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Brody v. Brody


July 2, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1219-08.

Per curiam.


Argued March 9, 2010

Before Judges Gilroy and Simonelli.

Defendant Lisa Brody appeals from that part of the April 2, 2009 Family Part order denying her request for permanent alimony, equitable distribution of an Individual Retirement Account (IRA), and counsel fees, and imputing income to her for child support purposes. We affirm.

We derive the following facts from the evidence presented at trial.

The parties were married on September 8, 1990. Two sons were born of the marriage, one in 1992 and the other in 1995. In 2002, the parties began sleeping apart. They separated on June 2, 2003, after the sale of the marital home, from which they each received $12,500. Thereafter, defendant and the children began residing with defendant's paramour, which is where they resided at the time the trial began in January 2009. Plaintiff filed a divorce complaint on February 20, 2008.

Although the parties testified that they enjoyed a middle class standard of living during the marriage, they struggled financially, with both parties filing for personal bankruptcy in 2002, and plaintiff's business going bankrupt that same year. At the time of trial, plaintiff, then age forty-three, was employed by a car dealership, earning $1,000 per week plus commissions. He earned $126,112 in 2008. He also has an IRA, which had a value of $91,662.83 as of January 28, 2001. He withdrew $35,350 from January 2002 to May 2003, and $37,200 from January 2004 to June 2007, allegedly to pay the family's expenses after his business failed and to support his children. The IRA had a value of $14,552.67 as of December 31, 2008.

During the parties' separation, plaintiff paid $441 per month for defendant's car, $75 per month for her car insurance, and placed her on his cell phone account. Plaintiff also paid $200 per week for child support, $133.28 per week for medical insurance and $8.54 per week for dental insurance for himself, defendant and the sons, $25 per month for his sons' orthodontia, $550 per month for his youngest son's sports clubs, and $3,889 for his youngest son's dental bills. He also had a tax judgment entered against him in 2008 for $12,230.36 owed by his defunct corporation.

Defendant graduated high school and completed two semesters of college. She worked part-time during the marriage as a receptionist and bank teller, earning approximately $17,000 per year at one point. After the separation, her income steadily decreased: she earned $10,699 in 2005, $11,947 in 2006, and $7,744 in 2007. In 2008, she worked an average of ten hours per week, earning $13 per hour. She became unemployed in September 2008, and received $127 per week in unemployment benefits. In 2008, she earned $6,800 from her employment and $2,052 from unemployment benefits, for a total income of $8,852. At the time of the trial, she was forty years old. She had not sought employment after September 2008, because she wanted to be home for her then-teenaged sons.

Defendant's paramour earns approximately $78,000 per year. During the time defendant lived with him she allegedly paid $500 monthly for groceries. However, the paramour has paid all of the household expenses since the time defendant became unemployed in September 2008.

Defendant sought permanent alimony of $300 per week. Applying the criteria set forth in N.J.S.A. 2A:34-23(b), the trial judge denied permanent alimony, finding that defendant was "totally not dependent on plaintiff for support, as plaintiff [had] not contributed to her lifestyle for the last six years[,]" and from the time of the separation "defendant was supported by her cohabitant continuously up to the time of trial and the cohabitation is to continue for an indefinite time." The judge found lacking in credibility defendant's and her paramour's testimony about their cohabitation, emphasizing that "the paramour's testimony on the issue of cohabitation was prepared and coached by the defendant. The Court even observed defendant sending physical signals to her paramour during... his testimony."

The judge rejected defendant's claim that the parties had a $125,000 annual income during that marriage, and found the amount to be approximately $75,000. The judge also found that during the six years of separation, defendant had maintained the standard of living the parties enjoyed during the marriage.

Defendant also sought child support. In setting the amount of child support, the judge relied on the child support guidelines and plaintiff's 2008 income of $126,112, and increased the amount from $200 weekly to $356 weekly, with a weekly credit of $42 for the children's medical insurance. The judge also imputed income to plaintiff of $13 per hour based on a forty hour work week, concluding that

There was no evidence presented to the Court that the defendant is unable to work a full work week. Instead, defendant relies on her personal preference to be home with her children. The children are ages 16 and 13, and there was no evidence of circumstances that would require defendant to be home full-time. Defendant is clearly able and capable of maintaining full-time employment. Defendant also sought equitable distribution of fifty percent of the amount plaintiff withdrew from his IRA during the marriage and fifty percent of its value as of December 31, 2008. The judge denied equitable distribution of the $35,350 in withdrawals made from January 2002 to May 2003, finding credible plaintiff's testimony that he used those funds to support the family and maintain a marital standard of living during a time when "the parties were experiencing financial difficulties as plaintiff's business had [gone] into bankruptcy in 2002."

However, the judge found not credible plaintiff's testimony that he used the $37,200 withdrawn from January 2004 to June 2007 for the same purpose, and awarded defendant $18,600. The judge also awarded defendant $7,276.33, representing fifty percent of the IRA's value as of December 31, 2008.

The judge also ordered plaintiff to continue paying for defendant's car, and denied each parties' request for counsel fees, finding that "[n]either party was overly successful in the issues presented at trial[,]" and that both parties have the ability to pay their own attorney's fees. Specifically as to defendant, the judge found that although a disparity existed between the parties' income, "this is partially because of defendant's personal preference not to be employed." This appeal followed.

On appeal, defendant contends that the judge abused her discretion in denying permanent alimony and attorney's fees, and erred in imputing income to her in calculating child support and in the equitable distribution of the IRA. We disagree.

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). We give particular deference to the Family Part because of its expertise in matrimonial matters. Cesare, supra, 154 N.J. at 412.

"In reviewing an alimony award, '[w]e give deference to a trial judge's findings as to issues of alimony, if those findings are supported by substantial credible evidence in the record as a whole.'" Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000) (quoting Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608, (1998)). 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, 843 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005) (alteration in original).]

The party seeking alimony bears the burden of establishing need. Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992). Thus, in determining an alimony award, the trial court must consider "[t]he actual need and ability of the parties to pay[.]" N.J.S.A. 2A:34-23(b)(1).

We are satisfied that the trial judge properly determined that defendant failed to establish a need for permanent alimony. Except for a car, car insurance and a cell phone, defendant has not depended on plaintiff for support since the separation. Rather, she has been cohabitating with her paramour, who has been fully supporting her and her children for six years, and has maintained the standard of living she had become accustomed to prior to the separation. Further, plaintiff must still provide defendant a car, the monthly cost of which exceeds the $300 defendant seeks in alimony, thus providing defendant a benefit she received during the marriage.

As for the imputation of income, if the court finds that a parent, without just cause, is voluntarily unemployed or underemployed, it shall impute income to that parent based on potential employment and earning capacity, among other factors. Caplan v. Caplan, 182 N.J. 250, 268 (2005); Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992); Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, ¶12 at 2517.

Once the trial court decides that income should be imputed, it must then determine the reasonable amount of income to impute to that party considering the factors set forth in N.J.S.A. 2A:34-23(a). Caplan, supra, 182 N.J. at 270-71.

Applying these standards, we discern no abuse of discretion in the imputation of income by the trial judge. Defendant is voluntarily unemployed without just cause, and there is no evidence showing that she is incapable of working full-time, earning $13 per hour. Her desire to be home for her teenaged sons does not absolve of her obligation to contribute to their support.

We also discern no abuse of discretion in the equitable distribution of plaintiff's IRA. See Kothari v. Kothari, 255 N.J. Super. 500, 506 (App. Div. 1992) (holding that the trial court's determination regarding the dissipation of assets lies within the sole discretion of the trial court and will not be reversed absent an abuse of discretion). Defendant provides no competent evidence disputing plaintiff's credible testimony that he used the funds withdrawn from January 2002 to May 2003 for the benefit of the joint marital enterprise. Id. at 507.

Finally, an award of counsel fees in matrimonial matters rests in the discretion of the trial court. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). We will not disturb such exercise of discretion absent of showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). "Discretion, however, means legal discretion, 'in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly.'" Alves v. Rosenberg, 400 N.J. Super. 553, 562-63 (App. Div. 2008) (quoting State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966)).

Here, the judge properly considered the Rule 5:3-5(c) factors in determining whether counsel fees should be awarded. Although the judge did not make findings as to all nine factors, she noted the disparity in the parties' income but properly concluded that this disparity was "partially because of defendant's personal preference not to be employed." The judge determined that each party was able to pay his or her attorney fees, "both parties were somewhat unreasonable in their desire not to settle before a trial;" and that "[n]either party was overly successful in the issues presented at trial." Defendant has not shown that the judge abused her discretion in making these factual findings.



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