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Cheryl Bogdan v. Joseph Bogdan

May 10, 2011

CHERYL BOGDAN, PLAINTIFF-RESPONDENT,
v.
JOSEPH BOGDAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1261-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 13, 2011

Before Judges Axelrad, Lihotz, and J. N. Harris.

Defendant Joseph Bogdan appeals from the June 26, 2009 dual final judgment of divorce that awarded plaintiff Cheryl Bogdan alimony, child support, and equitable distribution. Because we find that the Family Part accurately applied the appropriate law to amply-supported facts, and exercised conscientious discretion overall, we affirm.

I.

A.

The parties were married on August 25, 1990. Two daughters, now thirteen and eighteen-years old, were born of their union. The parties separated in June 2007, but continued to reside in the same municipality.

Both parties earned bachelor's degrees in accounting from Fairleigh Dickinson University. Mrs. Bogdan graduated in 1988, and thereafter was hired to perform bookkeeping and clerical services for the New Jersey Sports and Exposition Authority (the NJSEA). She attempted the CPA examination once, but did not pass any of its component parts. In her first full year of post-college employment, she earned $22,440.

Mrs. Bogdan left her employment with the NJSEA in October 1992, due to pregnancy complications with her first child. According to Mrs. Bogdan's social security statement, she earned $25,954 in 1992. After the child was born in 1993, the parties decided that Mrs. Bogdan would be a stay-at-home mother for the foreseeable future, which lasted approximately thirteen years.

Mrs. Bogdan reentered the workforce in 2006, when she earned approximately $12,000 as a teacher's aide at a parochial school. Working full-time at the school thereafter, Mrs. Bogdan earned $14,200 and $17,204 in 2007 and 2008 respectively. For the 2008-2009 school year, Mrs. Bogdan's salary was $17,510.

Mrs. Bogdan testified that she intended to attend Felician College to earn a master's degree in education and teaching in order to transition from teacher's aide to a teacher. She estimated that the advanced degree would take approximately two years to complete and cost $30,000. She further estimated that she would be able to earn approximately $40,000 per year as an entry-level public school teacher after earning her degree.

During trial, Mr. Bogdan presented occupational employment statistical data to show that his wife was underemployed and capable of earning a much higher income -- approximately $70,000 -- because of her accounting degree. Mrs. Bogdan countered with data suggesting that the annual salary for a job similar to the one she left in 1993 was approximately $30,000. However, she testified that she did not feel she would be capable of earning even that salary because she had been out of the field for so long and did not have knowledge of the current accounting programs or computer skills.

The parties purchased a four-bedroom residence in Wallington in May 1995, which was underwritten with a purchase money mortgage of $57,000 from Spencer Savings Bank. At the time of trial, the property was not encumbered with any mortgages. In June 1995, the parties borrowed $40,000 from Mr. Bogdan's parents and an additional $50,000 from Mr. Bogdan's aunt. Both loans were memorialized by written promissory notes payable on demand, with interest at six percent per year. In similar fashion, in October 1996, the parties borrowed an additional $40,000 from Mr. Bogdan's aunt at an interest rate of five percent per year. None of these loans was secured by a mortgage. Several years later, in February 2006, the parties borrowed $50,000 from Mr. Bogdan's parents.

According to Mr. Bogdan, who aggregated all of the family indebtedness, the net amount outstanding (including accrued interest) on all of the unpaid loans, as of June 2009, was $215,538.*fn1 Mrs. Bogdan testified that all of the loans had been paid in full.

B.

In December 2007, Mrs. Bogdan filed a complaint for divorce, alleging irreconcilable differences. Mr. Bogdan filed an answer and reciprocal counterclaim on January 15, 2008.

Following discovery, a discontinuous thirteen-day bench trial commenced on January 26, 2009, which lasted for several months. On June 25, 2009, Judge Edward A. Jerejian rendered an oral decision on the record that addressed all of the contested issues.

At the outset of his discussion of alimony and support, Judge Jerejian recognized his obligation to consider the factors articulated in N.J.S.A. 2A:34-23(b). He first found Mrs. Bogdan had a need for support, and Mr. Bogdan had the ability to pay, as his average annual gross salary (including bonuses) for the three years up to the filing of the complaint was $202,000. In taking into account the age and health of the parties, the court found that although Mrs. Bogdan suffered from diabetes and was insulin dependent, she and Mr. Bogdan -- forty-four and forty-three years old respectively -- were both in "relatively good health."

Citing decisional law*fn2 for the proposition that one of the goals of alimony is to "assist the supported spouse in achieving a lifestyle that [is] reasonably comparable to the one enjoyed while living with the supported spouse," the judge embarked upon an analysis of the parties' marital lifestyle. He found the parties' socio-economic status was "one of middle class, the upper middle class," and noted that they had put aside a good deal of money towards savings and had little debt, the children had always attended parochial schools, the parties had purchased a second home, and had also vacationed in places such as Florida and California. Addressing the family's division of labor, the judge found that the parties had a "traditional conservative approach to raising children" where Mrs. Bogdan worked hard while staying home and Mr. Bogdan similarly strived as he advanced his career.

In terms of earning capacity, the judge found that even though the parties had earned the same degree from the same university, Mr. Bogdan's earning capacity had "steadily risen" while Mrs. Bogdan had "virtually no career whatsoever." The judge found that it was "unrealistic" to argue that Mrs. Bogdan could earn $70,000 as soon as she reentered the workforce as an accountant, particularly given how long she had been out of the field and not having the modern skills necessary to do this specialized work. While some statistics were presented with regards to Mrs. Bogdan's earning capacity, the judge noted the absence of expert testimony on her ability to actually re-enter the workforce as an accountant. Also, it was unclear if Mrs. Bogdan would actually be able to successfully return to school for her teaching degree, and then obtain a better-paying teaching position. Based upon his analysis, the judge concluded that there was a "great disparity in the earning capacity, vocational skills[,] and the employability of the parties." In discussing the projected time and expense necessary for Mrs. Bogdan to find appropriate employment, the judge found that regardless of whether she obtained a teaching certification or retrained to become certified as an accountant, considerable time and effort would be expended.

In determining the type of alimony to be awarded, Judge Jerejian held that key factors affecting whether alimony would be permanent or of limited duration are the length of the marriage and economic dependency. Here, finding the marriage was a long-term marriage of seventeen-and-one-half years, and Mrs. Bogdan of limited economic potential, the judge decided it would be "unjust" to award rehabilitative ...


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