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McDermott v. McDermott

February 20, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-268-05.

Per curiam.


Argued January 22, 2009

Before Judges Fisher, Baxter and King.

In this appeal, we review a judgment that dissolved a long term marriage and resolved, among other things, the parties' responsibility for certain alleged marital debts, the value of plaintiff John V. McDermott's law practice, and disputes regarding alimony and counsel fees. We remand for additional findings of fact and conclusions of law regarding plaintiff's allegations that the marital partnership received and was benefited by other loans from his sister than those specifically found by the judge, but we reject the remaining issues raised by plaintiff in his appeal.

The parties were married in 1973 while plaintiff was a student at Fordham Law School. Plaintiff was admitted to the New Jersey bar in 1975 and commenced a solo law practice in 1976. Defendant kept the books for the law practice and performed other secretarial tasks for her husband. She worked in this capacity without receiving direct compensation for her work throughout most of the marriage. The parties had five children, two of whom passed away during the course of the marriage.

The record reveals that, with a small down payment, the parties purchased a two-family home in 1972, where they continued to reside after their marriage in 1973, paying the mortgage mostly with rent generated by the other unit. In 1975, the parties purchased a new home in Vernon for approximately $40,000, selling their first home for a $22,000 gain. Ten years later, the parties sold their Vernon home for $126,000 and built their final marital residence in Frankford, which consisted of approximately 3000 square feet on twelve acres of land, with a large in-ground pool and a full basement. The Frankford home cost approximately $225,000 to build and, upon completion, was encumbered by a $200,000 mortgage. At the time of trial, the parties agreed that the home's value was $475,000.

In the early 1980s, the parties bought a lot in Vernon and began construction of a four-unit office complex, the Vernon Professional Center. They intended that one of the offices would be used for plaintiff's law practice, while the remaining space would be leased. During construction, however, plaintiff suffered a bout of depression that prevented his participation in the building's planning and construction. Defendant supervised the completion of the project during plaintiff's incapacitation.

Plaintiff's legal work provided the marital partnership's sole source of income until defendant began working outside of the law office in the late 1990s. Along with his practice, plaintiff also took a temporary full-time job with Foster Wheeler in 1996 for six months, and from 1997-2002 he performed appellate work for the Office of the Public Defender to supplement his income.

As mentioned, defendant worked without pay in plaintiff's law office from 1976 to 1997. She watched the children, and as the family grew, had her parents provide free child care.

Defendant also sought occasional part-time employment as a substitute teacher and a bank teller. Her earnings were deposited in the family's joint checking account. Defendant is now a tenured employee of Mendham Township Board of Education earning $56,100 per year, with a vested pension and benefits. If defendant were to retire at age 60 (she is now 57 years old), she would receive $714 per month from her pension.

Plaintiff's uncontroverted income from his law business was presented as follows:

YearGross IncomeNet Income 2006$203,450$80,832 2005191,72271,130 2004273,135151,962 2003359,357154,968 2002195,15742,246 2001175,33772,849 2000166,37371,612 1999147,24953,758 1998152,26874,530 199799,21927,712 1996142,25357,360 1995105,08132,267

The fluctuations in plaintiff's income can be explained partially by plaintiff's recurring trouble with depression and partially by economic circumstances in the marketplace. The highs of 2003 and 2004, in particular, were due to plaintiff's conclusion of a substantial sexual harassment/wrongful termination case; plaintiff ...

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