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Finne v. Finne

May 19, 2008

PAULA J. FINNE, PLANTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
WILLIAM H. FINNE, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-320-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 14, 2008

Before Judges Payne, Sapp-Peterson and Messano.

Defendant William H. Finne appeals from the trial court's June 30, 2006, order that 1) divided "[a]ll marital assets" of the parties "equally"; 2) continued limited term alimony of $550 per week for a "term of nine years, concluding on December 31, 2009"; and 3) awarded plaintiff counsel fees of $60,000. Plaintiff Paula J. Finne cross-appeals from the award of limited duration alimony and counsel fees. We affirm all aspects of the order under review, with the exception of the counsel fee award. We remand that issue to the trial court for further proceedings consistent with this opinion.

I.

The order that we now review arose from the trial court's decision on remand that was required by our January 28, 2004, opinion, Finne v. Finne, No. A-1970-02 (App. Div. Jan. 28, 2004). We recite at length from our opinion the facts adduced at the original trial that took place after the entry of a judgment of divorce on August 19, 2002, and was limited to issues "regarding equitable distribution, alimony and counsel fees."

The parties were married in April 1990. It was a second marriage for both. Plaintiff was thirty-four years old at the time of marriage and forty-six years old at the time of the divorce. Defendant was forty-seven years old at the time of the marriage and fifty-nine years old at the time of the divorce. There were no children of the marriage. At the time of marriage, defendant was well established in a managerial position with the Hydro Group and had some premarital assets. The trial judge found, based upon joint tax returns, that the total marital income from 1990 to 1995, during the time of the Hydro Group employment, ranged from a high of $149, 906, which was reported for 1991, to a low of $95,189, which was reported for 1995. From 1996 to 1999, during the Allied Waste Management employment, the total marital income ranged from a high of $77,877, which was reported for 1996, to a low of $70,262, which was reported for 1997.

Prior to the marriage, plaintiff worked as a bartender/barmaid. She continued to work during the marriage, but on a somewhat reduced schedule. Her financial contributions to the marriage ranged from approximately $7000 to $10,000 a year. Defendant, then, was obviously the dominant financial contributor for the marriage, both as to employment income and investment assets. Moreover, he was the primary contributor to the purchase of the marital home, using $53,000 premarital funds for the down payment. However, the trial judge correctly considered the down payment a gift or contribution to the marriage, noting that the house was deeded in both parties' names and that "essentially [defendant] put the house in her name knowing full well where the money came from."*fn1 And, too, plaintiff was the primary homemaker, taking care of the cooking cleaning, laundry and other necessary household chores. Thus, while the marriage was not a traditional long-term marriage . . . there is no evidence in the record that the parties were not a marital partnership for the nine plus years of their relationship.

The trial judge awarded plaintiff limited duration alimony for five years, retroactive to January 2001, initially in the amount of $450 per week, and effective September 12, 2002, increasing to $550 per week. Regarding equitable distribution, he awarded plaintiff fifty percent of the net proceeds of the marital home, and fifty percent of the "marital portion of defendant's pension with his former employer, Hydro Group"; defendant retained his premarital inherited interests in two businesses, the other fifty percent of the net proceeds from the sale of the marital home, his Porsche automobile, all of the marital financial assets, and one hundred percent of his pension plan with his current employer, Allied Waste Management. On the issue of counsel fees, the judge found that plaintiff's counsel fees were approximately $60,000, and of that amount, $20,000 had been previously paid from the escrow proceeds from the sale of the former marital residence "without prejudice." He awarded plaintiff additional counsel fees of $15,000, for a total of $35,000.

In reversing and remanding, we concluded that based upon the trial judge's findings that a marital partnership existed, all property acquired during the marriage clearly qualified for equitable distribution, regardless of whether or not such assets were attained primarily through defendant's efforts. We also noted that it was error for the judge to credit defendant's use of premarital funds in purchasing the marital residence against distribution of the financial assets because the down payment was a gift to plaintiff. Furthermore, we concluded that given defendant's retention of his premarital business interests, half the net proceeds from the sale of the marital residence, his greater earning capacity, and plaintiff's limited counsel fee award, there was no "cogent reason" to deprive plaintiff of some interest in the marital financial assets.

In reviewing the judge's award of limited duration alimony, we refrained from interfering with both the judge's conclusion that alimony was appropriate and its amount. However, we failed to discern any basis for his finding that five years of support was appropriate. Finally, although we found an award of counsel fees was supported by the record, we concluded that the judge failed to make any findings with respect to the reasonableness of the fees, the appropriateness of a limited award of $15,000, and the impact such a limited award would have on the equitable distribution he ordered.

Although we affirmed various aspects of the trial judge's award, we remanded for further proceedings as to three specific portions. First, we remanded "for reconsideration [of] the award of limited duration alimony as opposed to permanent alimony or a combination thereof." Second, we remanded for reconsideration of "the 100% distribution to defendant of the investment accounts and like marital assets," as well as the "'deletion' of the marital portion of the Allied Waste Management pension." Lastly, we remanded for reconsideration of "the amount [of counsel fees] awarded" to plaintiff. We hastened to add that our decision "should not be understood to require an increase in the ...


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