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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...