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Milne v. Goldenberg

October 15, 2009

KATHERINE MILNE, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
ROBERT GOLDENBERG, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-2027-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 16, 2009

Before Judges Cuff, Payne and Waugh.

Plaintiff, Katherine Milne, and defendant, Robert Goldenberg, were granted a dual judgment of divorce on December 31, 2007. Each has appealed from various provisions of the divorce decree. Defendant argues in his appeal that the Family Part judge erred in disregarding stock options and restricted stock awards given by plaintiff's employer to her in calculating alimony. He argues additionally that the trial judge erred in determining that plaintiff should receive permanent, rather than term or rehabilitative alimony. As a final matter, defendant claims that the trial judge erred when he designated plaintiff as the parent of primary residence, rather than continuing the equal shared parenting agreement that had existed during the pendente lite period. Plaintiff argues in her cross-appeal that the trial judge erred when he made plaintiff solely responsible for a credit card debt to American Express in the amount of $25,497.61 and when he denied plaintiff's request for counsel fees.

I.

The record reflects that the parties were married on September 24, 1988, after two years of cohabitation. Two children were born during the marriage: a son who was eight years of age at the time of trial and an additional son who was almost seven when the trial commenced. The older boy has been diagnosed as suffering from Asperger's Syndrome and other conditions, but he is considered to be high functioning, and has been mainstreamed in school. The parties decided to divorce in November 2005. A divorce complaint was filed on March 3, 2006.

At the commencement of the marriage, plaintiff was employed by Johnson & Johnson as a sales representative, having been hired by that company in 1987, and defendant was employed by Citicorp. In 1991, defendant enrolled in the Benjamin N. Cardozo School of Law. After graduation, defendant worked for several prominent law firms and, during the last seven years of the marriage, was employed as an assistant and then associate general counsel at UBS Financial Services.*fn1

In the meantime, plaintiff's career at Johnson & Johnson had progressed. She was promoted to sales manager and was on the company's fast track for further promotion. However, she voluntarily took herself off the fast track so that she could work from home for the company while defendant pursued his legal career. At the time of the divorce, she was "time bound" to her position as a Business Development Manager, responsible for a major drug store client, and was not eligible for promotion for approximately five years from the date of the trial. Her future pay increases were projected to range from about three to four percent annually. The parties' lifestyle was deemed to be upper middle class.

Both plaintiff and defendant were high-earning individuals. Plaintiff's total compensation for 2006 was $173,558.19, with a base salary of $124,000. In 2005, it was $226,091, with a base salary of $119,000; in 2004, it was $200,045, with a base salary of $105,891; in 2003, it was $145,139, with a base salary of $95,900; and in 2002, it was $105,801, with a base salary of $88,200.

Plaintiff's non-base salary was comprised of cash bonuses, stock options, and restricted stock awards. The stock options could be exercised after a three-year vesting period. The restricted stock awards became plaintiff's, so long as she remained employed by Johnson & Johnson, without payment by her, after a similar three-year vesting period. A restricted stock award of 857 shares had been granted on only one occasion, on February 13, 2006.*fn2 The record suggests that vested stock options in the amount of 4,000 shares, granted on February 11, 2002, had not been exercised, although defendant's counsel stated at oral argument that all options that had vested at the time the divorce complaint was filed had been exercised. The record does not indicate whether plaintiff intended to exercise options vesting in the future or whether she had the means to do so. Existing marital stock accounts were equitably distributed at the time of the divorce.

Defendant's compensation, in 2006, was $284,580. In 2005, it was $221,580. The amount earned in 2004 is not reflected in the record. In 2003, compensation was $204,574, and in 2002, it was $189,824. In a written opinion rendered following trial, the judge found that the average disparity in incomes between the parties was $109,875.75, and that defendant was, therefore, financially capable of paying alimony.

At trial, plaintiff testified that her monthly budget was $11,530. In calculating alimony, the trial judge found that plaintiff earned $134,421, inclusive of bonuses, but exclusive of restricted stock and stock options and that her average monthly income was $8,000.*fn3 After an analysis of the statutory factors set forth in N.J.S.A. 2A:34-23(b), he awarded alimony in the amount of $697 per week payable in two equal payments of $1498.55 per month, commencing on August 3, 2007 and continuing thereafter until plaintiff's remarriage or defendant's death.

Additionally, after hearing the trial testimony of the parties, parent coordinator Dr. Amie B. Wolf-Mehlman, and plaintiff's friends, Mya Heinert, a board-certified pediatrician, Susan Edelman, and Maryanne Vaughn, the trial judge awarded the parties joint legal custody of the two children, but designated plaintiff as the parent of primary residence. Custody was split on a fifty-four/forty-six percent basis, with defendant having 117 weekend overnights and fifty-two midweek "dinner-type" visits with the boys. In reaching this resolution, the trial judge found that plaintiff had been the children's primary caregiver throughout their lives; that the parents were unable to reach a consensus on parenting styles and other child-related matters, thereby creating tension; and that the present shared custody arrangement was unsatisfactory and not in the children's best interests. After considering the child support ...


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