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Freda v. Freda

November 20, 2008

ANN FREDA, PLAINTIFF-APPELLANT,
v.
ROBERT FREDA, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1276-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2008

Before Judges Wefing and Parker.

Plaintiff Ann Freda appeals from certain paragraphs of the superseding final judgment of divorce (JOD) entered on July 3, 2007 and the order entered on July 3, 2007 denying her Tevis*fn1 claim. We affirm in part and reverse in part.

The parties were married in 1956 -- more than fifty years, when the matter came to trial. They had three children, all of whom are emancipated. At the time of trial, plaintiff was seventy-three and defendant was seventy-nine.

The matter initiated with a domestic violence complaint filed on April 4, 2005 in which plaintiff alleged that defendant choked her, broke her finger and bruised her cheek. A final restraining order (FRO) was entered on May 11, 2005. Defendant was removed from the marital home and ordered to pay $400 a month to plaintiff in support and maintain all household expenses.

The complaint for divorce was filed on December 5, 2005 and included a claim for damages resulting from personal injuries, commonly referred to as a Tevis claim. During a case management conference, the court asked counsel whether the Tevis claim was still an issue and plaintiff's attorney responded that it was not. The court then deemed the claim abandoned. Thereafter, plaintiff retained new counsel who moved to vacate dismissal of the Tevis claim. In support of the motion, plaintiff submitted medical documentation but no certification stating how her injuries occurred or a copy of the domestic violence transcript. The motion was denied at the close of trial.

The parties have limited resources. Both are retired and receive social security. Plaintiff receives $797 per month and defendant receives $1,400 per month. Plaintiff suffers from a number of physical disabilities, including renal cancer, macular degeneration and osteoporosis. Defendant testified that he takes no prescription medications at the present time but made no other representations regarding his health.

In the final judgment entered on July 3, 2007, the trial court expressly found that the parties' income was limited to social security, IRA distributions and interest income. The court found that there were no assets other than those set forth by the parties in the joint economic expert's report, and divided all of the assets equally. Plaintiff's request for alimony was denied. The marital home was ordered sold and the proceeds divided equally with a credit in the amount of $19,900.24 to defendant to equalize the distribution of certain accounts.

With respect to fees, the court ordered plaintiff to pay defendant's counsel fees "from the time of the receipt of the joint economic expert's report through the conclusion of the trial testimony in the amount of $10,012.50." She was also ordered to pay her prior counsel $13,000. The court further directed plaintiff to pay the $2,000 trial appearance fee for the joint economic expert. The parties were equally responsible for the remainder of the expert's fees.

In this appeal, plaintiff argues that the trial court erred in (1) denying equalization of the social security benefits; (2) ordering plaintiff to pay her prior counsel $13,000, defendant's counsel $10,012.50, and the joint economic expert a $2,000 trial appearance fee; and (3) failing to vacate dismissal of plaintiff's Tevis claim.

We have carefully considered the record with respect to alimony and we are satisfied that the trial court abused its discretion in denying plaintiff's claim without equalizing the parties' social security income after a fifty-year marriage. Trial courts have broad, but not unlimited, discretion in awarding or denying alimony, Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005). The court must consider the factors articulated in N.J.S.A. 2A:34-23(b), and, pursuant ...


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