On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FM-07-2617-03N.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
In this matrimonial matter, we review an order establishing the length of limited duration alimony payable to plaintiff Melanie A. DuBois by defendant Martin P. Brodeur. Defendant argues that the term is excessive, deviates from prior rulings of this court, and contravenes the statutory factors. Plaintiff urges that the term is consistent with our earlier ruling and reflects the circumstances of the parties. We affirm.
In an earlier appeal that reviewed the judgment of divorce entered following trial, we affirmed the amount of annual alimony but reversed the permanent alimony award and remanded for entry of an appropriate limited duration alimony award. DuBois v. Brodeur, A-1665-05 (App. Div. July 13, 2007). In this opinion, we held that limited duration alimony is particularly suitable for a situation such as here when the marriage was of short to intermediate duration and the woman is young and has young children. The judge is able to fashion an award that provides financial support to the former wife while she cares for the children.
We then addressed the factors that should inform the decision of the length of the term. We stated:
The term should be informed not only by the age of the children, but also by the parties' decision that plaintiff should be the primary and full-time caretaker of the children. We leave the length of the term to the sound discretion of the trial judge. [Ibid.]
On remand, plaintiff sought a term that coincided with the anticipated college graduation of the parties' youngest child in 2024. Defendant sought a term that tied his obligation to pay alimony with the continuation of his career. He suggested a term ending in 2012. Judge Convery noted that this court had rejected defendant's argument that the amount of the alimony awarded was excessive and defendant's suggested term seemed to be directed more to the amount rather than the length of the alimony award.
Judge Convery rejected the argument advanced by defendant that he must apply each of the statutory criteria*fn1 de novo because that had been done in his initial opinion and the only issue before him was the term of the limited duration alimony. The judge also rejected the argument that tying the term to the age of a child or life event, such as college graduation, would "masquerade" alimony payments as non-deductible child support in violation of the federal tax code.
Judge Convery found that plaintiff would be forty-six years old at the time the youngest child graduated from high school and that plaintiff would no longer be a full-time caretaker of her children at that time. He also found that the parties had contemplated and expected that plaintiff would be the full-time caretaker of the children. Therefore, Judge Convery held that the limited duration alimony payable by defendant to plaintiff shall terminate in 2020, the year the youngest child should complete her secondary education and plaintiff is no longer a full-time caretaker of her children.
We affirm substantially for the reasons expressed by Judge Convery in his March 26, 2008 opinion. Admittedly, the limited duration alimony term is longer than those found in reported cases. See Weishaus v. Weishaus, 180 N.J. 131, 135 (2004) (three-year term after fifteen-year marriage); Newell v. Hudson, 376 N.J. Super. 29, 31 (App. Div. 2005) (four-year term after nine-year marriage); Konczyk v. Konczyk, 367 N.J. Super. 551, 553-53 (Ch. Div. 2003) (eight and one-half year term), aff'd, 367 N.J. Super. 512 (App. Div. 2004). Moreover, although the issue of the length of the term was not before the court, in one case, Gordon v. Rozenwald, 380 N.J. Super. 55, 62 (App. Div. 2005), we encountered a fifteen-year term after an eighteen-year marriage. On the other hand, there is no formula that governs the decision. Each case must be decided on its facts. Here, the parties always agreed that plaintiff would serve as the full-time caretaker of the children. In order to do so, she requires financial support and defendant earns sufficient income to effectuate the plan. In short, we discern no basis to disturb the term fashioned by the trial judge.
We also reiterate that the issue of the term and amount of the limited duration alimony are separate issues. As we noted in our earlier opinion, "nothing precludes a motion to reduce the amount of alimony once defendant retires and his post-retirement employment and income is known." DuBois, supra, slip op. at 40. In addition, defendant's concern that the limited duration alimony award may be seen as "masqueraded" child support is unfounded. The judgment of divorce and the ...