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Raevsky v. Brody

May 26, 2010

ALLEN RAEVSKY, PLAINTIFF-RESPONDENT,
v.
CELY J. BRODY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-1637-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 10, 1010

Before Judges Reisner and Chambers.

Defendant Cely J. Brody appeals from Family Part orders dated June 30, 2009 and July 21, 2009, entered after a remand from our earlier decision in Raevsky v. Brody, No. A-0377-07 (App. Div. Feb. 25, 2009). We affirm.

I.

The factual background is detailed in our 2009 opinion and need not be repeated here. To summarize, the parties divorced in 2002, after a twenty-year marriage. Pursuant to their property settlement agreement (PSA), plaintiff Alan Raevsky was obligated to pay defendant $1667 per month in "rehabilitative alimony," and $3780 per month as "spousal consideration," including child support, until July 15, 2006. Plaintiff agreed to be solely responsible for "any and all college educational expenses" for the parties' children, including housing expenses, to the extent that he was able.

The PSA provided that defendant would remain in the marital home, which the PSA valued at $190,000 at the time of the agreement. The mortgage note, for which defendant assumed responsibility, was approximately $61,800 when the PSA was signed. Plaintiff was to receive a credit for approximately $65,000, representing one-half of the value of the house after deductions for the remaining mortgage note and hypothetical realtor commissions. Plaintiff held a mortgage on the marital home to secure the debt. Raevsky, supra, slip op.

In our opinion, we noted that "the amount of alimony was more than the minimum defendant needed for support, because it took into account the shorter duration of the obligation.

Plaintiff likewise testified that the amount of alimony was 'difficult for me to swallow,' but he accepted it because he knew it would end on a date certain." Id. at 13.

Shortly before plaintiff's alimony obligation was scheduled to end, defendant moved to vacate the PSA: contending that it was the product of fraud and overreaching, that its terms were unconscionable, and that at the time the agreement was negotiated she was under psychiatric care and not capable of entering into an agreement. In the alternative, she moved to convert her rehabilitative alimony into permanent alimony, arguing that she was incapable of supporting herself. [Id. at 2.]

We remanded the case for reconsideration of whether defendant was entitled to an extension of alimony based on her alleged disability. In that context, we also directed the trial court to determine the marital lifestyle during the marriage, as a basis for determining the reasonableness of any alimony award. We suggested that the court consider the budget documents the parties had used in negotiating the PSA, as well as possible additional testimony.

The parties negotiated for several months before the scheduled remand hearing, and both sides indicated to the trial judge that "the matter was virtually settled." However, after speaking with another attorney about the propriety of the settlement, defendant informed plaintiff and the trial judge "on the eve of trial" that she would not be settling and that she wished to proceed.

The following evidence was presented at the remand hearing. On September 6, 2007, after the initial trial, defendant applied for disability benefits from the Social Security Administration (SSA) based on several medical conditions. On August 30, 2008, the SSA notified defendant that she was eligible for $743 in monthly benefits.*fn1 At the time of the trial in June 2009, she had received an increase to $792 monthly after a Medicare deduction. Because the SSA found her qualified to receive benefits as of August 2006, defendant also received two retroactive lump sum payments. However, defendant was "not certain" of the amounts, indicating that one payment was between three to five thousand dollars and the other was around five thousand dollars. She "didn't know what happened" to another $5000 in retroactive payments that she apparently received from SSA. She provided no documentation as to how she spent the retroactive payments.

Defendant received approximately $80,000 from the sale of the marital home. She claimed she spent this amount repaying loans for legal fees and repaying her mother for living expenses. Additionally, she testified that she gave $10,000 of the lump sum Social Security benefit to her mother for living expenses. She testified that she spent the $72,600 that she received from IRAs on the children and her "[l]iving expenses that were not covered by the estimated budget."

Addressing the marital lifestyle, defendant testified that during the marriage she regularly spent approximately $1000 per month on clothing for herself, plus $1000 a month on the children's clothing. She also stated that she purchased five suits for plaintiff every year, which cost approximately $1000 each. Defendant stated that she and plaintiff went out to dinner once a week, and that she and the children would dine out twice per week. They did not frequently entertain in their home. According to defendant, the couple spent over $25,000 on their daughters' bat mitzvah celebrations. However, they did not routinely buy expensive gifts for each other.

The marital home was purchased in 1985 for $107,000. Approximately ten years later, new carpets and lighting were put into the home, and the children got new furniture. However, according to defendant, plaintiff's parents paid for some of the improvements and furniture. The family occasionally took vacations for a week or two to Ocean City, New Jersey or Virginia Beach, and took one trip to Disney World for a week. Additionally, plaintiff and defendant would take a vacation to the Caribbean for five days every year.

With regard to her current expenses, defendant explained that after the marital home was sold, she moved in with her mother, who leases a townhouse in an adult community in Voorhees. Defendant's Case Information Statement (CIS) listed her rental payment as $2050 per month, but defendant admitted that figure represented the total rental payment, not her share, and that she was not actually paying rent. Defendant also testified that her mother paid all of the maintenance expenses and utility bills, as well as the lease on defendant's 2003 Acura automobile. She did not, however, produce a copy of the house or automobile leases or any other documentation to substantiate her housing expenses. Defendant testified that her mother did not pay any of the couple's shelter or transportation expenses during their marriage. On cross-examination, defendant disputed the amounts in the budget form that the parties used to negotiate their PSA, although she had agreed to them at the time of the negotiations.

In his testimony, plaintiff explained in detail how the parties arrived at the numbers used for the budget they used to negotiate the PSA. Defendant's household expenses, with the children, were calculated to be $3810 per month. With the spousal consideration and rehabilitative alimony, plaintiff paid an additional $103,950 above and beyond defendant's expenses over the sixty-four months of alimony required by the PSA. Plaintiff testified that he was also paying the college tuition expenses for his daughters, totaling $2049 per month.

Plaintiff disputed defendant's characterization of their spending habits during the marriage. He testified that defendant did not spend anywhere close to $2000 a month on clothing, nor did she buy him $1000 suits. He also testified that most of the money for the daughters' bat mitzvah parties came from his grandfather, and from gifts. He testified that the family took very modest vacations, and his parents paid for their daughter to take a trip that the couple would not have been able to afford. His parents also paid for some of the improvements to the marital home.

After the two-day remand hearing, the trial judge issued a written opinion dated June 30, 2009, setting forth a detailed analysis of the factors set forth in N.J.S.A. 2A:34-23b. The court determined that the defendant's current expenses totaled $1388 per month. Although defendant claimed a monthly budget of $5035, she was not actually incurring most of those expenses. Specifically, the court noted that defendant's mother paid the $2050 monthly rental expense, which was "consistent with defendant's trial testimony that the lease was in [her mother's] name." Additionally, the court noted defendant did not provide a copy of the rental agreement at the remand hearing to justify the expense.

The court found that defendant's income was limited to the $792 monthly Social Security disability benefit. Defendant filed her SSA disability application on August 17, 2007, after the June 26, 2007 trial decision. On or about August 20, 2008, the SSA notified the defendant that she would receive benefits. The court found "no basis to impute additional income to defendant over and above her Social Security Disability benefit," because plaintiff presented no evidence rebutting the ...


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