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Freda v. Freda


November 20, 2008


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

Per curiam.



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 to section (c) of that statute, must "make specific findings on the evidence setting out the reasons" for awarding or denying alimony.

Here, the trial court merely concluded that this was "not an alimony case," based upon the parties' ages, retired status and the assets each received in equitable distribution.

We find the trial court's decision unreasonable under the circumstances of this case where, after fifty years of marriage, the parties should share equally in their joint income as well as their assets. See Martindell v. Martindell, 21 N.J. 341, 355-56 (1956). Rather than remand the matter and cause the parties to incur further litigation expenses, we invoke our original jurisdiction pursuant to Rule 2:10-5 to equalize the parties' social security income and order defendant to pay $300 per month to plaintiff in alimony. Our calculation for this amount is as follows: $797 $1,400 = $2,197 ÷ 2 = $1,098. Defendant, therefore, shall pay plaintiff $300 to equalize their social security income; defendant will then have $1,100 per month and plaintiff will have $1,097.

With respect to plaintiff's Tevis claim, it is clear that plaintiff waived that claim prior to trial. She was present when her counsel made the representation regarding waiver and she made no objection. Rule 1:13-7(a) allows for reinstatement of a claim "on good cause shown," but plaintiff showed no good cause for reinstatement. Moreover, the record does not indicate that plaintiff suffered any permanent or substantial injury to warrant reversal of the trial court's order denying reinstatement of the Tevis claim.

Finally, with respect to the fee issue, we are satisfied that the trial court did not abuse its discretion in ordering plaintiff to pay a portion of defendant's counsel fees. Similarly, we find no error in the court ordering plaintiff to pay the $2,000 court appearance fee for the joint economic expert.

Plaintiff argues that the award of counsel and expert fees was punitive because she insisted on a trial. We disagree. The award is warranted to balance the inequity of defendant paying $400 a month in alimony plus all the marital home expenses for two years pendente lite while plaintiff was residing in the marital home and defendant was forced to live with his sister because he did not have the resources to pay for his own accommodations and counsel fees.

We reverse the court's order directing plaintiff to pay $13,000 to her prior attorney, however, since no affidavit of services was submitted as required by Rule 4:42-9(b). The amount of the fee due and owing to the prior attorney should be subject to negotiation between plaintiff and that attorney and they may submit the matter to fee arbitration if they are unable to resolve the issue.

We summarize our decision as follows:

1. The trial court's denial of alimony to plaintiff is reversed and, pursuant to our original jurisdiction, defendant is ordered to pay plaintiff $300 per month to equalize their social security benefits;

2. That portion of the judgment directing plaintiff to pay $13,000 to her former counsel is reversed and vacated;

3. The remainder of the judgment is affirmed; and

4. The order denying reinstatement of plaintiff's Tevis claim entered on July 3, 2007 is affirmed.

Affirmed in part; reversed in part.

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