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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 ...

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