On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-902-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
Defendant David K. Rossi appeals from a dual final judgment of divorce entered following a bench trial on his counterclaim and plaintiff Suzanne Rossi's complaint. The Rossis reached an agreement to share joint legal custody of their two children, assign primary residential custody to plaintiff and provide liberal parenting time for defendant. Defendant's objections to the judgment are to permanent alimony and excessive pendente lite support; allocation of post-complaint credit card debt; child support above the guidelines amount; college expenses; and counsel fees.
We affirm the judgment as modified by this opinion. The modifications correct errors affecting post-complaint debt, pendente lite support, the counsel fee award and child support.
Plaintiff and defendant were married on September 15, 1995. At that time, plaintiff was twenty-seven years old and defendant was thirty-one. They have two daughters - one born in July 1994 and the other in February 1996. When the Rossis married, defendant was a high school graduate and working as a linesman for Public Service Electric and Gas (PSE&G), a job he had then held for about ten years. Plaintiff had not graduated from high school but had worked in retail stores. Although defendant thought plaintiff had obtained a GED, she denied that. During the marriage, plaintiff devoted the majority of her time to caring for the children and their home.
About a year after the Rossis' second daughter was born, plaintiff returned to work in retail stores. Her schedule was generally part-time, and her longest work week was thirty-five hours. At some point during the marriage, plaintiff attended beauty school, but she did not take the test required to obtain a license to work in that field. Although plaintiff was diagnosed with multiple sclerosis in 1998 or 1999, she described her health as "okay" for the most part. She has "little bouts in and out of the hospital when [she is] run down, stressed." The prospect of needing "hospitalization" due to "stress" was her "biggest fear" at the time of trial, but she also observed that her "memory is not as good as it used to be."
By working in retail stores, plaintiff earned less than ten dollars per hour. Her hourly wage at the time of trial was $9.59. She testified that health benefits are available through her employer if she pays for them but did not specify the cost. Between 2005 and 2008, plaintiff's highest earnings were $9700 and her lowest earnings were $8507.
Defendant worked for PSE&G throughout the marriage, and by the time of trial he was responsible for his crew of linesmen. His work is done outdoors in all kinds of weather and involves installing, maintaining and repairing wiring, utility poles and transformers. In 2002, defendant was out of work for four to five months while recovering from surgery to repair his right shoulder's rotator cuff. At the time of trial, both of his shoulders were bothering him. After an MRI, physical therapy three times per week was recommended, but defendant was not attending because he felt he could not afford the twenty-five dollars per session co-pay. Defendant's base pay is about $85,000 per year, but he generally receives additional compensation for working overtime hours. His gross Medicare wages and tips during the years 2005 through 2008 were: 2005, $111,540; 2006, $119,414; 2007, $98,675; and 2008, $113,459. If he needs additional surgery, he will receive his base pay but not overtime.
The Rossis separated in October 2007; plaintiff's mother had been living with them for about ten years.*fn1 She helped them purchase their home by contributing $10,000 or $20,000, and thereafter helped with some expenses. For example, she paid for the replacement of the windows on the second story of the house and, from time to time, food and clothing for the children. Plaintiff's mother earns about $43,000 at a full-time job in which she works during the day. Plaintiff testified that her mother always paid their PSE&G bill and cared for the children at night when needed.
Plaintiff continues to reside in the marital home with the children and her mother. At the time of trial, plaintiff was forty-one years old. Defendant was forty-five years old and living with his mother and father in his childhood home, as he had been since he left the marital home in October 2007.
The Rossis were able to resolve several issues prior to trial. As noted above, they reached an agreement on custody and parenting time. They also stipulated that their home has a fair market value of $330,000 and, after deductions for the amount due on first and second mortgages, equity in the amount of $157,408.
In addition to the first and second mortgages, the Rossis had other significant debt. In 2005, they borrowed $43,000 from defendant's father to purchase two cars. They agreed to allocate the remaining balance on that loan so as to give recognition to the relative value of the cars - plaintiff's share being $12,800, and defendant's share being $17,700. On the initial Case Information Statement (CIS) plaintiff filed with the trial court, she reported a monthly payment of $450 on that car loan. In a subsequent CIS she lists a monthly payment of $100.
The Rossis also agreed, prior to trial, to share their pre-complaint marital credit card debt in the amount of $64,000.
They were unable to agree on responsibility for credit card debt incurred by plaintiff after the complaint was filed. Plaintiff "reserved her right to seek the division of the post-complaint Citi credit card debt in her name."
The trial judge addressed post-complaint debt. Although the judge denied plaintiff's request for an order compelling defendant to share in debt incurred after defendant commenced payment of pendente lite support, he granted relief with respect to post-complaint credit card debt incurred when plaintiff was not receiving pendente lite support. The judge ordered defendant to pay one-half of $12,153 - the amount that the judge determined plaintiff charged post-complaint and prior to the entry of the first pendente lite order. The $12,153 figure includes, however, $7613 already allocated as part of the $64,000 total that the Rossis had agreed to share. ...