On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-000070-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued May 23, 2011
Before Judges Ashrafi and Kestin.
Defendant, Robert Nochenson, appeals from an order of the Family Part, entered eight years after a final judgment of divorce, granting the motion of plaintiff, Sharon Nochenson, for permanent alimony and also requiring that he pay $2,000 of her attorney's fees. We reverse and remand for a plenary hearing.
The parties were married in 1985 and divorced in 2002. In 2010, their two children were grown, and child support payments were consensually terminated. Robert is a forty-percent owner of a family business, Morris Industries, which employed Sharon during and after the marriage on a part-time basis.*fn1 In addition to salary, Sharon received substantial benefits from the business, including medical, disability, and life insurance, contributions to a 401K retirement account, a leased car, use of business credit cards, and a cell phone for her personal use.
Sharon's 2001 case information statement (CIS) at the time of the divorce litigation alleged her earned income was $19,603, Robert's was $124,986 for 1999, and the parties' had unearned income of $654,573. She claimed joint net annual income of $457,379 after income taxes.
At that time, Robert's father, who was the majority owner of Morris Industries, had excluded him from participation in the business. Robert was receiving substantial unearned income, however, including monthly payments from a family trust fund duplicating his prior salary. With the aid of their attorneys, the parties entered into a marital settlement agreement, which was incorporated into the final judgment of divorce. The agreement included the following paragraph 16 pertaining to alimony:
16. The Husband shall not be required to pay alimony to the Wife at this time. If at any time in the future the Wife is unable to work, or if she is involuntarily terminated from her position with Morris Industries, such will be considered a change of circumstances. The Wife may then petition the court for alimony, without the necessity of proving a change of circumstances, no matter what the then current law may be. However, the parties agree that for the Wife to petition the court for alimony under the aforesaid circumstances, the Husband must be capable of receiving a sum comparable to his current unearned income, through either earned or unearned sources of income.
The settlement agreement also provided substantial equitable distribution of property to Sharon, including the marital home and parts of other assets held by Robert alone. According to Robert, the value of Sharon's equitable distribution had risen to almost $2,000,000 by 2010. Sharon disputes that all her assets in 2010 were derived from equitable distribution, claiming that she received a substantial inheritance and that the children's college fund is also included in the assets shown in her current CIS. She contends that equitable distribution was not intended to eliminate her need for alimony.
Sometime after the divorce, Robert returned to active participation in Morris Industries. Apparently because of discord during the marriage and divorce proceedings, Morris Industries instructed Sharon in February 2005 not to come to the office. Robert claims she was required to work instead from home, but that she preferred to devote her time to tennis and other personal activities and did little work for the company. Morris Industries continued to pay her salary and benefits, however, which Sharon values at almost $59,000 per year.
Sharon eventually moved to North Carolina and obtained part-time employment. Some time later, Morris Industries notified Sharon that her employment, salary, and benefits would terminate at the end of the lease term on her car in June 2010. As that date approached, Sharon filed a motion in the Family Part for permanent alimony under the provisions of paragraph 16 of the settlement agreement previously quoted.
Robert opposed the motion claiming that Sharon moved because she wanted to be with a man who lived in North Carolina and to concentrate on her tennis activities. He asserted she was terminated from her position with Morris Industries because she made herself unavailable to provide services as an employee.
Robert also claimed Sharon has a business degree and is capable of obtaining lucrative employment independently. Sharon responded that she moved to North Carolina at a time when her work was not needed or desired at Morris Industries, and that she has never worked in her profession or as a full-time employee since her children were born. She also stated she lost her ...