On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-323-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Waugh.
Defendant Jane Rothfeld appeals the denial of her application to increase the amount and extend the term of her limited duration alimony. She also appeals the denial of her request, in the alternative, for an increase in child support.
We reverse and remand for further proceedings consistent with this opinion.
Jane was married to plaintiff Samuel Rothfeld from September 19, 1996, until their divorce on March 17, 2003, less than seven years. They have two children: Jonathan (a fictitious name), who was born on September 19, 1996; and Martin (a fictitious name), who was born on September 15, 1998. Both Jane and Samuel are members of the New Jersey Bar. Samuel has an active private practice. For reasons that will be discussed at length below, Jane has not returned to active practice. She contends that her parenting obligations with respect to the children, particularly Jonathan, prevent her from doing so.
The parties share joint legal custody of their children, with Jane designated in their property settlement agreement (PSA) as the parent of primary residence. Samuel has "liberal and reasonable rights of parenting time," with the specifics to be agreed upon between the parties. Pursuant to the PSA, Samuel pays child support in the amount of $500 per week, which is above the child-support guideline amount "in recognition of the total support amount being paid by [Samuel] including alimony." Other expenses related to the children, including Jane's work-related childcare expenses and unreimbursed childcare expenses after the first $250 per child, are to be split between the parties. Samuel is generally required to pay eighty percent of those expenses, with Jane paying the remaining twenty percent.
In reaching their divorce settlement, the parties agreed upon "limited duration alimony" in the amount of $500 per week for four years, effective April 1, 2003. According to Jane, at the time the PSA was negotiated, "it was assumed that [she] would be able to obtain per diem work in the law field." According to Samuel, the discussions centered on whether the alimony should be described as limited duration or rehabilitative. He recalled that Jane "did not want the alimony to be labeled rehabilitative because [she] had no intensions of going back to work on a full-time basis," an assertion that Jane denies. Both parties appear to agree, however, that there was never discussion of permanent alimony arising out of their less than seven-year marriage. In fact, Jane did not seek permanent alimony in the motion involved in this appeal.
The PSA also provided that Jane would receive title to the marital home, subject to the existing mortgage. The home was listed for sale at the time of the divorce, and has subsequently been sold. Jane and the two children now reside in a townhouse. Jane waived any interest in Samuel's legal practice.
At the time the PSA was negotiated and signed, Jonathan was approximately six and a half years old. He was having some difficulties in school; and there was some concern that he might have attention deficit disorder. In the years following the divorce, he has been diagnosed with the following disorders: (1) attention-deficit/hyperactivity disorder; (2) obsessive-compulsive disorder; (3) Asperger's disorder (a form of autism); and (4) bipolar disorder. The most recent diagnosis came in 2007, between the filing of the motion involved in this appeal and the filing of Jane's reply brief.
As a consequence of his various disorders, Jonathan takes multiple medications and is treated by several mental health professionals on a regular basis. As his disorders developed and progressed, Jonathan's conduct, both at school and at home, became progressively more problematic. In 2007, he was transferred from public school to a non-residential special needs school.
According to Jane, her increased responsibilities with respect to Jonathan have prevented her from obtaining any significant employment.*fn1 It appears from the record that the parties contemplated that Jane would continue to perform parental duties, but would also begin to obtain at least some per diem work as an attorney. As noted above, the PSA calls for Samuel to pay eighty percent of Jane's work-related childcare expenses. Given the 80/20 split of the additional expenses related to the children, ...