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Fiore v. Fiore

December 9, 2008

JODIE M. FIORE, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
ROBERT V. FIORE, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FM-21-250-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 3, 2008

Before Judges Reisner, Sapp-Peterson and Alvarez.

Plaintiff Jodie M. Fiore appeals, and defendant Robert Fiore cross-appeals, from a dual final judgment of divorce entered on March 21, 2007. We affirm in part and remand in part.

I.

Plaintiff and defendant were married in 1982, in Massachusetts. At the time of the marriage, plaintiff, who had a bachelor's degree in pharmacy, had spent six months working as a consulting pharmacist and one year working as a retail pharmacist, while defendant had just completed a degree in dentistry. Immediately after the marriage, the parties moved to New Jersey, where plaintiff worked for a year as a retail pharmacist at a local Shop Rite, and defendant completed a dental residency program at Mountainside Hospital. The parties then moved back to Massachusetts where plaintiff spent the next three years working full-time as a consulting pharmacist while defendant completed a master's program in orthodontics at Harvard University. In late 1986, defendant accepted a teaching post at the University of Medicine and Dentistry and the parties moved back to New Jersey.

On November 19, 1986, the parties' first child was born. Plaintiff thereafter returned to work as a part-time consulting pharmacist between 1987 and 1988. Between 1987 and 1989, she also assisted defendant with the small private orthodontic practice he had started in Montclair. On February 1, 1988, plaintiff gave birth to the parties' second child. By the time the parties' third child was born on August 18, 1989, plaintiff had stopped working as a pharmacist. The parties agreed that she should focus her energies on being a homemaker and raising the children. The parties' fourth child was born on February 22, 1992.*fn1

In 1989, defendant closed his practice in Montclair and the family moved to Warren County where defendant set up a new orthodontic practice with locations in Blairstown and Newton. The parties purchased two commercial properties, which they placed in the name of the Fiore Family Partnership. Defendant rented space in each building and operated his practice out of those locations. Plaintiff and defendant each held a thirty percent interest in the partnership, while each of the children held a ten percent interest. Defendant's practice was successful and he reported income of $238,271 in 2003, $225,496 in 2004, and $274,856 in 2005.

According to defendant, the parties lived in a moderate fashion, preferring to save rather than spend. They generally took only two vacations per year, one to the mountains to ski, and the other to the beach in Maine. As a result, there were no mortgages on any of the residential or commercial properties, and they accumulated substantial savings. Plaintiff insisted, though, that she spent lavishly on clothing and food.

On February 22, 2005, plaintiff filed for divorce. Nonetheless, the parties continued living together in the marital home located in Blairstown until December 22, 2005, when defendant moved into a new home in Fredon Township. He had previously closed on this home on September 9, 2005. Defendant took out a $343,200 mortgage to cover the $429,023 purchase price of the home.

At the time of trial, both parties were forty-nine years of age. The two oldest children were full-time college students living on campus during the school year. They both lived with plaintiff during the summer and while on school breaks. The two younger children, boys ages seventeen and fourteen, both attended the same local high school. The older son resided with plaintiff, while the younger son spent most nights at defendant's home. The older son, who was in his senior year of high school, planned to attend college the following year.

Addressing her career plans, plaintiff testified that she intended to return to work on a part-time basis, but not as a pharmacist. She testified that she enjoyed painting and was looking into obtaining an associates degree in the arts and someday working in a gallery. Plaintiff testified that she had been diagnosed with hypothyroidism in 1994, for which she took medication, and that she considered her health a factor as to whether she could work full time since she napped two hours every day. However, while plaintiff filed a motion in the middle of the trial for leave to present a medical expert, she did not proffer a formal expert report on the issue of her health. The judge denied her application.*fn2

Plaintiff's pharmacy license was set to expire in the spring of 2007, and she needed to complete twenty-seven continuing education credits (by completing online tests) and pay $95 to renew the license. She contended that she did not feel prepared to resume the career she had left behind nearly two decades before. She also did not believe she possessed the stamina needed to work as a full-time pharmacist and further maintained that she was not up to the travel required of a consulting pharmacist. As directed by the court in an order dated July 20, 2006, plaintiff had inquired about a number of pharmacist positions, but had not been offered any jobs. She testified that several potential employers told her that she had been out of the market too long and that they were not interested in retraining her.

Donna Kolsky, an employability expert, testified on behalf of defendant that she interviewed plaintiff as part of an employability assessment. During the interview, plaintiff advised her that she had no intention of returning to work until the youngest child was in college, that she was not interested in resuming her career as a pharmacist, and that she hoped one day to open an art gallery. Kolsky administered several tests to plaintiff in order to assess her other marketable skills, but was unable to draw any conclusions regarding other potential fields of employment because plaintiff refused to complete all of the tests. Plaintiff, in fact, walked out of the interview, stating that she resented being forced to "jump[] through hoops."

Because of plaintiff's failure to cooperate, Kolsky was forced to focus her employability analysis on whether plaintiff was employable as a pharmacist, without considering other possible career options. Kolsky contacted the Board of Pharmacy and learned that plaintiff could work as a pharmacist provided her license was current. Kolsky testified that, according to the United States Department of Labor, pharmacy was a growing field and there were expected to be twenty-one to thirty-five percent more pharmacist positions within the next ten years. She further stated that, according to the New Jersey Department of Labor's Occupational Employment Statistics, pharmacists in Warren, Sussex, and Passaic counties earned between $72,000 and $90,000 per year.

Kolsky performed a labor market survey by contacting placement agencies and also responding to newspaper and internet ads. Every potential employer she spoke to stated that the lengthy gap in plaintiff's employment history would not preclude her from being hired. According to Kolsky, there were numerous jobs in the immediate area for which plaintiff was qualified, including an entry level retail pharmacy job in Oakland paying $99,000, and entry level positions at local hospitals paying $70,000 to $80,000, plus benefits. Based upon her survey, Kolsky concluded that plaintiff was employable as a pharmacist earning between $70,000 and $90,000 per year. Kolsky insisted that, while some employers might not consider plaintiff because of her lengthy absence from the workforce, most would because there were simply not enough pharmacists to fill the available positions in the job market.

Before the trial judge issued a decision, the parties entered into a number of agreements and stipulations. They entered into a consent order in which they agreed to share joint legal custody of the children. With respect to their financial issues, they stipulated that the marital home was worth $825,000, the commercial properties were collectively worth $850,000, and defendant's practice was worth $415,000. The parties had agreed that 40% of the value of the commercial properties ($340,000) would be set aside for the children, that plaintiff would receive one-third ($138,333.33) of the value of defendant's practice, and that all retirement and cash accounts would be split on a fifty-fifty basis.

Following the trial, the judge issued a comprehensive twenty-seven page written opinion dated December 31, 2006, addressing the remaining disputed issues. After evaluating the credibility of the witnesses, the judge found as fact that defendant's home in Fredon was purchased with non-marital assets, defendant's $130,000 inheritance from his mother was never treated as a marital asset, and a $10,000 gift plaintiff received from her mother was likewise not a marital asset. Accordingly, those assets were all exempt from equitable distribution. However, the judge awarded plaintiff in excess of $1,500,000 in assets, including the marital home.

Based upon Kolsky's testimony, which he found believable, the judge concluded that plaintiff was eminently employable as a pharmacist, despite her desire to avoid working in that field. Accordingly, he determined that income in the amount $76,150 should be imputed to plaintiff.

The trial judge's opinion also set forth an exhaustive, eight-page discussion of the alimony issue. After taking into account the marital standard of living as reflected on defendant's Case Information Statement (CIS), and defendant's average net income for the past three years of $194,638, the judge ruled that plaintiff was entitled to permanent alimony in the amount of $58,850 per year. This amount included a savings component of $17,238.

In determining alimony, the judge noted that he did not find plaintiff's lifestyle testimony credible. Instead, he concluded that she had inappropriately spent tens of thousands of dollars both before and after the divorce filing, in an ...


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