February 11, 2008
BETTY L. MAJKRZAK, PLAINTIFF-RESPONDENT,
BRYAN S. MAJKRZAK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-78-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges S.L. Reisner and Baxter.
Defendant Bryan S. Majkrzak appeals from a portion of the March 23, 2007 dual judgment of divorce that ordered him to pay plaintiff $500 per week in permanent alimony. We affirm.
The parties were married on September 7, 1985. Four children were born of the marriage, who range in age from fifteen to twenty. Only one is emancipated. At the beginning of the trial, the parties resolved the issues of custody, parenting time, child support and equitable distribution. They also agreed that alimony would be permanent, but were unable to agree upon the amount of such alimony. Consequently, the trial addressed solely that issue.
Plaintiff, who was forty-two years of age, testified that for the past ten years she had worked at a local parochial school as a computer instructor and librarian. Although she completed some courses at a community college, she did not graduate. Because she does not have a college degree, plaintiff is not eligible to teach at a public school. In order for plaintiff to become a certified teacher and increase her earnings, she would be required to obtain a bachelor's degree, complete six months of student teaching and pass the National Teacher's Exam. She earned $30,765 in the 2006-2007 school year, and testified that the school where she works is "not doing well" financially and that salaries such as hers had been frozen.
Plaintiff testified that the parties' property settlement agreement entitled her to $157,000 for her share of the equity in the marital home and $300,000 from defendant's retirement account at IT&T; however, because of early withdrawal, her share of defendant's retirement account would be subject to a penalty. Plaintiff intended to purchase a four-bedroom split level home in Fair Lawn for $529,000 in which she and the three unemancipated children of the marriage would live. Plaintiff anticipated making a down-payment of between $350,000 and $375,000 on the house, which would result in a monthly payment of $1,000 for principal and interest. Property tax would add $600 to that amount. The home is on a piece of property not larger than fifty by one hundred feet or seventy-five by seventy-five feet. The fourth bedroom is a converted garage.
Defendant, who is fifty-three years of age, testified that he had already "established [himself] in [both his] education and in [his] job prior to the marriage." Although he obtained a master's degree after the parties' marriage, the tuition was paid entirely by his company. He is employed as a software engineer for IT&T with an annual income of $129,303. He believes his prospects of remaining at IT&T until retirement are good.
In his testimony, defendant pointed to the discrepancy between the number of hours the parties work per day. He pointed out that he works eight hours per day exclusive of his lunch hour, whereas plaintiff is able to leave work at 3:15 each day and is only required to work 180 days per year. In light of plaintiff's schedule, he maintained "there's room to increase there." The property settlement agreement provided that the parties would share parenting time equally, with the children's residence alternating between the two homes each week.
In a written decision, Judge Selser summarized the testimony and the information provided in each party's case information statement (CIS). He noted that plaintiff's projected mortgage and taxes on the Fair Lawn home she intended to purchase were $1,200 more per month than the parties were paying for the marital home, which had no mortgage and the property tax was only $410 per month. The judge observed that alimony should be set at "what the wife would have the right to expect as support if living with her husband," subject, however, to the need to now maintain two separate living arrangements. The judge reasoned:
The court has carefully considered the factors listed in N.J.S.A. 2A:34-23(b). As stated above, the needs of the parties are about equal to maintain their previous lifestyle at $5,500 a month. The ability of the parties to pay that amount is what is called into question. This is a long marriage of 21 years duration. The defendant is 10 years senior of the plaintiff in age, but both enjoy good physical and emotional health. The standard of living established in the marriage [is] a middle class [lifestyle] in a typical home in Clifton, New Jersey where the parties had a joint income in their marriage at about $160,000 a year gross income at the end of the marriage. Both parties have the type of job where increases in their pay each year would be slight and not of a significant jump. Both possessed the ability to continue to earn at their present levels. Since the children are grown, their parental responsibilities have declined. The equitable distribution arrived at by the parties is going to impact their income in that, both are going to be increasing their cost of living. The plaintiff has agreed that she can be bought out of the former marital home, however, it is her desire to continue to liv[e] in a single family home with the children and that will significantly add to her mortgage free housing costs at the current time. The defendant will undoubtedly have to re-mortgage the marital home in order to pay off the plaintiff and take title to himself, thus, increasing his housing costs as well. The court has carefully calculated alimony that will be permanent alimony by the defendant to the plaintiff. The court's award will be in the sum of $500 per week. . . . The money available to plaintiff will be her earned income ($592 per week gross) and the alimony of $500 per week. After taxing these amounts the plaintiff shall have leftover about $884 per week in after tax income. To this we must add the agreed upon child support of $231*fn1 per week giving the plaintiff a weekly budget of $1,115 converted monthly is $4,832 a month net income.
The defendant on the other hand has his earned income ($2,487 a week gross), less his $500 in alimony leaving him an after taX income of $1,335 a week. Take out his child support paid with after tax dollars and he now has $1,104 a week available for his costs of living. As the court has indicated above, both parties had indicated in their Case Information Statement disclosures that their costs of living were about the same.
While neither party will be totally delighted with this court's decision, you must bear in mind that it is impossible for this court to keep both parties in exactly the same position they had when married, enjoying a dual income and only one set of expenses.
On appeal, defendant argues that the trial court committed reversible error by: 1) applying a "projected standard of living" to calculate plaintiff's need; 2) failing to consider the impact of equitable distribution; 3) failing to consider plaintiff's full earning capacity; and 4) failing to distinguish between defendant's earning capacity prior to the marriage and his earning capacity established during the marriage.
We review the judge's findings of fact and conclusions of law in accordance with our standard of review. As we observed in Steneken v. Steneken, 367 N.J. Super. 427, 434-35 (App. Div. 2004), aff'd in part and modified in part, 183 N.J. 290 (2005):
The award of spousal support is broadly discretionary. . . . Of course, the exercise of this discretion is not limitless. In itemizing the thirteen specific criteria to be considered in fixing alimony, the statute [N.J.S.A. 2A:34-23(b)] sets guidelines and objective standards which frame the exercise of the court's discretion. . . . [T]he determination of alimony remains within the broad discretion of the trial court.
We thus review the alimony award for an abuse of discretion.
When establishing the amount of alimony to be paid by the supporting spouse, the judge must apply the criteria that are contained in N.J.S.A. 2A:34-23(b). Crews v. Crews, 164 N.J. 11, 25 (2000). "[T]he general considerations are the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Id. at 24 (quoting Lepis v. Lepis, 83 N.J. 139, 152 (1980)). Moreover, the supporting spouse's obligation must be "tie[d] . . . to the quality of economic life during the marriage, not bare survival. The needs of the dependent spouse . . . contemplate . . . continued maintenance at the standard of living [the dependent spouse] had become accustomed to prior to the separation." Ibid. Additionally, the "court should state whether the support authorized will enable each party to live a lifestyle 'reasonably comparable' to the marital standard of living." Id. at 26. (quoting from N.J.S.A. 2A:34-23(b)(4)). Judge Selser's opinion considered those very factors.
The principal reason the judge fixed alimony at $500 per week was the enormous disparity in the parties' income. The judge observed that plaintiff's income is $30,755 per year compared to $129,303 per year for defendant. Accordingly, his annual income is more than four times that of hers. It is evident that plaintiff would be unable to maintain a lifestyle even remotely resembling the lifestyle the parties maintained during the marriage unless the alimony award is high enough to enable her to share a reasonable portion of defendant's current income.
The judge also considered plaintiff's "earning capacit[y], educational level[ ] . . . and employability." N.J.S.A. 2A:34-23(b)(5). The record demonstrates that for the first nine years of the parties' marriage, plaintiff remained at home raising the children. Accordingly, she has been working less than half as long as defendant. Plaintiff has a high school education, and it is not reasonable to expect plaintiff to earn a college degree or significantly increase her income. The judge was entitled to consider the disparity in the educational levels, vocational skills, and employability of the parties, see ibid., as well as the nine-year interruption in plaintiff's career while she stayed home to raise the children. See N.J.S.A. 2A:34-23(b)(9).
The judge also properly considered plaintiff's anticipated housing expense of $1,600 per month once she purchased a new home, which was an element of her "actual need." See N.J.S.A. 2A:34-23(b)(1). For his part, defendant will continue to reside in the marital home, upon which there is no longer a mortgage. His housing expense will therefore be limited to $400 per month in real estate taxes, which is considerably less than plaintiff's monthly housing expense of $1,600.
Defendant argues that the judge erred by applying plaintiff's "projected standard of living" when he calculated plaintiff's need. We disagree. As we have observed, the alimony statute directs a court to consider the "actual need" of each party. N.J.S.A. 2A:34-23(b)(1). We reject defendant's argument that plaintiff has improperly purchased a home that is so expensive that it vastly exceeds the standard of living during the marriage. In light of the relatively small size of the house and its lot, we disagree with defendant's contention that plaintiff has chosen an extravagant home that exceeds the marital standard of living. As plaintiff testified, it is not a "spacious mansion."
We likewise reject defendant's argument that the judge failed to consider the impact of equitable distribution. Defendant argues that if plaintiff had purchased a less expensive home, one that was "equivalent in price to the marital home for $315,000," she could have invested approximately $185,000 from the proceeds of her share of equitable distribution. At a five percent rate of return, that $185,000 would yield $9,250 per year, thereby reducing his alimony obligation considerably. That argument ignores an important factor: by investing a substantial portion of her equitable distribution proceeds into the purchase of a new home, plaintiff has brought her monthly mortgage payment down to a reasonable level, one which is no doubt comparable to the cost of an apartment that would house one adult and three children. We are unpersuaded by defendant's argument that the judge ignored the impact of equitable distribution. Judge Selser's opinion analyzes that subject extensively.
Defendant next argues that the judge erred by failing to consider plaintiff's full earning capacity. He argues that if she found employment after she finished her workday at 3:15 p.m. and worked during the summer, she could earn an additional $4,719 per year. Defendant provides no evidence of the type of work that might be available to her for those time intervals, nor do his assertions take her limited work history and lack of a college degree into consideration. We thus find no merit in his argument that plaintiff is under-employed.
Finally, defendant argues that the judge erred by failing to distinguish between his own earning capacity prior to the marriage and his earning capacity established during the marriage. He argues that "plaintiff did not contribute to [his] education, job employment, or career. [He] completed his bachelor's degree in 1976, nine years prior to the marriage. [He] began his current employment in August 1980, five years prior to the marriage." Defendant provides no legal argument on this issue and does not analyze the significance of those facts.
Moreover, defendant's argument about his work history during the marriage ignores the benefits that accrued to him and the parties' four children when plaintiff stayed home for nine years to raise the children. His argument also ignores the statute's requirement that a court consider the "history of the . . . non-financial contributions to the marriage . . . by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities." N.J.S.A. 2A:34-23(b)(9). Stated differently, his argument focuses only on his final salary at the time of the divorce and ignores plaintiff's non-financial contribution to the marital partnership that enabled him to remain steadily employed and earn an increasing income.
We thus conclude that Judge Selser carefully analyzed the record and made findings of fact that are well-supported by the evidence before him. We further conclude that the alimony award of $500 per week was fully justified in light of those facts and the provisions of N.J.S.A. 2A:34-23(b). The alimony obligation the judge ordered was well within his discretion, defendant's arguments to the contrary notwithstanding.