On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-1417-06F.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges Stern, Payne and Waugh.
Plaintiff-husband appeals from paragraphs of an amended dual judgment of divorce entered on June 7, 2007, following a bench trial. The judgment was based on the trial judge's memorandum opinion of May 9, 2007. Defendant-wife cross appeals from other paragraphs of the judgment. A partial settlement agreement had been reached prior to the trial, and consent orders were entered. Custody, parenting time, child support and other issues were resolved, and the trial proceeded on the contested financial issues.
On the appeal plaintiff challenges a $25,000 credit given to defendant with respect to the marital home, challenges the award and amount of alimony ($150 a week for two years), claims a pendente lite order (of $3,000 a month for maintenance of the marital premises and child support)*fn1 should have been retroactively modified, and contests the $5,000 award of counsel fees to defendant. Defendant claims that her alimony was insufficient in length and asserts it "should not have been limited to a two-year payout as a means for rehabilitating herself." She also challenges the failure of the judge to award her fifty percent of the child support ($14,752) paid by plaintiff in October 2005 by virtue of a judgment entered with respect to a child from a prior marriage, challenges the dismissal of her Tevis claim,*fn2 asserts that "a Lynn trust,"*fn3 should have been imposed, and claims she was entitled to a greater amount of counsel fees.
The proofs at trial include the following relevant facts. The parties were married in 1997. Their daughter was born on October 29, 1999. All marital residences, including the condominium located at 63 Hawthorn Drive in Edison that is subject to equitable distribution, were rented or acquired in defendant's name, ostensibly to shield any assets from satisfying plaintiff's severely delinquent child support obligations arising from his previous marriage.
Both parties are well educated and have substantial work experience. Plaintiff earned a degree in engineering from the University of Baroda in India and a master's degree in computer science from Boston University. He has worked as a computer programmer since moving to the United States. Defendant earned a bachelor's degree in law, a bachelor's degree in home science, and master's degrees in computer science and business administration at universities in India. In India, she worked in a family-owned photo business, and has worked in both the computer and financial planning fields since her marriage. By the time of trial, she held licenses permitting her to sell stocks and bonds, and had completed a course to become a certified financial planner but had not yet sat for the licensing examination.
Available records indicate that the parties' relative individual incomes fluctuated due to employment changes throughout the marriage. Generally, defendant earned more than plaintiff for the first few years of marriage, while plaintiff earned substantially more for at least the final two years, during most of which he was employed by Merrill Lynch at an annual base salary of $125,000 plus a bonus. However, two months following filing of his complaint, plaintiff left his employment with Merrill Lynch for a position with Trishul Associates ("Trishul") where he earned approximately $85,000 a year. The parties separated at the end of 2005 after plaintiff had secretly hidden a video camera in the parties' living room and videotaped evidence of defendant's alleged adulterous affair with a business associate and had allegedly committed acts of domestic violence against defendant.*fn4
The trial judge awarded defendant alimony in the amount of $150 per week for the limited duration of two years. In accordance with Lepis v. Lepis, 83 N.J. 139, 150 (1980) and N.J.S.A. 2A:34-23(b), the judge acknowledged his obligation to consider the financial needs, income and earning ability of the parties, the duration of the marriage, the parties' age and physical and emotional health, the marital standard of living, the parties' parental responsibilities, and the history of contributions to the marriage by each party. See also Crews v. Crews, 164 N.J. 11, 16 (2000) (reaffirming "the Lepis principle that the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage"). The court found that, despite the early years of the marriage, at the time of divorce plaintiff was both actually earning and capable of earning more than defendant. Although defendant then earned $57,800 per year working at Wachovia Bank, based on expert testimony and her education, the judge concluded that defendant was capable of earning an annual salary of $70,000 once she sat for and passed the Certified Financial Planner exam for which she had already completed the course work.
As already noted, approximately two months after filing the complaint, plaintiff left his employment with Merrill Lynch and took a position with Trishul, where he reported that his annual salary was $85,000. Plaintiff explained that he sought new employment at that time because a number of co-workers at Merrill Lynch had recently lost their jobs and a new employee was hired to do a type of programming with which he was not familiar. The judge found that explanation unsatisfactory and lacking "sufficient proof." Moreover, the court calculated plaintiff's projected salary for 2007 at $96,744, and used a figure of $95,000 for purposes of calculation of alimony and child support.
Both parties challenge the alimony award of $150 per week for two years, which the judge granted to defendant in order to "provide [her] with sufficient time to complete her examination and become a Certified Financial Planner and to develop a consistent incentive/bonus income." Plaintiff contends that, given the parties' earning history during the marriage, for most of which he claims to have earned less than defendant, defendant was not in fact a supported spouse entitled to any alimony. He further contends that, even if she were entitled to alimony, the court erred in calculating the amount of alimony based on the inappropriate income figure of $95,000 that was imputed to him. Defendant, on the other hand, argues that because the court rejected plaintiff's explanation for why he left his employment at Merrill Lynch, defendant should have been awarded alimony based on an imputed salary consistent with ...