On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1111-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2011 - Decided
Before Judges Payne and Baxter.
Defendant D.M.P. appeals from a November 17, 2009 Judgment of Divorce (JOD) that denied her request for alimony and for equitable distribution of the pension plan of her former husband, plaintiff S.P. The parties were married in 1985, and separated in 1990; however, plaintiff did not file his complaint for divorce until November 2008. We agree with defendant's argument that the judge committed reversible error by using the 1990 date of separation as the dispositive date for purposes of determining defendant's entitlement to alimony and equitable distribution. We also agree with defendant's argument that the judge's refusal to award her alimony improperly ignored the enormous disparity in the parties' income as well as defendant's extremely serious medical and psychiatric problems. We therefore reverse the portion of the JOD that denied such relief to defendant, and remand for further proceedings during which the Family Part shall reconsider the issues of alimony and equitable distribution with the year 2008 being deemed the date the marriage ended.
I. Married in 1985, the parties separated in 1990. They have one child, a son born in the summer of 1986. Approximately two years after the parties' separation, defendant sought, and obtained, an order of child support, which required plaintiff to pay the sum of $469 every other week. Plaintiff was continuing to pay such child support at the time of the September 2009 divorce trial. A domestic violence complaint filed by plaintiff in 1995 was dismissed without the entry of a final restraining order. There were no court proceedings between the parties thereafter until plaintiff filed his complaint for divorce in November 2008.
At the time of the divorce, plaintiff was employed by the United States Postal Service (USPS), earning $51,338 in 2008. He is eligible for a retirement pension through his employer, from which he can expect to receive $875 per month. Plaintiff will also be eligible for Social Security retirement benefits in the amount of $1349 per month upon retirement.
While separated, plaintiff paid defendant $469 in child support payments, as required by the 1992 order. Plaintiff also supplied healthcare coverage to defendant and their son through his health insurance plan with the USPS. Plaintiff acknowledged providing considerable financial assistance to defendant during their separation. In 1998, by which time the parties had already been separated for approximately eight years, defendant received an eviction notice, and plaintiff paid $3500 to enable her to maintain her residence. Afterward, he continued paying $500 to $1000 for the next six months to a year for defendant's rent. In 2000, plaintiff gave defendant a vehicle to use, but the car was involved in an accident. In 2001, he bought her another vehicle as a replacement. When that car was subsequently involved in an accident, plaintiff continued to make payments on the car loan. Further, approximately two years before trial, plaintiff borrowed $12,000, and used the proceeds to pay for defendant's living expenses.
Defendant suffers from bipolar disorder, depression, anxiety disorder, schizophrenia and thyroid cancer. She was diagnosed with bipolar disorder as early as 2006, and, at the time of trial, was receiving Social Security disability payments in the amount of $1116 per month. She also receives medical coverage under Medicare Part B. Before collecting Social Security disability, defendant worked for nine years in the food stamp department of the Board of Social Services, but had not worked since 2000, due to her disabilities.
At the time of trial, defendant was living with the parties' son in an apartment in Newark, paying monthly rent of $783, subject to a $17 per month surcharge for air conditioning in the summer months. Defendant testified that she purchased all of her clothing at the Salvation Army, and had a balance in her checking account of $3. She had no savings. She was driving a nine-year-old car owned by her father. After an infestation of bed bugs caused her to discard all of the furniture and bedding in her apartment, she was forced to obtain mattresses for her and her son from a local charity because she could not afford to buy new ones. She found a sofa and a chair on the sidewalk about a block from her home, and two men helped her tie it to her car and move it into her apartment. When asked if she had any bedding and linens or any kitchen equipment, she answered, "not now." Defendant also explained that she had borrowed $350 from a friend and $149 from a rabbi to buy food.
Defendant was paying $100 per month for medication, and estimated that this cost would increase by $200 to $300 per month after the divorce. She also had outstanding bills of approximately $600 for medical costs not covered by either plaintiff's insurance plan or her own Medicare Part B, a Verizon bill in the amount of $1724, and was responsible for payment of the outstanding balance owed to the private school the parties' son attended while in high school.
The judge granted dual judgments of divorce but, as we have noted, denied defendant's request for equitable distribution of plaintiff's pension and her request for alimony. In an oral opinion, the judge noted that there was a considerable disparity in the parties' income, with plaintiff earning a net income of $43,000 per year and defendant receiving a monthly Social Security check of $1116, for an annual income of $13,392. The judge also recognized that defendant suffered from serious medical and psychiatric problems. Nonetheless, after finding that the operative date for determining the length of the marriage was the date of the parties' separation in 1990, not the date of the filing of the divorce complaint in 2008, the judge concluded that the marriage lasted for only five years, and was of such short duration that no alimony should be awarded to defendant.
On the issue of equitable distribution, the judge determined that defendant's equitable interest in plaintiff's USPS pension was so slight in 1990, when the marriage ended, as to render defendant's interest in the pension, for purposes of equitable distribution, de minimis. For that reason, the judge refused to grant defendant any equitable distribution of plaintiff's pension. The judge also declared the parties' son emancipated, finding that he had dropped out of college after his freshman year.
In concluding that 1990, rather than 2008, should be the date the marriage ended for purposes of alimony and equitable distribution, the judge specifically rejected defendant's argument under Brandenburg v. Brandenburg, 83 N.J. 198 (1980) that the date of the filing of the complaint for divorce is the date by which to judge the parties' respective rights concerning alimony and equitable distribution. Observing "that's not cut in stone," the judge cited Kruger v. Kruger, 73 N.J. 464 (1977), Smith v. Smith, 72 N.J. 350 (1977), and Grayer v. Grayer, 147 N.J. Super. 513 (App. Div. 1977).
In the course of his oral opinion, the judge found that because defendant's father was handling her finances, "he is clearly subsidizing his daughter in helping her financially." Defendant's attorney attempted, unsuccessfully, to correct the judge, stating that defendant's testimony did not indicate that defendant's father was "subsidizing her," but merely that her father paid her bills on her behalf with the money she received.
In the Supplemental Judgment of Divorce, the judge reiterated his earlier conclusion that defendant was not entitled to alimony or to the equitable distribution of plaintiff's pension. The judge concluded:
2. Alimony. Defendant's claim for alimony is denied based on the Court's findings that the parties have been separated since on or around 1990 and have not lived together as husband and wife for any significant time thereafter. The Court further found that notwithstanding the Defendant's status of being disabled and receiving Social Security/Disability, based on the Court's determination of the short-term of the parties' ...