979. She attended Manhattan College from 1979 through 1980, but did not complete the program due to her pregnancy with Joseph. She did not return to work for the remainder of the marriage. This was by agreement of both parties. She spent her time volunteering and advocating on behalf of Joseph and taking care of the rest of the family.
After the parties separated, the mother worked as a radiation therapist technician on a per diem basis for three weeks and earned $2,056. In 1992, she obtained a degree in massage therapy. Thereafter, she attended the Tri-State Institute from September 1992 through June 1995 and earned a Diploma in Acupuncture. In April 1996, she started a private acupuncture practice. In 1997, she reported a business income of $5,855. In 2001, she reported a net business income of $13,181, plus other earned income of $3,870.
The Prior Alimony Application
In 2001, the mother applied to convert the spousal support to permanent alimony. Following a hearing, Judge Patrick Roma denied the application. We affirmed on appeal, but noted:
We note parenthetically Judge Roma's observation that neither party is precluded from a modification application in the future. While expressing no cavil with the trial court's disposition of the current issues based on the record developed, we urge the trial court on any further application to consider whether, given all pertinent factors, including the parties' experiences under the regime ordered herein, this matter should be regarded as an appropriate situation for an award of permanent alimony.
[Gonzales v. Gonzales, No. A-1390-01T2 (App. Div. July 10, 2003).]
In September 2002, the mother began working part-time at Dunroven Nursing Home at $11.50 per hour, plus medical benefits. That year, the Dunroven income was $1,500 and her acupuncture business net income was $3,099. The following year, she had a net business income of $18,313, plus income from Dunroven of $3,696, for a total of $22,009.
Beginning in September 2002, the father and his second wife, who had experience caring for people with Down's Syndrome, assumed equal physical custody and care of Joseph.
In 2004, the mother filed the present application to convert the spousal support to permanent alimony; to secure the permanent alimony obligation with a life insurance policy; and for counsel fees. The father cross-moved to compel the mother to contribute her share of the children's college costs and medical expenses.
Following a plenary hearing, Judge William R. DeLorenzo issued a written opinion on October 7, 2005. Thereafter, the father filed an appeal and Judge DeLorenzo issued a second written opinion, dated December 13, 2005, analyzing the counsel fee issue and ordering the father to pay $33,500 in counsel fees.
The judge considered the following proofs. In April 2004, the mother purchased commercial property in Nyack, New York for $229,000. She financed the purchase by taking a $150,000 mortgage on her home and putting another $150,000 mortgage on the Nyack property. That year, she earned $20,400 net business revenue from her acupuncture practice; $3,450 from her job as an independent contractor at an acupuncture clinic; $13,775 from Dunroven; and $1,784 in rental income. Thus, her total income that year totaled $39,409.
Gary Sherman, a certified public accountant, reviewed each party's tax returns and prepared cash flow summaries for 2000-2003. These summaries showed cash flow after payment of taxes, and for the father, after payment of alimony and child support.
The proofs showed that when Joseph turned twenty-one, he was no longer entitled to services. The mother testified that Joseph's needs impede her ability to maximize her gainful employment. According to the mother, she took the Dunroven job because Joseph was allowed to go with her. He delivered papers and mail and helped move residents. The mother also arranged jobs for Joseph at Friendly's and Hennessey's Restaurant. The father has ...