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Mary L. Diemer v. Roy R. Diemer

June 9, 2011

MARY L. DIEMER, PLAINTIFF-APPELLANT,
v.
ROY R. DIEMER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-161-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 8, 2011

Before Judges Carchman, Graves and Waugh.

This appeal represents our second review of an on-going matrimonial dispute between plaintiff Mary Diemer and defendant Roy R. Diemer. In our earlier opinion, Diemer v. Diemer, No. A- 2875-02 (App. Div. March 5, 2004) (Diemer I), we reversed the trial court's denial of alimony to plaintiff and remanded for further consideration of that issue. We also reversed and remanded the portions of the order addressing child support for the parties' son Matt, and ordering the immediate sale of the marital home.

After extensive motion practice and hearings before various judges on these issues, plaintiff again appeals from both a May 22, 2008 amended dual judgment of divorce and two orders, dated July 9, 2004 and April 9, 2009, all issued following our remand. Specifically, she claims that the trial courts erred by: (1) denying her motion for alimony; (2) failing to require the payment of child support, and by ordering that any support should be paid directly to Matt rather than to plaintiff; (3) refusing to order defendant to contribute to the college and unreimbursed medical expenses incurred by the parties' daughter, Jessica; (4) denying her request for one-half of the value of timeshares that the couple purchased during the marriage; and (5) ordering that the marital residence be sold immediately. Finally, she urges that we assert original jurisdiction and decide the alimony issue.

We decline to exercise original jurisdiction; however, we agree that the trial judge erred as to alimony and child support. Accordingly, we reverse and remand as to those two issues. As to the remaining issues, we affirm.

I.

A.

We briefly set forth the procedural history of this matter following our decision in Diemer I.

After our remand, plaintiff moved for relief pending the remand hearing. Specifically, she sought $250 per week in temporary alimony, temporary child support for Matt and support for Jessica's college and other expenses. She also sought an order preventing defendant from selling the marital home and requiring him to pay all maintenance fees and late charge payments for the timeshares the couple had purchased during the marriage.

On July 9, 2004, the motion judge*fn1 entered an order denying the relief plaintiff sought, and requiring the immediate sale of the timeshares. The judge noted that the issues of alimony and child support for Matt would be addressed at the remand hearing, and that the issue of defendant's contribution towards Jessica's college expenses would require a subsequent hearing.

Remand hearings took place before a second judge in August 2007, and an amended dual judgment of divorce was issued on March 22, 2008. Specifically, the marital home was to be sold within thirty days and defendant's alimony obligation was terminated as of April 20, 2008. Further, "child support" payments previously made to plaintiff were terminated immediately, but defendant was ordered to pay $150 per week in support directly to Matt.

Plaintiff filed a notice of appeal from that order on July 7, 2008; however, plaintiff's counsel realized that the remand court had failed to address all of the remanded issues and sought a limited remand, which we granted.

A limited remand hearing took place on several dates in February and March 2009. On April 9, 2009, the third judge hearing the matter entered an order in which he declined to award child support for Jessica because she was "emancipated upon her graduation from school." Similarly, the judge denied plaintiff's request for reimbursement of Jessica's college and unreimbursed medical expenses. Finally, the judge denied plaintiff's request for damages related to the loss of the timeshares to foreclosure.

Plaintiff thereafter filed an amended notice of appeal, in which she appealed from the July 9, 2004, May 22, 2008 and April 9, 2009, orders and judgments.

B.

In Diemer I, we set forth the factual background related to the marriage and this dispute. We incorporate those facts by reference and do not repeat them here. See Diemer I, supra, No. A-2875-02 (slip op. at 2-14).

To better understand the nature of the remand hearing, we briefly set forth the basis for our decision in Diemer I. In Diemer I, we agreed with plaintiff that the trial court erred in denying her permanent or rehabilitative alimony. We noted that the trial court had relied on plaintiff having already obtained her Bachelor's degree, and imputed $26,000 to $30,000 in full-time wages to her on that basis. Moreover, the trial court concluded that plaintiff could have earned a starting salary of $40,000 per year once she obtained her Master's degree.

The trial court found that while defendant had "considerable seniority and job security" in his position at USPS, he had "no apparent chance of significant further advancement or promotion." His income ranged from $56,000 in 1998 to $59,000 in 2001, reflecting his "present income ability."

The trial court further concluded that through the support he paid, defendant had assisted plaintiff, during the pendency of the divorce, in obtaining her college degree. According to the judge, plaintiff had "in effect received rehabilitative alimony during the pendency of the divorce by reason of defendant being the major financial support of the family while plaintiff has pursued further education towards her chosen new career goal."

The trial court found that plaintiff could have earned $15,000 to $20,000 per year during the last five years given her education at Berkley and prior work experience, rather than the $5,500 she actually earned in 2001. In short, the trial court found that plaintiff received "pendente lite rehabilitative alimony" during the pendency of divorce, in that defendant supported the entire family on his income until plaintiff began working in 1995.

Moreover, the court found that plaintiff's income would approach, and could eventually exceed, defendant's, and that plaintiff had received approximately $100,000 in an inheritance. The trial court concluded that "plaintiff's present income and projected income ability should be sufficient to support one person at, or near, the standard of living enjoyed during the marriage, and that she is not a candidate for further alimony or permanent alimony."

We concluded in Diemer I that the trial court erred for several reasons. First, the trial court erred in finding that defendant "shouldered all of the family's expenses during the entire pendency of the divorce," because plaintiff worked part-time between 1997 and 1999. Diemer I, supra, A-2875-02 (slip op. at 20). Moreover, defendant did not pay all of the obligations required of him, and some of the support was on behalf of the children and not just for plaintiff. We did "not believe that defendant's 'support' qualifie[d] as rehabilitative alimony." Id. at 20-21. More importantly, plaintiff had not earned a Bachelor's degree from Sussex County Community College (SCCC), as the trial court had found, but had earned only an Associate's degree. Id. at 21.

In addition, there was no evidence that defendant could not seek a more senior position at USPS, and plaintiff had used her life insurance proceeds and inheritance to meet house expenses for her and her children; she did not have $100,000 available as found by the trial court. Ibid. Given that: (1) the marriage was long-term and plaintiff was discouraged from working by defendant; (2) plaintiff was not prepared to enter the job market with her "twenty-year old degree [from Berkeley] that had little relevancy or value today"; and that (3) plaintiff's future projected income with a graduate degree "was entirely irrelevant at the time of trial," we could "not agree that term or rehabilitative alimony was unauthorized in this case." We reversed and remanded "for reconsideration of alimony and an assessment of the monies needed by plaintiff so that she [could] complete her Bachelor's degree and thereafter re-enter the work force." Id. at 22.

We also reversed the trial court's decision regarding child support and noted the trial court had imputed $27,500 in income to plaintiff, based on its mistaken belief that she had already earned a Bachelor's degree. Moreover, additional income should have been imputed to defendant, who had failed to work extra hours, as he had done during the marriage, after he left the marital residence. We remanded for a reassessment of defendant's child support obligation to Matt in light of plaintiff's and defendant's actual present circumstances and earning power. Id. at 24-25.

We also concluded that the trial court erred in ordering the immediate sale of the marital home. The trial court ordered that sale because the real estate market in New Jersey was so strong at that time, and because it wanted to protect the parties' equity in the home; however, we disagreed because the trial court failed to consider "the parties' wishes, Matthew's needs and the significant monies owed by [defendant] to plaintiff." Id. at 31-32. Notably, defendant indicated at trial that he did not want the home sold until Matt had graduated from college. Moreover, it was unlikely that plaintiff could find comparable housing for herself and her children given her then-current circumstances. Given the money owed by defendant to plaintiff, it was "possible that plaintiff could be awarded defendant's share of the equity in the house in lieu of other payment." Id. at 32.

II.

At the first remand hearing in August 2007, plaintiff reiterated information related to defendant's earnings and described the parties' lifestyle noting that the parties purchased their home, invested in time shares and took multiple vacations. Although the lifestyle was by no means extravagant, they shared a middle class lifestyle commensurate with their earnings.

Plaintiff also reiterated her post-marital education, issues and facts that we had discussed in Diemer I. Plaintiff's goal was to obtain a position as a speech pathologist for a school district. As of the hearing, she had applied for licenses in New York and New Jersey that would allow her to do so. She anticipated that that position would pay her approximately $50,000 per year. As a result, plaintiff chose not to apply for positions as a teacher after graduating with her Bachelor's degree in 2004 because that would have taken her off of her career path. Rather, plaintiff began work on her Master's degree and took an internship in 2006.

In May 2007, plaintiff began working in a temporary position as a speech teacher for an Orange County, New York school. Her contract paid her $7,100, less the time she missed to attend the remand hearing. As of the hearing, plaintiff had year-to-date earnings in 2007 of $6,133.60 from this teaching position.

Defendant continued to work for the USPS. The "State" wages reported on defendant's tax returns, rather than his "Federal" wages, which the parties relied upon during the hearing, were $59,251.69 in 2001, $63,528.93 in 2002, $60,428.71 in 2003, $68,434.00 in 2004, $78,192.76 in 2005 and $82,484.21 in 2006. Defendant conceded that although promotions were available and he was qualified, he never applied for any, because he was told by his superiors that doing so would be a "waste of [time]."

Defendant planned to retire once the marital home was sold, because he would have had thirty-eight years of service with the USPS as of September 6, 2007. He anticipated receiving a $4,023 monthly pension with an annuity upon his retirement.

Plaintiff lived in the marital home as of the first remand hearing. She acknowledged that Jessica had moved out, Matt was in college and he had taken an internship the past summer. Nevertheless, she wanted to keep the marital home until Matt graduated from college, so that he could maintain state aid and to store all of his belongings. Defendant was willing to let plaintiff buy out his interest; otherwise, he wanted the home sold immediately.

Plaintiff filed a Case Information Statement (CIS) on June 5, 2007. She described her income from 2006 and 2007 and listed current shelter expenses as $1,515.92 per month, transportation costs of $790 per month (which would increase by $350 when she purchased another car), and current personal expenses of $1,901 per month (which would increase by $570 per month when her student loan payments commenced). Her current total monthly expenses were $4,426.92.

Obviously, plaintiff's living expenses exceeded her income. She testified that she lived in part on the life insurance and inheritance proceeds discussed above after her mother and stepfather died. She also used that money for litigation expenses of $5,200, and to bring the mortgage on the marital home current. Plaintiff also lived on the $45,000 share she received from the proceeds of the sale of the vacant lot.

In addition, defendant paid one-half of the two mortgages on the marital residence (approximately $600 per month), health insurance for the children of approximately $35 per month, and $195 in weekly support for Matt. Defendant also paid $440 per month, approximately $10,000 in total, to pay off marital credit card debt. According to defendant, as of the time of the hearing, he was living rent-free with his girlfriend in Hamburg. The couple split the other household expenses. Defendant termed that a temporary situation, as he planned to move to his own house once he retired.

Defendant submitted a CIS, based on his expenses living in the apartment, on August 31, 2005. That CIS reflected monthly shelter expenses of $1,146.44, including $525 in rent, $385.21 in monthly transportation costs, and $1,152.83 in monthly personal expenses. Defendant's total expenses were $2,684.48 per month. Defendant noted that his income in 2004 exceeded $68,000. Defendant listed as assets his interest in the marital home, the timeshares, stock he valued at approximately $21,000 and his $123,019 of interest in his pension plan. His liabilities included the mortgage on the marital home, $7,800 in credit card debt, and $43,000 in legal fees.

Defendant conceded that before the divorce, he contributed only $650 toward his TSP, his retirement plan. In 2004, however, he contributed $8,700; the next year he contributed $10,000 and in 2006 he contributed $15,000. The balance in the account was $82,156.56 as of August 29,2007, and as of the hearing he was contributing as much as $1000 every other week. Defendant claimed that ...


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