On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-2005-04A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Sabatino and Alvarez.
Following a six-day trial, the Family Part entered a Final Judgment of Divorce ("FJD") in this case on April 13, 2007. Plaintiff, Donald J. MacFarland ("the ex-husband"), appeals various aspects of that FJD pertaining to alimony, child support, equitable distribution, and life insurance. He also appeals a pretrial order dated November 18, 2005, rejecting his application to enforce settlement terms between the parties that had previously been presented orally in open court on August 4, 2005. Defendant, Michele MacFarland ("the ex-wife"), cross-appeals several aspects of the FJD, relating to the sufficiency of child support, the preparation of a Qualified Domestic Relations Order ("QDRO"), and the court-ordered sale of the marital home. The ex-wife also cross-appeals the trial court's denial of her application for counsel fees.
We affirm in all respects the pretrial order declining to enforce the parties' alleged oral agreement, which was never reduced to a mutually-executed writing. We do so in light of several statements made on the record during the August 4, 2005 proceedings, reflecting that the proposed terms would not be enforceable unless the parties each signed such a writing. Consequently, the contested issues were properly reserved for trial. With respect to the ensuing FJD, we affirm it in part and vacate it in part, remanding the case for further proceedings on several discrete financial issues.
The parties were married on September 6, 1975, in Shrewsbury, New Jersey. They have been New Jersey residents since that time. Three children were born of the marriage: a son in February 1980; an older daughter in June 1984; and a younger daughter in September 1986.
At the time of the divorce trial in 2006, the son was twenty-six years old, emancipated, and living in the marital home with his mother and his two sisters. He had recently become unemployed. According to the ex-wife, her son paid some of the household expenses after the ex-husband left the marital home.
Meanwhile, at the time of trial, the older daughter (then age twenty-two) and the younger daughter (then age nineteen) were unemancipated college students. Both of them were then enrolled at Pennsylvania State University. The older daughter was expected to graduate within two semesters in June 2007, while her younger sister was expected to graduate in December 2008.
According to the ex-wife, the older daughter has medical problems that include Lyme disease, Bell's Palsy, Raynaud's disease, prior back surgery for scoliosis, chronic pain, and "difficulty with short term and long term memory." The younger daughter has been designated a "special education student," although her college grades have been good. Both daughters lived with the ex-wife at the marital home during the summer months and school holidays. They have worked as instructional assistants for autistic children, and were working as lifeguards during the summer of 2006 when the divorce trial was ongoing.
The ex-wife, who was fifty-two years old at the time of trial, is a high school graduate. She has been employed by the Ocean County School District as a "Secretary I" for about ten years. She has a vested pension with the school district. The pension's present value was not determined at trial, perhaps because the total investment in the pension was less than $3,000 at that time and its future value was believed to be small.
The ex-wife's annual base salary from her employment with the school district is $16,080. She supplements that amount by working overtime for the district during the school year and thirty hours per week during the summer months, at a rate of $10.00 per hour. Additionally, from November 2004 to May 2005, the ex-wife temporarily worked as a secretary to the advertising manager of a real estate broker, for a wage of $12.00 per hour. As a result of her combined employment that year, the ex-wife reported gross earnings in 2005 of about $22,000.
The ex-wife testified that her employment with the real estate agent was cut short in May 2005, when she was hospitalized with a medical problem involving her heart. This hospitalization was one of a series of health problems that has affected the ex-wife over the years. In particular, she underwent a back fusion surgery in 2001, as well as surgeries on one of her legs and one of her feet. Additionally, she testified that she has a chronic pain disorder. During the summer of 2005, the ex-wife was taking fourteen prescription medicines per day to treat that disorder and her other medical problems. Further, as a result of a stomach operation that she underwent in 2004, the ex-wife reduced her weight from 350 to 135 pounds by the time of the trial in 2006. Despite this medical history, the ex-wife stated at trial that her physical condition was improving.
For his part, at the time of the trial in August 2006, the ex-husband was fifty-five years old. He is also a high school graduate. He described himself as being "in pretty good shape," although he had recurring pain in his shoulders and hips because of a fall in 2004. The ex-husband could point to no medical condition that would negatively affect his ability to obtain gainful employment, although he testified that he was too "tired" and "hurt" to perform the work that he used to do.
Regarding his employment history, the ex-husband testified that he began working in 1975 for the road department of the Borough of Deal. He also occasionally filled in as a relief driver in the Borough's fire department. The ex-husband began working full-time in the fire department in September 1977.
During his employment with the fire department, the ex-husband generally worked every third day. This consisted of ten days, or 240 hours, per month, where each "day" consisted of a twenty-four-hour shift. The ex-husband filled some of his off-days from the fire department with side employment. According to the ex-wife, when her spouse retired, he "was working ten days a month in the firehouse. . . . [and] three days a week elsewhere or [at] other jobs." The ex-husband corroborated that he performed side employment in that manner "for [twenty] years."
From 1978 to 1984, the ex-husband conducted a lawn-care business by himself for about twelve "regular customers," earning about "250, 300 [dollars] a month." Thereafter, from 1986 to 1999, the ex-husband worked three days per week for Bob Simmons Contracting, where he made about $215 per week after taxes. In 1999, the ex-husband began working for James Pappas's construction company, where he usually worked two or three days per week. According to the ex-husband, he had hoped to earn $800 per week by working for Pappas after retiring from the fire department.*fn1
The ex-husband elected to retire from his position with the fire department on September 1, 2001, at the age of fifty. At that time, he had twenty-five years and four months of service credit in the New Jersey Police and Firefighters Retirement System, which he had joined on May 1, 1976. The ex-husband was earning a salary of $63,000 per year when he retired. He immediately began receiving pension income of $3,483.71 per month ($41,840.52 annually) upon his retirement. By June 1, 2004, the ex-husband's monthly pension income had increased to $3,546.35 ($42,556.20 annually).
The ex-husband testified that he retired from the fire department because he "got tired of it." He stated:
I was working every third day. I got one weekend off every three weeks. I worked holidays. I missed a lot in my life because I worked there.
The ex-husband expanded on this in answering a specific inquiry from the trial judge, stating that he retired at age fifty because "I was sick of the job" and "I wanted to leave."
Marital strife between the parties was ongoing for many years, both before and after the ex-husband's retirement. The record indicates that the parties separated, and the ex-husband left the marital home for extended periods, on at least four occasions: from December 1998 to early 1999, from the spring of 1999 to the latter part of summer 1999, from February 2002 to January 2003, and from April 29, 2004 to the time of the 2006 divorce trial.
After retiring from the fire department, the ex-husband continued working for Pappas for a short time. The ex-husband reported to the taxing authorities that he earned $4,115 working for Pappas in 2003, earning about $100 per day. That reported sum was incorrect, because the ex-husband was admittedly being paid by Pappas "under the table." According to his testimony, the ex-husband actually earned $10,185 in 2003.*fn2 He later filed an amended federal tax return that reported those corrected 2003 earnings.
As of 2004, the ex-husband was being paid $42,063 annually in pension benefits, plus $1,400 annually that he earned as a volunteer firefighter in Deal. At some point following his retirement from the fire department, he applied for a position as a janitor at Monmouth University. He ultimately declined to pursue that job, after learning that it paid only eight or nine dollars per hour. In response to a question from the trial judge, the ex-husband acknowledged that he had not looked for employment with any other person or organization following his retirement, except for the janitorial position. Instead, in August 2004, the ex-husband elected to become self-employed, starting his own carpentry/handyman business as a sole proprietor.
The ex-husband's federal tax return for 2004 reported gross receipts of $18,220 from his self-employment in what he described as his "carpentry" business, and that, after deducting business expenses of $12,040, he reaped a net profit of $6,180 for 2004. For 2005, the ex-husband submitted an operating statement from his accountant, listing his business expenses for that year. The operating statement indicated that he had gross income of $19,000 and a net income of $9,153 for 2005, after subtracting expenses of $9,847. The ex-husband also submitted an operating statement from his accountant for the portion of 2006 before and during the divorce trial, January 1 to August 31, 2006, showing that he had gross business income of $15,168 and net income of $7,154, after deducting expenses of $8,014.
The ex-husband's records showed that after retiring from the fire department, he performed no work during many weeks of the year. When challenged on cross-examination about the small amount of money that he claimed to earn from his business, the ex-husband responded that he had submitted estimates to numerous prospective customers, but simply was not obtaining work from many of them.
The parties' main asset in their joint name was their marital home, which had an agreed-upon fair market value of $225,000 at the time of trial. The remaining mortgage on the home was about $36,000. The parties had no significant investments, such as stocks or bonds. In addition, the exhusband's pension with the fire department was estimated to have a value of $836,923, for purposes of equitable distribution.
The ex-husband filed a complaint for divorce in June 2004, and the wife filed a counterclaim for divorce in August 2004. Both parties were represented by counsel.
The divorce case was tried in the Family Part over six days in August 2006. The sole witnesses were the ex-husband and the ex-wife. The parties each moved into evidence a variety of documents, including their Case Information Statements ("CIS forms"), bank statements, pension documents, and other items of a financial nature.
After the trial concluded, the trial judge issued a lengthy written decision on April 13, 2007. The decision was accompanied by the FJD, which was prepared by the court. The FJD granted the parties a divorce, based upon their separation for more than eighteen months. The FJD awarded the ex-wife alimony, child support for the two unemancipated daughters, a half-interest in the ex-husband's pension, and other miscellaneous items of equitable distribution. It also provided for health and life insurance, and ordered the sale of the marital home. Neither side was awarded counsel fees.
Both parties have appealed discrete aspects of the trial court's financial determinations. We shall address these arguments categorically.
As a threshold matter, we first consider the ex-husband's appeal of the November 18, 2005 order, which denied his motion to enforce the parties' alleged divorce settlement and instead set the matter down for trial. The ex-husband's application stemmed from an earlier proceeding before the court on August 4, 2005, the date on which the divorce trial originally had been scheduled to begin. The parties and their respective attorneys had conferred that day at the courthouse and attempted to settle their differences. Those discussions led to both sides and counsel appearing later that same day before the trial judge.
At the outset of the August 4, 2005 proceeding, the exhusband's attorney recited many of the terms of the proposed settlement. Notably, the proposed agreement included a waiver of alimony by the ex-wife. The parties were then each questioned on the record about the proposed settlement, under oath. The ex-husband testified that he understood the agreement, was willing to abide by it, and verified that he wanted "to be bound" by it. The ex-husband also testified that his profits from his business were such that he only earned about $12,000 per year from his self-employment.*fn3
For her part, while the ex-wife testified that she understood the terms of the settlement, she was not explicitly asked and did not explicitly testify that she would abide by or be bound by the agreement set out on the record. Instead, in response to the question posed to her by her attorney, "[i]f I were to ask you those identical questions [that were asked of the ex-husband], would your answers be the same as [the ex-husband's] answers," the ex-wife replied only that "I believe so." She made no plain and indisputable affirmative statement at that time, acknowledging that the settlement terms expressed on the record were then binding.
Rather, in response to her counsel's inquiry of "[d]o you feel that you are in sufficiently a stable enough frame of mind so that you don't need additional time to think about [the settlement agreement set out on the record]," the ex-wife answered "[n]o." Despite this response, the ex-wife's attorney ceased his examination at that point without following up about his client's reticence. Nor did the ...