March 27, 2008
RITA DIANE PURNELL, PLAINTIFF-RESPONDENT,
THOMAS H. PURNELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Sussex County, Docket No. FM-19-297-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 5, 2008
Before Judges Axelrad and Payne.
Defendant Thomas Purnell appeals from portions of an April 25, 2007 post-judgment matrimonial order requiring him to pay his former wife: (1) 40% of his total net overtime earnings as additional alimony; (2) one-half of the funds he liquidated from a Dreyfus investment account, earmarked in the property settlement agreement (PSA) for college expenses; and (3) alimony in the amount of $900 per month, reduced by plaintiff's child support obligation of $86 per week, resulting in bi-weekly alimony of $265.*fn1 We affirm.
The parties separated in April 2002 after eighteen years of marriage. They signed their PSA in 2004, although its terms were orally placed on the record when they were divorced on October 15, 2003. Paragraph 2.1, Alimony, provided defendant would pay his former wife $1,000 per month as permanent alimony and further provided as follows:
This support obligation takes into consideration that the Husband will work 2 overtime days per month. Should he work more than 2 overtime days in a month, he will pay 40% of the net money earned through the overtime to the Wife as additional support . . . . The alimony obligation will be subject to review upon the retirement of the Husband and if the Wife should earn more than $400 per week through her own employment.
In Paragraph 2.7, College Education, the parties "acknowledge[d] the existence of a Dreyfus investment account . . . established for the purpose of college expenses for the children[, which] funds shall be applied for these education expenses only and either Party shall be entitled to an accounting of these funds for this purpose."
The April 25, 2007 order emanated from plaintiff's enforcement motion and defendant's motion to set support for the parties' younger daughter, a high school senior who was living with him, and for review of alimony. Defendant provided no additional compensation to his former wife in the years following the parties' divorce and refused to provide an accounting or copies of his pay stubs until court-ordered to do so on November 3, 2006. Following a review of his pay stubs, plaintiff discovered defendant had received overtime compensation in the years following the divorce. Both parties were represented by counsel at oral argument on March l6, 2007. Defendant argued the PSA regarding his overtime was broad in nature and gave him full use of the first sixteen hours in any given month of employment without any payment due his former wife. Thus he contended she was only entitled to receive money generated after the first two overtime days. Judge Gannon rejected defendant's interpretation of the PSA, relying on its plain language that defendant was to pay plaintiff "40% of the net money earned through overtime . . . as additional support" and concluding the agreement required defendant to pay 40% of the total amount of overtime for that month if he worked more than two overtime days in that month. Accordingly, the court ordered defendant to pay plaintiff $3,733 in overtime earnings as additional support.
Apparently, when plaintiff went to use the Dreyfus fund for their older daughter's expenses at Fairleigh Dickinson University, she learned defendant had liquidated the account on March 20, 2003 and received $3,733.92. Defendant argued his former wife knew he closed the fund and used it towards housing costs prior to the divorce. Therefore, despite its inclusion in the PSA, he should not be held accountable for the funds. The judge rejected this argument, noting in his statement of reasons that if this were the case, defendant should not have agreed to the express terms of the PSA that included the Dreyfus fund as a source for education costs.
At the time of the motion, defendant, a Bergen County Sheriff's Officer, was earning about $103,000 per year and plaintiff, a receptionist at Fairleigh Dickinson University, was earning about $26,000. Defendant's attorney did not request an elimination of alimony. Defendant sought a reduction based on the changed circumstances that plaintiff was unemployed at the time of the divorce but was now earning more than $400 weekly, the point for reconsideration of alimony under the PSA. The court reviewed alimony and reduced defendant's obligation to $900 per month, concluding it was an appropriate amount of support considering the parties' disparate incomes. The court entered the order which is the subject of this appeal.
On appeal, defendant renews the arguments he made to the trial court respecting his first sixteen hours of overtime, the Dreyfus investment account that he liquidated, and his request for a further reduction in permanent alimony. Judge Gannon is entitled to particular deference because of the special jurisdiction and expertise that Family Part judges have with respect to their fact-finding abilities. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We discern no abuse of discretion or misapplication of law in the rulings challenged by defendant. We are in accord with the trial court's reading of the plain language of the parties' PSA respecting defendant's overtime and Dreyfus investment fund obligations. Moreover, the parties' PSA provides for a review of permanent alimony should plaintiff earn more than $400 per week, which the trial court performed based on the record presented. In view of the parties' disparate incomes, we discern no basis to second-guess the trial court's ruling respecting alimony.