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Raevsky v. Brody


May 26, 2010


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

Per curiam.


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.


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 defendant's prima facie showing of her inability to work. (citing Golian v. Golian, 344 N.J. Super. 337, 342-43 (App. Div. 2001)).*fn2

The court found that plaintiff's monthly expenses were $10,535, a "significant portion" of which was attributable to a $2049 monthly payment for college expenses for the parties' youngest daughter. Plaintiff's CIS reported his gross earned income for 2008 as $168,000, with a net income of $113,223. The court noted that "for the time period leading up to the PSA," plaintiff's income averaged $130,000, which was "precisely the income utilized in the budget . . . the parties prepared in anticipation of their PSA."

Noting the "considerable disparity in the income of the parties," the court concluded that "plaintiff would have enough money to meet his monthly budget, but the defendant would fall short even should the court reduce the defendant's budget per month due to the fact that defendant's mother pays most of the bills." However, the court found that defendant had failed to disclose the "lump sum" she received or would receive from Social Security.

The court concluded, "[i]n the absence of any evidence of a clear and convincing nature that refutes the presumption that defendant wife is unable to work, . . . the defendant wife does exhibit a physical and/or mental impediment to engaging in full-time gainful employment." Consequently, an award of permanent alimony was appropriate.

Considering the standard of living established during the marriage, the court concluded that "the pre-divorce lifestyle had been quite modest and involved a constant struggle to make ends meet." The judge noted that the marital "home was essentially of the ilk of a middle-class subdivision," and that the family occasionally took vacations which were not "extravagant or extraordinary." No evidence demonstrated that the family was able to amass substantial savings, "beyond an otherwise normal and ordinary attempt to provide for retirement." They did not have any "expensive hobbies" or collections, and did not regularly dine at expensive restaurants. The court described the testimony about the marital life as "reveal[ing] nothing more than a classic middle-class lifestyle."

The court did not find defendant to be a credible witness on the financial issues that were key to his decision. The court considered the budget used during the PSA negotiations to be the "best evidence of the marital lifestyle that existed at the time the parties separated," and was "persuaded that that the parties' marital lifestyle, at about the time of separation, is reflected in the numbers as set forth in the budget." The court found that "defendant's attempts to challenge the accuracy of those numbers . . . was not at all convincing. Defendant had no corroborating proof that the numbers were low or otherwise inaccurate." The court specifically rejected defendant's assertion that she spent over thirty thousand dollars a year on the family's clothing during the marriage.

Relying on "the numbers as set forth in the budget," the court found that "three thousand eight hundred ten dollars ($3810) per month is a fair approximation of the financial marital lifestyle for defendant and the two children." However, the court found that defendant does not currently incur any financial obligation for her children. Neither child was living with a parent, and plaintiff assumed the financial obligation for the children's college expenses and provided their medical benefits. Noting that the PSA provided child support to defendant as part of an overall "spousal consideration" payment of $3780 monthly, the court found that the child support guidelines could reasonably have supported an allocation of $375 per week, leaving $2177.50 per month as actual spousal support.

The court determined that meeting defendant's needs as currently listed in her CIS, with adjustments for the bills that she listed but is not paying, would reasonably maintain her marital lifestyle. In determining defendant's current needs, the court found "defendant's expenses as set forth in her CIS dated April 13, 2009 to be generally reasonable." "The court note[d] that defendant's current budget reflects a spartan lifestyle, but is nevertheless somewhat consistent with the no- frills lifestyle as portrayed in the budget figures computed for purposes of the PSA." The court noted that the "transportation costs in defendant's Schedule B would certainly seem reasonable," in light of the lack of any evidence to support the conclusion that her disability rendered her incapable of driving.

In considering the previously ordered equitable distribution, the court found:

[T]he defendant has failed to offer a credible explanation as to whether she made prudent use of assets from the equitable distribution or rather unreasonably dissipated same. The court is not persuaded that defendant did make prudent use of the assets stemming from the PSA. Plaintiff should not be required to replace assets given to defendant for her support but which she unreasonably dissipated.

The depleted assets included $72,600 in IRAs that defendant received, and funds generated by the sale of the marital home. The court rejected defendant's testimony that she used those funds to pay legal fees. The court also found that our prior decision precluded defendant from challenging the equitable distribution provisions of the PSA.

However, the court concluded that modification of the PSA's support provisions was appropriate in light of defendant's disability and her inability to engage in gainful employment. He concluded that a permanent alimony award of $325 per week ($1387.50 monthly), "would be sufficient to permit defendant to meet her budget (as adjusted and analyzed by the court above) while taking into account the taxable nature of these alimony payments." The court further noted that the alimony award and defendant's disability benefit would give her a total monthly income of $2189.50, which "closely approximates the PSA monthly spousal support amount ($2177.50) once [$375 per week for] child support is subtracted out."

The court declined to award the alimony retroactively, and ordered plaintiff's obligation to be effective as of July 1, 2009. Citing the unique circumstances, given defendant's initial failure to meet her burden to establish the parties' marital lifestyle and show a change in circumstances, the court determined the effective date pursuant to "equitable principles and fairness to the parties."

The court declined to use the date of our 2009 decision because the parties were then in a position to amicably resolve the dispute, and "neither party should be penalized or rewarded by the fact that ultimately additional hearing days were required to reach resolution." The court found the effective date of defendant's disability as determined by the SSA to be "entirely inappropriate," citing a lack of evidence in the record explaining how the SSA arrived at the date.

The trial judge issued an order on June 30, 2009: (1) ordering plaintiff to pay $1397.50 per month in permanent alimony beginning July 1, 2009; (2) refunding, with interest "[a]ll overpayments made by plaintiff to defendant after July 15, 2006" from the monies held in escrow; (3) awarding defendant $15,667 plus interest commencing March 9, 2009 as a "set off" from the plaintiff's overpayments; (4) disbursing, with interest, plaintiff's share of the proceeds from the sale of the marital home; and (5) awarding any residuum from the monies in escrow to defendant. Neither party was awarded attorney's fees.

Defendant filed a motion for reconsideration on July 20, 2009. In a letter to the parties date July 21, 2009, the judge stated that his June 30, 2009 decision and order "adequately addresses the issues raised during the remand hearing." The judge issued an order that same day denying defendant's motion.

In response to a letter from defendant's counsel urging him to reconsider his denial of the defendant's motion for reconsideration, the judge issued a five page letter opinion dated July 23, 2009, detailing his reasons for denying the motion. Specifically, the judge noted that defendant's motion for reconsideration raised, for the first time, the contention that plaintiff should be required to maintain life insurance for defendant's benefit. Similarly, defendant had not sought attorney's fees during the remand hearing. Further, the judge noted that defendant had not prevailed at the trial or appellate level, but the case was remanded in anticipation of a future support motion.

The judge reiterated that the effective date of plaintiff's permanent alimony obligation represented a balancing between the court's enforcement of the PSA, defendant's failure to sustain her burden at the time of the initial trial and appellate decisions, and defendant's current economic need. With regard to defendant's assertions that the trial court erred in finding that the child support guidelines could have supported a determination of $375 per week, the judge noted that "an appropriate Guidelines figure could well exceed $375 per week for the two girls."


On this appeal defendant argues, among other things, that she is entitled to a higher alimony award; that the judge should not have commenced the permanent alimony on July 1, 2009 but rather on an earlier date; and that plaintiff was not entitled to repayment for alimony that he paid defendant between July 15, 2006, the date on which the PSA provided that alimony would terminate, and April 30, 2008. Defendant presents the following points for our consideration:

A. The Trial Court Abused Its Discretion in Awarding an Amount of Permanent Alimony Which Relegated the Dependent Spouse to a Subsistence Existence.

B. The Trial Court Erred When it Failed to Direct the Supporting Spouse to Have Life Insurance in Place for the Benefit of the Dependent Spouse as Protection for His Permanent Alimony Obligation.

C. The Trial Court Erred in Commencing Permanent Alimony to Defendant Seven Years after the Parties' Divorce.

D. The Trial Court Erred in Creating Gaps of Time Between Termination and Commencement of Permanent Alimony.

E. The Trial Court Erred in Denying Defendant's Request for Counsel Fees.

F. The Trial Court Erred in Refusing Oral Argument On Defendant's Motion for Reconsideration and Further Erred By Denying Her Motion.

G. The Trial Court Erred in Providing Full Retroactive Support Credits to Plaintiff Without Providing Any Retroactive Support to Defendant.

Having reviewed the record, we conclude that these points are all without merit and, except as addressed herein, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by the trial judge in his written opinions. We add the following comments.

Our review of the trial judge's factual findings is limited; if those findings are supported by sufficient credible evidence, they will not be disturbed. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We defer to the credibility determinations of the trial judge where, as here, the judge has made specific credibility determinations after hearing extensive testimony. See State v. Locurto, 157 N.J. 463, 470-74 (1999). And we owe particular deference to the Family Part because of its expertise in matrimonial matters. Cesare, supra, 154 N.J. at 412.

We will not disturb the trial judge's award of alimony absent abuse of discretion:

The award of spousal support is broadly discretionary. This discretion is codified in N.J.S.A. 2A:34-23(b) which provides that "[i]n all actions . . . for divorce . . . the court may award . . . permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party." (Emphasis added). Of course, the exercise of this discretion is not limitless. In itemizing the thirteen specific criteria to be considered in fixing alimony, the statute sets guidelines and objective standards which frame the exercise of the court's discretion. [Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005).]

In determining an alimony award, the trial court must consider the following statutory factors:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and

(13) Any other factors which the court may deem relevant. [N.J.S.A. 2A:34-23b.]

In the context of the remand, the trial judge appropriately considered these factors and determined that defendant should receive permanent alimony even though the parties had originally agreed to term alimony. Following our 2009 opinion, the trial court properly considered the resources defendant had already received under the PSA, including support payments far in excess of her alimony needs and substantial amounts of equitable distribution.

In calculating the defendant's current needs, the judge properly considered defendant's unreasonable depletion of assets previously received. In determining whether and to what extent a modification of a PSA is appropriate, the court may consider whether any of the equitable distribution was intended to provide for future needs. For example:

[A]lthough a spouse cannot maintain the marital standard of living on the support payments received, this would not ordinarily warrant modification if it were shown that a single large cash payment made at the time of divorce was included with the express intention of meeting the rising cost of living. In other cases, the equitable distribution award -- which we have recognized is intimately related to support, -- might have been devised to provide a hedge against inflation. [Lepis v. Lepis, 83 N.J. 139, 153 (1980) (citation omitted.]

Moreover, in determining the extent of the defendant's alimony benefit, the court may consider the "trade-off" that the defendant bargained for and received in the PSA. As we have recognized, in exchange for receiving a larger share of assets, a spouse may agree to limit either the amount or the duration of alimony, or both. Where such trade-offs are shown to have occurred, this may be taken into account along with all other circumstances in determining whether an award of alimony should be modified and, if so, to what extent . . . . [Shifman v. Shifman, 211 N.J. Super. 189, 195 (App. Div. 1986).]

Here, the PSA awarded the defendant a larger alimony payment than she would have otherwise been entitled to for six years. She received the full economic benefit of the PSA before filing her modification application.

In addition to recognizing that plaintiff had "overpaid" defendant approximately $104,000 in support, the trial judge considered that defendant had no credible explanation for having spent the entirety of $72,000 in IRAs and $80,000 in proceeds from the sale of the marital home. As the judge noted, "defendant spent all of this money and presented herself in court as essentially destitute, having no assets whatsoever." In our 2009 opinion, we observed that "the parties understood that plaintiff would provide defendant with assets beyond those required as alimony, in exchange for a termination of his alimony requirement after six years." Raevsky, supra, slip op. at 38 (citing Miller v. Miller, 160 N.J. 408, 420 (1999)). See also Lepis, supra, 83 N.J. at 153. Therefore, the judge's consideration of the defendant's unreasonable depletion of her assets when determining her current needs was not an abuse of discretion.

Defendant's reliance on Glass v. Glass, 366 N.J. Super. 357 (App. Div.), certif. denied, 180 N.J. 354 (2004), is misplaced. Unlike the defendant in Glass, who lived frugally in order to save for her future needs, the defendant here provided no credible explanation for depleting her share of the equitable distribution and the excessive alimony payments she received for six years.

Moreover, defendant grossly inflated her calculation of the marital lifestyle, as well as her own post-divorce financial needs. It was defendant's burden to establish changed circumstances justifying a departure from the terms of the PSA. Lepis, supra, 83 N.J. at 157. We cannot fault the trial judge for limiting the permanent alimony award to an amount supported by the evidence he found credible. Further, given the financial resources defendant received in the PSA, we find no abuse of discretion in the judge's decision to make plaintiff's permanent alimony obligation prospective rather than retroactive.

We likewise find no abuse of discretion in the judge's refusal to address the issue of life insurance, because defendant failed to raise that issue at the trial. Nor do we find any basis to disturb the judge's discretionary decision not to award counsel fees to either party.


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