On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-955-09G.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2010 - Decided Before Judges Wefing, Payne and Koblitz.
Plaintiff Richard Knips appeals from a divorce decision after a full trial, arguing the trial judge erred in not awarding him sufficient alimony, not requiring his wife to pay his counsel fees, and not awarding him a greater share of equitable distribution. After considering his arguments in light of the record, and giving due deference to the trial judge's findings of fact, we are constrained to reverse the judge's decisions regarding alimony and remand for further findings regarding counsel fees.
The parties were married in 1974, and were thus married for thirty-four years prior to plaintiff filing a complaint for divorce from bed and board based on irreconcilable differences on October 10, 2008. N.J.S.A. 2A:34-3. See Weinkrantz v. Weinkrantz, 129 N.J. Super. 28, 32-33 (App. Div. 1974). Defendant filed a counterclaim for a complete divorce based on the same cause of action. The judge granted a complete divorce. The parties have one child, a daughter who was born in 1980.
The trial judge tried this matter over a period of three days and made a thorough record of her findings in her oral decision. Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We do not disturb the trial judge's factual findings, which are as follows.
At the time of the divorce plaintiff was fifty-eight years old and defendant fifty-six. Both parties are high-school graduates. Plaintiff worked as a waterfront rigger when he graduated from high school. Defendant wife also received nine months of business school training. She has consistently been the major breadwinner in the family, frequently working two jobs. At the time of trial she worked in computer training for a company at Fort Monmouth with a limited contract. Her health is generally good.
The parties started a karate school in 1985, taking advantage of plaintiff's black belt in karate. Plaintiff worked in the instructional part of the business with other employees, while defendant managed the financial and office work. Throughout the marriage defendant handled the finances. Defendant claims that plaintiff is so ignorant of financial matters that he does not write checks. Due to a back injury plaintiff sustained in 1975, as well as various re-injuries and surgeries, plaintiff became unable to continue working at the karate school, which the parties ultimately sold in 2006.
Plaintiff continues to take significant pain medication, spent $6000 to $7000 on marijuana towards the end of the marriage, is an alcoholic who has been in recovery for twenty-six years, and was determined to be eligible for disability benefits. He receives Social Security disability payments of $1112 per month. In spite of the great pain he suffered prior to his recent surgery in 2009, plaintiff continued to sing occasionally for $125 an hour in 2007 and 2008, and submitted this work information to the IRS under his daughter's name and another name. The judge imputed $125 per week in income to plaintiff based on this evidence.
Defendant earned at most $90,000 per year and was on track to earn $86,000 at the time of trial.*fn1 With disability payments and imputed income, plaintiff received $19,844 per year. Plaintiff resided in federally subsidized housing (according to his July 9, 2009 CIS, he pays $281 per month in rent), while defendant had purchased a two-bedroom condo where she lived with her currently unemployed daughter (according to her December 15, 2008 CIS, she pays $1579 a month toward her mortgage). Defendant's lifestyle closely approximates the middle-class lifestyle of the long-term marriage. During the marriage, the parties vacationed at the New Jersey shore and ate out at chain restaurants. They owned a home with a pool and deck.
Based on these findings, the court ordered defendant to pay plaintiff permanent alimony of $175 per week. This would increase plaintiff's annual income, including disability payments and imputed income from entertaining, to $28,944 and reduce defendant's annual income from $86,000 to $76,900.
Plaintiff argues that he lives in a 200 square-foot one-room housing unit while his former wife lives in a 1200 square-foot two-bedroom condominium. He claims that at times he cannot afford food and goes to a food pantry. He argues that defendant supports their daughter by not requiring her to pay rent, yet is not paying him sufficient alimony to allow him to live in a reasonable manner comparable to the marital lifestyle. According to defendant's CIS (which does not reflect alimony payments), her current standard of living is similar to the one she enjoyed during the marriage. Although the judge found that defendant bought her condominium anticipating plaintiff would remain in Georgia, where the cost of living is less and where he initially relocated with their daughter, this anticipation on the part of defendant does not justify setting alimony at an unreasonably low rate. Our courts have consistently held that alimony is intended to allow the dependent spouse to live at the marital standard of living, not just "bare survival." Lepis v. Lepis, 83 N.J. 139, 150 (1980); Crews v. Crews, 164 N.J. 11, 25 (2000) (stating that the marital standard of living "serves as the touchstone" for an initial award of alimony). Plaintiff's involvement with substance abuse is not relevant to determining alimony except insofar as it "negatively affected the economic status of the parties." Mani v. Mani, 183 N.J. 70, 90 (2005).
The judge did not find that plaintiff's behavior affected the economic status of the parties. The dependent spouse's legitimate middle-class needs cannot be met by his disability payments, imputed income and the $175 per week in alimony awarded by the trial judge.
Plaintiff also argues that, pursuant to Rule 5:3-5(c), the judge should have awarded him the $13,000 he incurred in counsel fees. N.J.S.A 2A:34-23. Defendant represented herself throughout the proceedings. The judge found only that defendant did not have the capacity to pay counsel fees and therefore determined that each party should be responsible for their own counsel fees. When deciding whether or not to award counsel fees, the judge must "consider the factors set forth in the court rule on counsel fees, the financial circumstances ...