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Jones v. Duch

December 20, 2007

EVA JONES, PLAINTIFF-APPELLANT,
v.
PETER DUCH, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-570-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2007

Before Judges Lisa and Lihotz.

Plaintiff Eva Jones appeals from a May 17, 2006 Family Part post-judgment order that denied her request to convert an award of rehabilitative alimony to an award of permanent alimony, and granted the defendant's application that she pay $2,000 towards his counsel fees and costs. We affirm.

After the parties' almost thirteen-year marriage, they separated on July 31, 1999. Initially, plaintiff filed a complaint for separate maintenance, but later both parties filed actions for divorce. They successfully resolved the equitable distribution of the marital assets, custody of their two children, and their respective rights of parenting time. The remaining disputes were the subject of a bench trial.

Following the twenty-day trial, Judge Kapalko rendered a fifty-eight page written opinion on March 3, 2003. The principal issues included "the amount and duration of alimony to be awarded to plaintiff, if any, the amount of child support . . . the adjustment of pendente lite alimony retroactively, if appropriate, and the contribution of the parties to the other's counsel fees and costs." Relevant to our review is the trial court's determination regarding alimony.

Judge Kapalko analyzed the financial needs of plaintiff and calculated that "the plaintiff would require a total of $140,007 net income to meet solely her annual needs, inclusive of mortgage costs . . . ." The trial judge calculated defendant's annual needs to be $143,000. However, we determined this was a clerical error and defendant's calculated annual needs also totaled $140,007. Jones v. Duch, A-5996-04 (App. Div. Feb. 8, 2005) (slip op. at 4).

Prior to trial plaintiff, who is a medical doctor specializing in obstetrics and gynecology, was "earning in excess of $213,000 in net business income[,] before taxes[,] through her practice." The trial judge reviewed plaintiff's business gross receipts and the reported profit for the years 1997 to 2001. The documents evidenced that the gross receipts reported in 2000 had increased from the level realized in 1999. The trial judge labeled 1999 as the "high-water mark year," of plaintiff's earnings. In contrast, he labeled 2001 as "an aberrant year." The gross business income for 2001 was $481,575, from which plaintiff received $143,000 gross or $110,000 net, along with $23,592 from other perquisites from employment. The court stated that "the transient medical problems of the plaintiff were the primary cause of this downturn [in 2001] and are not likely to be repeated or to continue for the long term."

Defendant, too, is a medical doctor specializing in cardiology. Prior to trial, defendant had commenced a new business association after being terminated from a prior position. As a result, the court estimated defendant's annual gross income, including perquisites of employment, to be $240,000.

In his analysis, Judge Kapalko also weighed the impact on plaintiff's earning ability following a spiral fracture of her leg, suffered when she slipped on ice in January 2001. For a little more than two months, she worked with her leg in a cast, confined to a wheelchair. It was later discovered that plaintiff had "three compressed nerves and a damaged tendon," which were surgically repaired on June 19, 2002. Plaintiff's injury and her subsequent recovery affected her ability to accept new patients. Consequently, her business income declined.

Based on his findings that the parties were "capable of generating sufficient income to meet their respective long term needs without the assistance of permanent alimony," Judge Kapalko concluded: "permanent alimony under the criteria of 'need' and 'the ability to pay' [was] not warranted." After assessing the remaining statutory factors found in N.J.S.A. 2A:34-23, he found that "for the very short term there will [be] disparity in income between the parties." The trial court reasoned that plaintiff's income would remain depressed during the approximately one-year period of recovery from her injury. Using that time-frame, Judge Kapalko fixed the period of rehabilitative alimony. He ordered defendant to pay plaintiff $535 per month, nontaxable rehabilitative alimony for twelve months. Defendant began the payments on November 1, 2002, and they ended on October 31, 2003.

Plaintiff states she filed a motion to convert the rehabilitative alimony award to a permanent award in 2003. Because plaintiff's appeal was pending, a different motion judge declined to consider the application because the trial court lacked jurisdiction. We affirmed the trial court's decision in all respects in an unreported opinion.

Plaintiff again moved to convert "the award of rehabilitative alimony to an award of permanent alimony" and other relief in April 2006. In her supporting certification, plaintiff explained that despite her "best efforts, [her] business has not rehabilitated as expected by the court" and she was unable to meet her monthly expenses and maintain the marital standard of living. Plaintiff separately filed a Case Information Statement (CIS) and attached her 2003 and 2004 individual income tax returns, which recorded gross business receipts as $544,697 and $513,861, respectively. She did not have the final 2005 information from her medical practice, but stated her 2005 gross business income had dipped to $284,927, resulting in ...


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