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Finne v. Finne


May 19, 2008


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

Per curiam.


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.


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 alimony and counsel fee award as well as some distribution to plaintiff of the financial assets." We left it to the trial judge's sound discretion to fashion "a fair result."


On remand, the trial judge entered an interim order that, among other things, required each party to submit proposed findings of fact and conclusions of law. On November 30, 2005, both parties stipulated that no further testimony or evidence would be adduced.

In an oral decision dated June 30, 2006, the trial judge reexamined his earlier decision in light of our remand. First, he concluded that all marital assets would be divided equally between the parties, including the marital portion of defendant's pension plan with Applied Water Management.*fn2 The judge then concluded that limited duration alimony was appropriate, and he did not alter the amount; however, the judge extended the term of the alimony from five to nine years, i.e., concluding defendant's obligation on December 31, 2009. Lastly the judge determined that plaintiff was entitled to a counsel fee award of $60,000.

Defendant filed his appeal challenging all three provisions of the order. Plaintiff filed her cross-appeal in which she argued the alimony award should have been permanent rather than of a limited duration and the award of counsel fees was insufficient.

We begin by noting defendant's argument that the trial judge erred in failing to order a plenary hearing to determine the parties' then-current circumstances. Defendant contends that the judge should have rejected the stipulation both sides made to conduct the remand hearing on the record already in existence. We find the argument to be of insufficient merit to warrant any extensive discussion. R. 2:11-3(e)(1)(E). We only note that our remand required the judge to "reconsider" limited issues, not to try the case anew. Therefore, particularly in light of the agreement both sides reached, the judge did not mistakenly exercise his discretion by not holding a plenary hearing.

Next, we note that our review of challenges to findings made by a judge sitting without a jury is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Trial court findings will typically remain undisturbed unless "they are so wholly unsupportable as to result in a denial of justice," and are upheld wherever they are "supported by adequate, substantial and credible evidence." Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters," we accord particular deference "to family court fact-finding." Cesare, supra, 154 N.J. at 413.

With these general principles in mind, we turn our attention to the arguments the parties now raise before us.


Defendant argues the judge misinterpreted our instructions upon remand regarding equitable distribution, failed to make adequate findings of fact and conclusions of law, and simply awarded plaintiff fifty percent of the marital assets instead of applying the statutory factors contained in N.J.S.A. 2A:34-23.1 and engaging in the requisite analysis required under relevant case law.

In distributing marital assets, a three-step analysis is required. Rothman v. Rothman, 65 N.J. 219, 232 (1974); Genovese v. Genovese, 392 N.J. Super. 215, 225-26 (App. Div. 2007). First, the judge must decide what specific property of each spouse is eligible for distribution. Next, the marital assets' value for purposes of distribution must be determined. Finally, the judge must decide how the distribution between the parties can most equitably be made. Once the marital assets have been identified and valued, the judge must apply the factors contained in N.J.S.A. 2A:34-23.1 and equitably distribute the assets between the parties. Sculler v. Sculler, 348 N.J. Super. 374, 380 (Ch. Div. 2002). The statute contains a rebuttable presumption "that each party made a substantial financial or non-financial contribution to the acquisition of income and property while the party was married." N.J.S.A. 2A:34-23.1.

Defendant argues that the trial judge failed to take into consideration "important facts" regarding the parties' "most significant marital asset, the net proceeds of sale of the marital home." These, he argues, include defendant's use of premarital funds for the down payment of the marital residence, his enhancement of the residence's value through physical labor, and the financial support he rendered to the maintenance of the home.

However, this ignores the judge's finding at trial, which we affirmed on appeal, that defendant's down payment on the marital residence constituted a gift and could not be credited to him for purposes of equitable distribution. He also determined that plaintiff had contributed to the upkeep and care of the home through "homemaking" activities.

Defendant also claims that the judge simply presumed, based upon our remand, that the marital assets "should be divided equally." However, in his oral decision, the judge noted that his earlier distribution of the assets, "look[ing] at the totality of the circumstances," was not "a fair disposition." Relying upon the facts he found at trial, the judge explicitly concluded that an equal division of the marital assets was fair because the assets were acquired during the marriage, the relationship was a joint marital enterprise, plaintiff contributed by caring for the house, and that the parties "did things together."

Appellate review of an order of equitable division of marital property is narrow. Genovese, supra, 392 N.J. Super. at 222 (citing Valentino v. Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998)). The reviewing court must focus its attention on whether "the trial court mistakenly exercised its broad authority to divide the parties' property or whether the result reached was bottomed on a misconception of law or findings of fact that are contrary to the evidence." Genovese, supra, 392 N.J. Super. at 223. "[T]he discretion of the trial judge in making the delicate and difficult decision respecting equitable distribution" must be relied upon and should not be disturbed unless it constitutes an abuse of discretion. Savoie v. Savoie, 245 N.J. Super. 1, 5 (App. Div. 1990).

While the judge did not extensively articulate his reasoning regarding the statutory factors, we conclude that "the resultant award of equitable distribution would remain unchanged had they been expressly considered and applied." Winer v. Winer, 241 N.J. Super. 510, 524 (App. Div. 1990). We are confident in reaching this conclusion because at trial, the judge did analyze all the statutory factors and made factual findings from the testimony. In his decision on remand, the judge explicitly indicated that he was incorporating the findings he made at trial. Therefore, we must conclude that the judge considered the statutory factors to determine that by splitting the marital assets evenly, he was effectuating fair distribution, as he put it, "both in the whole as well as in its constituent parts." We affirm that portion of the order under review.


Both defendant and plaintiff appeal from that portion of the order that granted plaintiff limited duration alimony. Each contends that the judge failed to apply the criteria set forth in N.J.S.A. 2A:34-23(b), and each argues that the judge failed to provide any detailed rationale for his award.

The award of alimony is largely discretionary with the trial judge. 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). However, the exercise of a trial judge's discretion to award alimony is not limitless and N.J.S.A. 2A:34-23(b) "sets guidelines and objective standards which frame the exercise of the court's discretion." Id. at 434. These statutory guidelines are intended to further the legislative goal of alimony, i.e., to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). If the judge determines that permanent alimony is not warranted, "[c]onsideration of any other form of alimony, including limited duration alimony, may follow." Cox v. Cox, 335 N.J. Super. 465, 479 (App. Div. 2000)(citing N.J.S.A. 2A:34-23(c)).

Limited duration alimony is appropriate in marriages that are not of long duration and where an economic need for alimony is established; but, "[l]imited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole . . . ." Id. at 478. Limited duration alimony, like permanent alimony, is awarded in recognition "that marriage is an adaptive economic and social partnership." Id. at 479. However, it is "the duration of the marriage [that] marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded." Id. at 483.

We conclude that plaintiff's cross-appeal in this regard is without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). Contrary to her argument, it is quite clear that the judge considered at length the statutory factors in both denying permanent alimony and deciding that limited duration alimony was appropriate at the end of this marriage of "intermediate length." We find no mistaken exercise of his discretion.

Defendant "does not take issue with the [judge's] determination that the award of alimony be of limited duration." Rather, defendant argues the judge arbitrarily determined that nine years, as opposed to five years, was the appropriate term.

We concede that the judge, once again, failed to articulate in any specific fashion his rationale. However, for similar reasons expressed above regarding the equitable distribution award, we do not think this requires reversal. As we noted, the judge did in fact consider all the statutory factors when he concluded that permanent alimony was not appropriate. In deciding whether limited duration alimony is appropriate, the judge was obligated to consider the very same statutory factors. Cox, supra, 335 N.J. Super. at 483. We do not think it necessary to set aside the award simply because the judge did not once again specifically reiterate the findings he made regarding the statutory factors.

N.J.S.A. 2A:34-23(c), however, provides that "[i]n determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate." In this regard, we have said that "[t]he length of a term of limited duration alimony is based primarily upon the historical facts of the marital enterprise, not predictions about future events[.]" Gordon v. Rozenwald, 380 N.J. Super. 55, 67 (App. Div. 2005).

After trial, the judge found that plaintiff had not given up all her earning potential during the marriage. Although he noted the modest amounts she earned as income, the judge found that she was able to support herself prior to the marriage. However, in his oral opinion on remand, the judge took note of the length of this marriage, and in reconsidering his prior award of five year's duration; he concluded that five years provided for "an insufficient transfer of earning power" from defendant to plaintiff. Although the judge also referenced that defendant "might be desirous of retiring" at the end of the nine-year term, such a consideration was irrelevant to determining the appropriate length of the award. See Gordon, supra, 380 N.J. Super. at 68 (noting that the term of limited duration alimony "is not based upon estimates about financial circumstances at the time of termination").

Nevertheless, we conclude that the judge based his decision to extend the term of the limited duration alimony on the "primarily historical" factors of the parties' marital enterprise and the statutory factors. Ibid. We find no reason to reverse this portion of the order either.


Both parties appeal the award of $60,000 in counsel fees to plaintiff. Defendant argues that the trial judge failed to consider the applicable factors under Rule 5:3-5(c) and failed to require plaintiff's counsel to submit affidavits or certifications in compliance with Rule 4:42-9(b), both at the time of the original trial and after the remand. Plaintiff appeals the award of $60,000 on grounds that it is insufficient to cover the additional costs associated with the appeal and the remand, and claims that she is entitled to an award that now exceeds $122,000.

Rule 5:3-5(c) governs the award of counsel fees in a matrimonial action. We need not engage in an extended discussion of the factors to be considered under that rule, under Rule 4:42-9, which it incorporates, or under R.P.C. 1.5, incorporated by reference into Rule 4:42-9. The award of counsel fees in a matrimonial action lies within the discretionary authority of the trial judge. R. 5:3-5(c); Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007).

In considering the issue at the time of the first appeal, we noted that the judge made certain findings that were "supported by the record and justify an award of fees." Finne v. Finne, supra, No. A-1970-02 (slip op. at 17). However, we found no "cogent rationale for the award of only $15,000." Ibid. On remand, the judge engaged in little further analysis, and certainly did not specifically refer to any affidavits or supporting documents that demonstrated the reasonableness and accuracy of the amount of fees sought or supported the award actually made. See Addesa, supra, 392 N.J. Super. at 79-80 (upholding the judge's exercise of discretion where the application for counsel fees was supported a detailed certification); R. 4:42-9(b). We cannot therefore conduct an adequate review of the counsel fee award. R. 1:7-4; see also Pressler, Current N.J. Court Rules, comment 1 on R. 1:7-4(a)(noting critical importance of trial court's findings and conclusions for purposes of appellate review).

Likewise, at oral argument, plaintiff's counsel advised us that the cross-appeal in this regard was supported by additional documents he supplied in conjunction with the judge's request for proposed findings of fact and conclusions of law on remand. The judge did not reference these in his oral opinion and they are not part of the appellate record.

Reluctantly, therefore, we must remand the matter to the trial judge for consideration of the appropriate counsel fee award. Before reaching any conclusion in this regard, the judge should require strict adherence to the procedural requirements of the various rules we have cited, and his findings and conclusions should be adequately stated thereafter. We note that in deciding the issue after trial, the judge was reluctant to conduct any hearing on the issue, and the transcript reveals extensive confusion by all involved as to the actual bill for legal services provided to plaintiff. While we appreciate the judge's desire to make judicious use of time and resources, the decision to award any amount of counsel fees must be set forth in adequate detail on the record.

Affirmed in part; reversed in part. We do not retain jurisdiction.

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