June 17, 2008
DONALD J. MACFARLAND, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
MICHELE MACFARLAND, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 12, 2008
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 ex-husband's attorney inquire about this equivocal response. Significantly, the trial judge then stated:
Both of the parties, as [the exhusband's counsel] has said, both parties understand that if I accept this agreement, I do not pass judgment on the fairness of the agreement. That's a decision that the two of you make. However, once the agreement is signed, it becomes a contract which is enforceable under the court laws. [Emphasis added.]
The trial judge then informed the parties that the settlement agreement would be the starting point for any future modification motions based upon changed circumstances. The judge also noted that this divorce litigation would be at an end when the court signed the appropriate order. The judge elaborated:
You can't later come back in and say to me I didn't understand or I didn't appreciate what was going on or whatever.
If you have any questions, you should deal with your attorney now and resolve them beforehand. But otherwise, when I put my signature to that order, that's it. You understand that, ma'am [addressing the ex-wife]. [Emphasis added.]
Thereafter, the parties gave testimony concerning their request for a divorce from bed and board. After confirming that he indeed wanted a divorce, the ex-husband added, in response to a question from his counsel, that he also wanted "this Court to incorporate the property settlement agreement into the judgment of divorce." The ex-wife testified that she, too, wanted a divorce. However, she was not asked and she did not likewise testify that she wanted the trial judge to incorporate within the divorce judgment the settlement terms that had been placed on the record.
The ex-husband's counsel indicated that he would prepare the written settlement agreement, and that he would have to "get approval" of the agreement from his client before he could send the document on to the ex-wife's counsel. At that juncture, the ex-wife made it clear that she wanted to review and then sign any written embodiment of the oral settlement before she became bound by any such agreement. She added that, "I love you all, but I don't trust anybody."
Subsequently, the ex-husband's counsel drafted and circulated a written agreement, embodying what he considered to be the mutual settlement terms. The ex-wife refused to sign it unless it was modified.
The ex-husband then filed a motion to enforce the settlement, arguing that the ex-wife was bound by the oral agreement that had been presented in court on August 4. The ex-wife filed an opposing certification and supporting papers, asserting that the written version submitted to her by the exhusband's counsel did not mirror the agreement set out on the record. She also asserted that the ex-husband had misled the court because, contrary to his sworn assertions to the judge on August 4 that his business was only minimally successful, he subsequently had intimated to her that his business was doing well, and that he was having trouble keeping up with all of the construction work available to him. She alleged that her ex-husband was earning approximately $40,000 per year, not the $12,000 figure that he had attested to in open court on August 4. The ex-wife also stressed the trial judge had confirmed at the August 4 proceeding that the settlement would only become binding when the court had reviewed an agreement signed by both parties and had entered a corresponding judgment.
Following oral argument, the trial judge denied the exhusband's enforcement motion. The judge based his denial on "what I said to [the ex-wife], what I said to both parties in fact, that the parties had a right to look at this contract and decide whether or not it should or should not be signed, [and] that it is enforceable at the time that it is signed." The trial judge's interpretation of what he said at the August 4 hearing thus comports with the ex-wife's position that the settlement terms placed on the record on that date would only be binding when and if their written embodiment were later accepted and mutually signed by the parties.
Moreover, the trial judge noted that, if the parties and counsel thought that the court was incorrect in essentially treating the settlement agreement set out on the record as a proposed contract that could be subsequently accepted or rejected by the parties, then counsel should have objected because "they had an obligation to stand and say something different and disagree with me." Hence, the judge suggested that the parties, through their counsel, must have tacitly recognized and accepted that the settlement placed on the record on August 4 was merely a proposed and non-binding oral contract until its written embodiment was approved and signed by the parties.
Subsequently, in canvassing the case's history in his written post-trial opinion in April 2007 accompanying the FJD, the trial judge reiterated that he had denied the ex-husband's motion to enforce the settlement agreement, because it "appeared to the [c]court that there had not been a true 'meeting of the minds' among the parties." Consequently, the judge determined that he "would not enforce the property settlement agreement as drafted."
On appeal, the ex-husband contends that the trial court should have enforced the settlement agreement that was set out orally on the record. In doing so, the ex-husband relies upon case law indicating that, "[w]here the parties agree upon the essential terms of a settlement, so that the mechanics can be 'fleshed out' in a writing to be thereafter executed, the settlement will be enforced notwithstanding the fact the writing does not materialize because a party later reneges." Lahue v. Pio Costa, 263 N.J. Super. 575, 596 (App. Div.) (quoting Bistricer v. Bistricer, 231 N.J. Super. 143, 145 (Ch. Div. 1987)), certif. denied, 134 N.J. 477 (1993); Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.) (same), certif. denied, 142 N.J. 455 (1995).
As we recognized in Harrington, however, this cited rationale depends upon there being a basic agreement between the parties that can be said to exist, one that may be subsequently "fleshed out." Harrington, supra, 281 N.J. Super. at 46-47. If there is such a true agreement between the divorcing parties that those parties have expressly indicated is fair and acceptable to them, then ordinarily that agreement should be enforced by the courts. Puder v. Buechel, 183 N.J. 428, 430, 437 (2005). Here, however, the trial judge correctly determined that there had been no such "meeting of the minds" between the parties about the settlement, and thus there was no resulting enforceable agreement.
"In order for a contract to form . . . there must be a 'meeting of the minds,' as evidenced by each side's express agreement to every term of the contract." State v. Ernst & Young, L.L.P., 386 N.J. Super. 600, 612 (App. Div. 2006) (quoting Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 538 (1953)). "A meeting of the minds occurs when there has been a common understanding and mutual assent of all the terms of a contract." Knight v. New England Mut. Life Ins. Co., 220 N.J Super. 560, 565 (App. Div. 1987), certif. denied, 110 N.J. 184 (1988). A "contract does not come into being unless there [is] a manifestation of mutual assent by the parties to the same terms." Johnson & Johnson, supra, 11 N.J. at 538.
There are substantial grounds here to support the trial judge's finding that no such mutual assent was achieved at the August 4 hearing. First, the ex-wife did not plainly indicate at that hearing that she had accepted and agreed to be bound by the terms that the ex-husband's counsel stated on the record. Instead, she only indicated that, if asked the same questions that the ex-husband was asked concerning the settlement terms, she "believed" that she would respond as he did. That tepid response does not clearly express a then-present assent to be bound by the terms of the settlement agreement. Furthermore, the ex-wife later stated at the August 4 hearing that her "frame of mind" was such that she needed additional time to think about the settlement agreement before agreeing to be bound by its terms. Neither attorney followed up on that statement to attempt to establish a more definitive mindset on her part.
Moreover, the trial judge, on the record, plainly afforded the ex-wife the opportunity to review a later written embodiment of the settlement agreement to be drafted by the ex-husband's counsel before she had to decide whether to enter into that agreement and sign it. The judge led the ex-wife to believe that her signature on the agreement was required in order for the ex-husband to seek enforcement of the agreement by the court. The ex-wife had good cause to rely upon the judge's statements in that regard. It would have been simply inequitable to enforce the oral agreement under these circumstances. See Petersen v. Petersen, 85 N.J. 638, 642 (1981) (matrimonial settlement agreements must be "fair and just" to be enforceable). We therefore affirm the trial court's November 2005 order declining to enforce the attempted oral agreement.*fn4
Having determined that the Family Part judge properly declined to enforce the alleged oral settlement and instead proceeded to trial, we now turn to the substantive results of that trial that are the focus of the appeal and the cross-appeal. In doing so, we recognize that our scope of review is limited. As we assess the trial judge's factual findings and conclusions, we are obliged to give due regard to his credibility determinations and his feel of the case, based upon his unique opportunity to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Additionally, "[b]ecause of the [Family Part's] special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and the conclusions that flow logically from those findings of fact. Cesare, supra, 154 N.J. at 413. Consequently, we will not disturb the judge's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).
On the whole, we concur with most of the determinations expressed by the trial judge in his detailed, thirty-nine-page opinion. Even so, there are a few discrete areas in which the trial judge's opinion is either incomplete or lacks sufficient evidentiary support. With respect to those discrete matters, which we identify in the following pages, the case needs to be remanded for clarification, correction or, as may be needed, reconsideration.
The ex-husband challenges the trial judge's award of permanent alimony to the ex-wife, which the judge calculated at $878 per month. We have no hesitation in sustaining an award of permanent alimony in this case. However, the judge's methodology in arriving at the specific monthly figure, and the FJD's unexplained provision making the ex-husband payor responsible for income taxes on the alimony, warrant further examination by the trial court.
Alimony "is an economic right that arises out of the marital relationship." Mani v. Mani, 183 N.J. 70, 80 (2005). It "provides the dependent spouse with 'a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage.'" Ibid. (quoting Stiffler v. Stiffler, 304 N.J. Super. 96, 98 (Ch. Div. 1997)).
These objectives of alimony are codified in a thirteen-factor test set forth in N.J.S.A. 2A:34-23(b). The trial judge fairly applied these factors in deciding that the ex-wife in this case was entitled to an award of permanent alimony. Among other things, we note that the parties had a lengthy marriage, spanning over thirty years. N.J.S.A. 2A:34-23(b)(2). During the marriage, the ex-wife earned as a secretary less than half of what the ex-husband earned annually as a firefighter. N.J.S.A. 2A:34-23(b)(5). As shown by the ex-wife's CIS form detailing her expenses, she continues to need financial relief from her former spouse to pay her bills. N.J.S.A. 2A:34-23(b)(1). The marital lifestyle, while not lavish, appears to have been sufficient to provide a home to this family and a moderate standard of living with their three children. N.J.S.A. 2A:34-23(b)(4). The ex-wife's health has been generally inferior to that of the ex-husband. N.J.S.A. 2A:34-23(b)(3). These, and several other considerations that we need not enumerate here at length, amply justify the trial judge's finding that this is indeed a case warranting permanent alimony, in spite of the absence of an alimony provision in the proposed oral settlement that had previously been presented in August 2005.
With respect to the amount of alimony awarded by the trial court, we generally do not overturn such awards unless we conclude that the trial court "clearly abused its discretion, failed to consider all the controlling legal principles or . . . [we are] well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole." Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996) (citing Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993)); see also Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998) (alimony awards should be affirmed if "supported by substantial credible evidence in the record as a whole").
A key component of the trial judge's alimony analysis was his determination that the ex-husband is presently underemployed. The judge began his evaluation of that income by discrediting the ex-husband's testimony that the parties did not expect him to be employed full-time following his retirement from the fire department. As the judge saw it, the parties' debts, living expenses, and college expenses were simply too high for them to have "expected to survive financially," absent continued full-time employment by the ex-husband. The judge thus accepted the ex-wife's testimony that the parties had anticipated income from the ex-husband's continued full-time employment, after his departure from the fire department.
The judge pointedly noted that the ex-husband had an "extended history of[,] in essence[,] defrauding the Internal Revenue Service and the State of New Jersey by underreporting his income." Based on that history, the judge indicated that he "cannot be sure whether [the ex-husband] is actually making only a reduced amount [that he now claims he earns through his self-employment] or something much more that he is concealing." Hence, the judge did not believe that the ex-husband was earning only the small net business profits that he claimed he was earning, respectively, $9,153 in 2005 and $7,154 in 2006.
The judge found the ex-husband's proofs of his current earnings to be either scant or lacking. Additionally, the judge noted that the ex-husband had only looked for one other job, i.e., the janitorial position at the local university, following his retirement, and that he declined to apply for work in retail construction-supply establishments. The judge observed that, instead of attempting to find more gainful pursuits, the ex-husband "has chosen to . . . earn a low income" because "he is simply tired of working." "While this may be the case," the judge noted, "it does not justify a resulting lack of funds to which [the ex-wife] and the children should be entitled by way of alimony and child support."
The judge thus concluded that the ex-husband was "willfully underemployed" because there was "no just cause for a man of his experience and ability to simply sit back and be satisfied with earning only $9,000 per year," given the family expenses and debt that existed when he retired in 2001. Because of that willful underemployment, the judge found that income should be imputed to the ex-husband. The judge specifically found that the ex-husband "could be expected to work full time as a general purpose handyman, not at the lower level of a carpenter's helper as suggested by [the ex-husband] and not at the higher level of a union carpenter as suggested by [the ex-wife]."
The trial judge thereby imputed yearly income of $42,931 to the ex-husband, which was the "average gross salary for experienced maintenance and repair worker[s]," according to the "U.S. Department of Labor, Employment and Training Administration statistics." By the judge's calculations, the ex-husband's net income after taxes from such imputed employment would be $34,931.
As to the ex-wife's annual income, the judge concluded that the proofs showed that she earned $22,000 in gross income per year, and that her net annual income after taxes was $18,980. Although the judge recognized that the ex-wife could possibly supplement her income "by a small amount," he also found that "it is unlikely that she could do more because of her [problems with her] current health." Hence, the judge found that the ex-wife, in contrast to her former spouse, was "fully employed."
Addressing the ex-husband's financial needs, the court accepted the amounts listed on the ex-husband's CIS form and determined that he had expenses of $2,811 per month, or $33,740 per year. Likewise consulting the ex-wife's CIS, the judge determined that she had expenses of $3,335 per month, or $40,020 per year.
The judge further determined that the ex-husband's annual pension of more than $42,000 should be divided evenly between the parties as part of equitable distribution,*fn5 resulting in a annual post-tax income to each of the parties of $18,512. For the ex-husband, this distribution meant that he would receive annual post-tax income of $18,512 from his pension and post-tax imputed earnings of $34,931, totaling $53,443 in annual post-tax income. Consequently, the judge concluded that the ex-husband can expect to earn $19,703 more than his claimed financial needs of $33,740.
For the ex-wife, the award of half of the ex-husband's annual pension to her meant that she would receive annual post-tax income of $18,512 from the pension, plus post-tax income of $18,980 from her employment, totaling $37,492 in annual post-tax income. Because the ex-wife's annual financial need was stated at $40,020 and her net annual income was $37,492, the trial judge concluded that the ex-wife would have "a shortfall of $2,528 per year" in income to meet that need.
At this juncture of his analysis, the trial judge decided to equalize the parties' annual incomes. Although the judge did not explicitly indicate why he decided to do so, the record suggests that the parties' current combined income became, by default, the only feasible financial resource to assure the ex-wife a fair level of support. The court characterized the parties' relationship as a "shared responsibilities marriage" of thirty-one years. We perceive that the judge was fairly attempting to take that thirty-one-year relationship, and the marital standard of living, into proper account when he equalized their post-divorce incomes through the alimony award.
The only other distributable asset was the marital home, valued at $225,000. After paying off a $30,000 mortgage debt, an $11,000 credit card debt, a pension-loan debt, a tax debt, a medical debt, and taking into account the parties' counsel fees, the sale proceeds from the house could not meet any of the exwife's financial needs. Thus, the only source of money realistically left to the court to address those needs was the parties' current incomes.
Having decided to equalize the parties' incomes, the trial judge added together their net annual earnings, arriving at a combined net figure of $90,935. The judge divided that sum evenly, to produce a target "equalized" annual income of $45,468 for each party, after taxes. The judge then indicated that, "[t]o reach this level, [the ex-wife] will need $10,537 annually from [the ex-husband]. This will result in a monthly alimony payment to [the ex-wife] from [the ex-husband] of $878. This sum will be taxable to [the ex-husband]."
Reviewing these various calculations in light of the record and the applicable law, we sustain the trial judge's well-supported findings that the ex-husband is underemployed and the propriety of imputing additional earnings to him. We agree, however, that the record at present is insufficient to support the court's specific use of the federal wage standard for "experienced maintenance and repair worker[s]." The ex-husband is a high school graduate who had been employed by others as a road department worker, firefighter, and a construction worker, doing construction jobs such as replacing windows and doors, sheet-rock installation, and tile work. His self-employment included work in lawn care, helping install "bubble systems around docks and pilings," and work involving "screen doors, front doors, replacement windows, sheet rocking, spackle, [and] tile sometimes." In his testimony, the ex-husband described himself as a "handyman."
The record on appeal does not include a copy of the annually federal standard that the trial judge utilized to attribute $42,931 in annual income to the ex-husband. Thus, it is not possible for us to determine what skills an "experienced maintenance and repair worker" is expected to have under the federal scheme, or whether the ex-husband's occupational skills fairly correspond to that classification. Accordingly, the matter must be remanded for the further exploration of that issue.*fn6
On the flip side, we sustain the trial judge's finding that the ex-wife's reported income of $22,000 is a fair gauge of her own earning capacity, and the judge's rejection of the exhusband's claim that his former spouse can earn more than that. The ex-wife testified at length as to her many physical problems and to the effect those problems have had on her daily life. While no medical expert testified on her behalf, it is telling that the ex-husband did not dispute the existence or severity of these health problems at trial. She has been steadily employed for a decade, at what amounts to a full-time capacity in the field of education. Her effort to supplement her earnings as a secretary in the realtor's office in 2004-05 ceased when her health deteriorated. We shall not disturb the judge's findings as to her limited earning capacity.
The ex-husband further contends that the trial judge erred in awarding the ex-wife $10,537 per year in alimony, when the shortfall between her income and reported expenses on her CIS form was only $2,528 per year. According to the ex-husband, "[i]f any alimony was warranted, it should have been awarded in the amount of the shortfall, or $2,528 per year and not $10,537."
As we have already noted, the trial judge determined that the "shortfall" between the ex-wife's yearly post-tax income from all sources ($37,492) and her financial need ($40,020) was $2,528. Rather than award only that amount as alimony, however, the judge elected to equalize the parties' incomes, awarding the ex-wife additional sums in yearly alimony. The parties' current combined annual income was the only means available to provide the ex-wife with support at a level somewhat commensurate with what she enjoyed during the marriage. In this vein, the judge remarked that the ex-wife "cannot be expected to be able to support herself on her own salary to a level comparable to the marital standard of living. [The ex-husband], on the other hand, has the means to substantially improve his standard of living upon taking a full-time job."
These observations by the judge, as the trier of fact, strongly suggest that he elected to equalize the parties' incomes and to increase thereby the ex-wife's annual alimony above the "shortfall" amount of $2,528 to help the ex-wife maintain the marital standard of living. Because the "basic purpose of alimony is the continuation of the standard of living enjoyed by the parties prior to their separation," Innes v. Innes, 117 N.J. 496, 503 (1990), the judge did not err in equalizing incomes, in an effort to achieve that well-recognized purpose.*fn7 Consequently, on remand the trial judge is free to continue to pursue that goal of equalization, after reassessing the level of earnings fairly imputable to the ex-husband.
As a final aspect of the alimony award, we consider the FJD's specification that the ex-husband, rather than the ex-wife, bear the income tax consequences of the alimony he pays her. That disposition, although it is not illegal per se, is contrary to general practices and customs, particularly where the tax responsibilities have not been shifted by the parties through a mutually-negotiated settlement.
Normally, alimony is a deductible expense to the taxpayer-spouse paying it and is recognized as income to the taxpayer-spouse receiving it. Boardman v. Boardman, 314 N.J. Super. 340, 345 (App. Div. 1998); Hughes v. Hughes, 311 N.J. Super. 15, 35 (App. Div. 1998). Unfortunately, the judge did not explain why he declined to follow this usual course. In other parts of his opinion, the judge made each party responsible "to pay taxes on their proportionate share of the proceeds from the sale of the [marital] house," and made them jointly liable to pay an earlier federal tax debt. For some unclear reason, the ex-husband was made responsible for paying taxes on the alimony that the ex-wife is to receive. The FJD contains no procedural mechanism for implementing this unconventional allocation.
It may well be that the trial judge was trying to spare the ex-wife of the tax burdens flowing from the alimony paid to her, and thus leave more money each year in her pocket. There may be easier ways to accomplish this objective, however, such as awarding a higher gross alimony amount to the ex-wife, and having her bear responsibility for the taxes to be netted out of those revenues.*fn8 In any event, we discern that this is another sub-issue warranting the judge's attention on remand.
In sum, we affirm the trial judge's determinations that (1) the ex-wife is entitled to permanent alimony; (2) the ex-husband has been underemployed since his resignation from the fire department; (3) the ex-wife is not underemployed; and (4) it is fair and just to equalize the parties' post-divorce total incomes in order to approximate their former common standard of living. We remand, however, for further consideration of the appropriate occupational level for imputing the ex-husband's present earning capacity, and also for reconsideration of the court's allocation of tax responsibilities relating to the alimony payments.
In addition to awarding alimony, the trial judge ordered the ex-husband to pay the ex-wife $5,480 annually in combined child support for their two unemancipated daughters. The judge also ordered that this child support obligation be retroactive to August 13, 2004, the date on which the ex-wife filed her counterclaim seeking, among other things, child support. The ex-husband appeals both the prospective and retroactive child support amounts as excessive, and the ex-wife cross-appeals the awards as insufficient. We disagree with both parties.
The trial judge correctly recognized that the State guidelines for calculating child support are inapplicable because both daughters are over the age of eighteen and live most of the year at college as non-commuters. See Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2304 (2008). The judge also correctly recognized that a child beyond the age of eighteen attending college is deemed unemancipated and entitled to ongoing support from her parents. Pressler, supra, comment 2.2.1 on R. 5:6A; see also Newburgh v. Arrigo, 88 N.J. 529, 543-44 (1982).
During the litigation, the two daughters submitted case information statements that listed their college expenses and their living expenses while they were away at school. The ex-wife and the daughters failed, however, to present at the time any proofs concerning the actual payments made to Penn State University for tuition or books. Consequently, in his written opinion, the judge declined to consider any tuition or book expenses because the court lacked "adequate documentation" of such expenses. Instead, the judge noted that he would only consider the daughters' list of "other expenses associated with their attending college."
The judge then reviewed these living expenses associated with the daughters' college attendance. He determined that their combined expenses for each year of college amounted to $2,510 per month, or $30,120 for the year, i.e., $15,060 annually for each daughter.
Subtracting the daughters' summer earnings from their expenses and "considering that each [daughter] can borrow half of the remaining amount outstanding on their own account, that is, $5,480 per year, or supplement that amount by grants, if possible," the judge determined that the parents should be responsible for the shortfall. He calculated that shortfall as $5,480, or $10,960 for both children per year. The trial judge then divided the $10,960 yearly in the daughters' college living expenses evenly between the ex-husband and the ex-wife, directing that "each [party] . . . pay $5,480 per year for the combined education of their daughters."
We are satisfied that the judge's approach in calculating child support, given the omission of trial proofs concerning tuition and book-related cash, was reasonable and supported by substantial evidence. The judge's decision to divide those remaining costs evenly between the parents is fair and equitable, and dovetails with the judge's separate endeavor to equalize the parties' annual incomes through the alimony award. Consequently, the child support obligations will not be affected by any further adjustments to the ex-husband's income that may be made on remand and thereby translated into a higher or lower alimony figure. We also note that the court's child support analysis substantially adheres to the general precepts for college support enunciated in Newburgh, supra, including, among other things, the needs of each child, the parties' standard of living and respective economic circumstances, the capacity of each child for college education, the ages and health of the parents, the other financial resources available to each child, the relationship of the daughters to their parents, and the extent to which the parties had contemplated that their children would attend college. Without reiterating the judge's Newburgh analysis in full here, we are persuaded that his ultimate assessment of those factors is reasonable.
The ex-husband argues that the $5,480 annual child support award presents an excessive burden for him. In particular, he complains that the judge erred in making his obligation retroactive to August 2004 and failed to take into account the $2,200 that the ex-husband was paying monthly to the ex-wife in unallocated pendente lite support up to the time of trial. We disagree.
A pendente lite order may be modified prior to or at the time of the entry of final judgment in a divorce action. Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995). Having assessed the credibility of the parties' financial contentions at trial, the judge was free to revisit the sufficiency of the pendente lite award in light of that assessment. The record does not establish that the ex-husband's pendente lite payments were adequate to maintain the ex-wife's personal standard of living, plus the additional burdens associated with helping support the two daughters' own needs. Indeed, the record is bereft of any showing that the pendente lite payments specifically encompassed the daughters' living expenses while they were away at school.
Additionally, we reject the ex-husband's assertion that the trial judge should have reduced his support obligation because of financial contributions that the parties' son made to his mother's household costs prior to trial. Those contributions from the son were never quantified at trial. The judge was entirely reasonable in not reducing child support based on some speculative notion of the worth of those contributions, just as it was reasonable for the judge to not increase child support based upon the daughters' unproven tuition costs.*fn9
We also note that the $5,480 annual child support obligation due from each of the parents is temporary, and presumably should terminate by the end of this calendar year when, according to the ex-wife's testimony, the younger daughter is expected to graduate.
On the other hand, we also reject the ex-wife's contention that the judge set child support too low, because he allegedly failed to take into account the daughters' living expenses during the summer months and school vacations when they have resided with her. In actuality, the judge multiplied the daughters' reported living expenses by twelve months, not by ten months, to arrive at the annual $30,120 combined expense figure. The bulk of those expenses take into account food, transportation, clothing and other costs that the daughters would incur both at home and at school. We discern no necessity to adjust the child support allocation further to add in a fractional share of the ex-wife's annual shelter expenses, which are already a part of her budget in the alimony calculation.
We do find that one aspect of the court's child support determination does require a remand, perhaps due to a typographical or clerical error. The FJD recites in its eighth unnumbered paragraph, that the ex-husband is:
ORDERED . . . [to] pay child support for his unemancipated daughters in the amount of $5,480 per year, effective June 23, 2004, which amount places the [the ex-husband] in arrears as of this date of $14,624, while support and arrears shall be paid through the Monmouth County Probation Department in the amount of $500 per [sic] support plus monthly arrears payments of $200.00, and until such time as the arrears are paid in full[.] [Emphasis added.]
This provision is obviously garbled or incomplete. In the companion opinion, the judge does state that the ex-husband "is entitled to deduct funds he can prove he spent on cars, insurance, and education for his daughters' benefit," and that the court "will allow [the arrears] amount to be paid to the [ex-wife] in installments in the amount of $500 per month through the Monmouth County Probation Department." Even if the judge intended in the FJD to set the arrears payment at $500 monthly, we cannot tell what the separate reference to the "monthly arrears payments of $200.00" in the FJD is meant to encompass.
Given this error of expression in the FJD, we remand this matter to the trial judge to specify more clearly what the intended monthly arrears amount shall be, and to also consider any appropriate proofs of offset presented by the ex-husband, as contemplated by the FJD. At the same time, the judge may also reconsider the combined financial impact of alimony, prospective child support, and past arrears, to determine whether that overall monthly burden on the ex-husband is excessive. If so, the judge is free to recalibrate the rate of paydown of arrears accordingly.
We next turn to the trial judge's ruling concerning equitable distribution. As with the other financial issues, we apply a deferential standard of review here as well, recognizing that the law commits to trial judges substantial discretion in the manner in which marital assets are allocated. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978).
As an initial point, we readily sustain the trial judge's finding that the marital home is an asset subject to equitable distribution. We also affirm the judge's directives that the marital home be listed for sale expeditiously, and the net proceeds, after appropriate offsets, be divided equally between the parties. Although the ex-wife would prefer to remain in the home, it is clear that she cannot do so indefinitely, as she obviously lacks sufficient resources herself to buy out the exhusband's interests and assume the mortgage debt unilaterally. As the judge's opinion pragmatically noted, the funds from the house sale are needed to liquidate outstanding debts, including back tax obligations, counsel fees, and credit card bills.
A trial court has "broad discretion" to order the sale of the marital home for equitable-distribution purposes. Savoie v. Savoie, 245 N.J. Super. 1, 7 (App. Div. 1990). Where "simple economic reality" affords a trial court "only a few difficult alternatives," an appellate court cannot hold that the trial court mistakenly exercised its discretion in choosing one of those alternatives. Ibid. Here, the trial judge was faced with divorcing parties who had limited incomes and large marital debts. Carefully considering the situation, the judge elected to utilize the proceeds from one of only two eligible marital assets to satisfy the debts and, thus, to provide the parties with a fresh financial start following the divorce. In light of those circumstances, it cannot be said that the judge misapplied his discretion in ordering that the marital home be sold. The ex-wife's cross-appeal on this point is thus rejected.
On a somewhat related subject, we reject the ex-husband's contention that the judge improperly ordered him to make "necessary and reasonable" repairs on the marital residence. As the judge's opinion noted, that obligation is aimed at insuring that the home can be sold for a "favorable price." We discern nothing unfair in this proviso, at least as a conceptual matter, in light of the ex-husband's own professed expertise and business venture as a handyman. If, in practice, this facet of the FJD becomes unduly onerous or beyond the ken of the ex-husband, the Family Part may consider an appropriate motion to abate or limit the ex-husband's responsibilities.
The other main asset identified by the trial judge was the ex-husband's firefighter pension. As we have already noted, the parties stipulated at trial that the pension was worth over $800,000 in present value, or at least four times the net equity in the marital residence. The judge evenly divided the pension between the two parties, directing that a QDRO be prepared to implement that division.
Although the trial judge incorrectly perceived that the parties had agreed to divide the ex-husband's pension equally, when in fact no such agreement actually existed, we consider the 50/50 allocation to be fair and sensible. By stark contrast, the ex-wife's pension as a school secretary is relatively meager, and will not be payable to her for over a decade. It would have been completely unfair for the court, for example, to have instead ruled that each party retain the full value of his or her pension individually. We cannot fathom that the parties contemplated that, upon retirement, the ex-husband would not have shared the benefits of his pension reciprocally with his spouse, who raised their three children while he was an active firefighter. The equal division of the ex-husband's pension also helps assure that the ex-wife has enough income, combined with her own modest earnings and the alimony award, to maintain a comparable standard of living. In sum, we will not disturb the judge's wise exercise of discretion. Uslar v. Uslar, 253 N.J. Super. 289, 294 n.1 (App. Div. 1992).
As a less significant item, we do agree with the ex-husband that, in the interests of reciprocity, the ex-wife's pension also should be equally divided through a QDRO. Her pension, while comparatively very small, has already vested, even though it will not be payable for many years. The fact that her pension was not formally valued at trial does not preclude its disposition as a marital asset for equitable distribution. If, for some reason, the parties had remained married and the ex-husband somehow became unable to receive his own pension, we strongly suspect that the parties would have utilized the wife's pension as a shared, albeit modest, household resource in the future.
As an administrative item, we note that the FJD does not designate which of the two parties is to arrange to have the QDRO documents prepared. To move the process along, we direct that the costs of the QDRO preparation be shared equally, and that the trial judge on remand designate one of the two parties or their counsel to have the QDRO prepared forthwith.
There are several other miscellaneous issues germane to equitable distribution, which do not require extensive comments. First, we sustain the judge's finding that approximately $20,000 that the ex-wife withdrew from a joint savings account in 2002 does not need to be subtracted from the ex-wife's share of equitable distribution, as we adopt the judge's specific finding in his opinion that "[t]here is no evidence that either party obtained funds during the marriage for anything other than the support of the family."
As a second miscellaneous item, we adopt the ex-husband's claim that he is entitled to an equitable division of the financial responsibility that he undertook in taking out a loan against his pension for the payment of marital debts. The loan in question had a balance of about $12,000 at the time of trial, and the ex-husband was still paying it off at a rate of $441.66 per month. During the trial, the ex-wife's counsel agreed on the record that the pension loan obligation was subject to equitable distribution. For reasons that are unclear, the FJD omitted any credit to the ex-husband for his payment of this debt from May 2004 forward. The FJD should be amended accordingly, and an appropriate credit recognized, consistent with the ex-wife's stipulation.
A third miscellaneous item is the omission from the FJD of a $10,000 sum payable to the ex-wife to help enable her to purchase a newer motor vehicle to replace her 1991 Ford Thunderbird with 177,000 miles on it. In his written opinion, the trial judge directed the ex-wife to receive that sum, in recognition that the ex-husband had himself obtained a new van with marital assets before the divorce judgment. We consider this disposition a fair exercise of the court's discretion, and suspect that the omission of the $10,000 figure from the FJD was merely a clerical oversight. On remand, this omission shall also be corrected. See R. 1:13-1.
As a fourth and final miscellaneous item, we consider the ex-husband's claim that the FJD is excessive in requiring him to obtain $200,000 in life insurance to secure his future obligations for alimony and child support. Although we recognize that life insurance is commonly appropriate as security to assure payment of post-divorce obligations, see Schwarz v. Schwartz, 328 N.J. Super. 275, 286 (App. Div. 2000), we are also mindful that the ex-husband is now in his mid-fifties, and that the parties' two daughters should both be emancipated by the end of this year. In light of the fact that the trial court will be revisiting alimony and other financial obligations on remand, we suggest that the judge explore the level of life insurance as well, perhaps with supplementary information from the parties concerning the policy premiums involved.
As a final matter, we briefly address the ex-wife's cross-appeal of the denial of her claim for counsel fees. Her accumulated fees through the end of trial were $21,608, which were about half of the counsel fees incurred by the ex-husband.*fn10
In his written opinion, the trial judge analyzed the counsel-fee question under the three factors set out in Williams v. Williams, 59 N.J. 229, 233 (1971). The trial judge listed those factors as "a finding of need of one party for such an award [of counsel fees] and an ability to pay of the other party. The [c]court should also consider the good or bad faith of either party in pursuing one or more aspects of the litigation."
Properly considering those factors, the trial judge concluded that "[n]either party in this case has had the liquid means to completely fund their own side of this litigation, much less the costs of the other side. The only hope either [party] has to satisfy counsel fees is from assets obtained from the sale of the marital residence." Additionally, the judge noted that each party expressed "sharply divergent views as to [who bore] responsibility for the costs of this drawn out litigation."
The trial judge further analyzed and applied the nine factors set out in Rule 5:3-5(c) for the award of counsel fees, concluding that:
[E]ach party should be responsible for his or her own counsel fees. Neither [party] really has the money to pay the fees of the other side. Neither party has the moral high ground regarding the negotiations and trial of the case. Each has had their respective positions affirmed and rejected.
As is apparent, the trial judge thoughtfully and thoroughly analyzed the counsel-fee issue before arriving at his decision to have the parties each pay their own respective fees.
On appeal, the ex-wife's main contention on this point is that she is so much less well off financially than the ex-husband that it would be unfair to her if she remains compelled to bear her own counsel fees. Her argument ignores the trial judge's comprehensive effort to equalize the parties' incomes through the alimony award. Thus, the ex-husband's equalized income will closely approximate and be the functional equivalent of the ex-wife's post-divorce income. As recognized by the trial judge, neither party could afford to pay the other party's counsel fees even prior to such income equalization. Logically, that situation will not improve following equalization.
As with many other issues we have reviewed in this case, the "award of counsel fees and costs in a matrimonial action rests in the discretion of the court." Williams, supra, 59 N.J. at 233. We are satisfied that the trial judge did not abuse his discretion in requiring the ex-wife to pay her own counsel fees. The FJD is sustained in this regard.*fn11
The FJD is affirmed in part, and also vacated and remanded in part for proceedings consistent with this opinion. We do not retain jurisdiction.