On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1319-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 3, 2011
Before Judges Fisher, Simonelli and Fasciale.
Plaintiff David W. Kinzler appeals from a dual final judgment of divorce (JOD). He contends that the trial judge erred by awarding permanent alimony, child support, equitable distribution, parenting time, and counsel fees. We affirm in part, reverse in part, and remand for further proceedings concerning credit card debt, counsel fees, and the issuance of a qualified domestic relations order (QDRO).
During the first few years of a twelve-year marriage, the parties had two children.*fn1 At the beginning of the marriage, David worked in the IT industry, and defendant Lori TalaricoKinzler was self-employed in a graphic design business. After their children were born, the parties agreed that Lori would close her business and stay at home to raise them. She was later diagnosed with breast cancer, and underwent treatment and several surgeries. At the end of the marriage, Lori freelanced for a marketing company occasionally and worked as a substitute teacher. David continued to work during the marriage, earned a steady income, and furthered himself in the IT industry, until when he was laid off for approximately four months between July and October 2009. The parties were fifty years old when they were divorced.
The judge conducted a three-day trial, issued an extensive written opinion, and entered the JOD on December 15, 2009. The judge imputed income to David in the amount of $145,000 per year and ordered David to pay permanent alimony, child support, private school expenses, and counsel fees. The judge awarded the parties joint legal custody of the children, entered a parenting-time schedule, and ordered equitable distribution of certain marital assets and debts.
On appeal, David argues that the judge erred by (1) awarding permanent alimony to Lori of $47,500 per year; (2) awarding child support of $202 per week; (3) ordering David to maintain life insurance of $750,000; (4) awarding equitable distribution of certain marital assets and debts; (5) awarding parenting time to Lori on every Christmas Eve and to David on every Christmas day; (6) requiring David to pay future private Catholic school expenses for the parties' children through the eighth grade; and (7) awarding counsel fees to Lori in the amount of $20,500.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, due to the family courts' special jurisdiction and expertise in such matters, we defer to a family court's fact-finding. Id. at 413. We grant substantial deference to a trial court's findings of fact, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).
I We begin by addressing David's contention that the trial judge erred by awarding Lori permanent alimony. He argues that limited duration alimony is more appropriate because of his age and Lori's ability to support herself. In calculating alimony, he contends that the judge imputed income to the parties erroneously.
To vacate a trial court's finding concerning alimony, we must conclude: that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole. [Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).]
See also Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005). "[T]he goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000).
As we explained in Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000):
In determining whether to award limited duration alimony, a trial judge must consider the same statutory factors considered in any application for permanent alimony, tempered only by the limited duration of the marriage. All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded.
"There is no bright line that divides the duration of a marriage that warrants an award of permanent alimony from the duration of a marriage that is too brief for an award of permanent alimony. Duration is one factor relevant to the determination whether permanent alimony is appropriate." Gordon v. Rozenwald, 380 N.J. Super. 55, 75 (App. Div. 2005).
In awarding permanent alimony, the trial court explained that:
During the marriage [David] was the major income provider throughout their approximate eleven and one-half year marriage. . . . From the financial evidence submitted at trial, the parties enjoyed a middle to upper middle class lifestyle . . . . The court finds [Lori's] testimonial and documentary evidence more credible as to the marital standard of living. [Lori] is entitled to share in the economic reward reached as a result of the parties' combined efforts inside and outside the home and that standard of living is as much a part of [Lori's] efforts as [David's] . . . .
. . . [Lori] failed to produce any credible evidence of the need for 'reeducation' since she has continued to be employed in the field of her education and work history. Moreover, [Lori] did not produce credible evidence of 're-education' expenses. [Lori] testified she was a substitute teacher and thought of becoming a teacher and change careers. [Lori] produced no credible evidence that [David] should share the costs of such career change.
However, based on [Lori's] needs and the plaintiff's ability to pay, the parties' and their children's age and health, the approximate twelve year marriage, the parties' history of financial and non-financial contributions to the marriage with [Lori] providing the homemaking and acknowledged primary home childcare responsibility for nine of the twelve years of the marriage, the court finds [Lori] is entitled to permanent alimony. . . . [Lori] will not be able to achieve the marital standard of living with her earned income and her alimony award.
The disparity of the parties' incomes is likely to increase over time. It is undisputed that [David] has the employment history to earn approximately $160,000 annually while [Lori's] earning ability demonstrates she may achieve business gross income over $100,000 or full time employment earning mean gross wage of $46,750. Since [David's] annual increases will be based mostly on bonus income, it is clear that [David] will increasingly out-earn [Lori]. Although [David] was the primary wage earner, it is clear that [Lori] made substantial contributions to [David's] earning power and the acquisition and preservation of the marital property as wife, mother, care provider and secondary wage earner. In addition, it is unlikely that [Lori] will ever be able to increase her earning capacity to enable her to support herself at the quality of the parties' economic life during the marriage. [David's] position on [his] 'needs' and his 'ability to pay' clearly is antithetical to the evidence presented during the trial . .
The court finds that [David] has a continuing obligation to support [Lori] in an effort to maintain her at a reasonable standard of living if the parties cannot meet the standard enjoyed during their marriage. It is clear that neither party, under the facts presented at trial, will be able to maintain the marital lifestyle.
However, [Lori] is not constrained to her current post-separation lifestyle resulting from the parties' separation and divorce.
We see no abuse of discretion by awarding permanent alimony. The judge considered the controlling legal principles and determined that permanent alimony is appropriate based on sufficient credible evidence present in the record.
We also see no merit to David's contention that the judge imputed income to him erroneously. When a spouse is not earning up to his or her true potential and capacity, then an imputation of income based upon that potential is appropriate. Caplan v. Caplan, 182 N.J. 250, 268 (2005). In imputing income to David, the judge explained that:
[David] acknowledged his earning capacity as demonstrated by his work history and tax returns. After the matrimonial hearing ended [David] informed the court he became full time employed . . . with an annual income of $120,000 with an eligible bonus of $25,000. Based on [David's] income ability to earn an income in his IT field as evidenced from his employment history, [David] clearly has the ability to earn an income of approximately $160,000 annually. [David] acknowledged in 2004 he made approximately $160,000 . . . .
. . . The court is satisfied that [David's] income level of $145,000 shall be imputed and used to determine his financial obligations.
Also lacking merit is David's argument that Lori "is capable of earning significant income in her chosen field," and thus more than $40,000 annual income should have been imputed to her. That conclusion is unsupported by the record because Lori has not worked full-time since 2000, and in recent years earned approximately $40,000. It would have been unreasonable for the trial court to impute to Lori the income she earned while single, working full-time with no children.
David also contends the judge failed to consider that Lori had an $80,000 trust available to her. Lori testified that her late father's will created a trust for each of his children, and to provide for "his grandchildren." Lori was named as the sole beneficiary in one of the trusts, but she was required to obtain permission from the trustees, two of her siblings, for distribution of monies. From our review of the record, there is no credible evidence that Lori had unfettered access to the discretionary trust.*fn2
While an inheritance is exempt from equitable distribution under N.J.S.A. 2A:34-23, income generated from an inheritance may be considered in determining the amount of an alimony award. Aronson v. Aronson, 245 N.J. Super. 354, 363 (App. Div. 1991). "So long as the spouse has the ability to tap the income source . . . whether he or she actually obtains the cash in hand is inconsequential." Id. at 364-65. A person's interest in a discretionary trust may not be considered in determining alimony or child support because there is no current right to the funds. Tannen v. Tannen, 416 N.J. Super. 248, 265-68, 273 (App. Div. 2010); see also In re Marriage of Rhinehart, 704 N.W. 2d 677, 680-81 (Iowa 2005) (Supreme Court of Iowa holding that where a beneficiary has an unvested interest in a ...