July 14, 2011
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-000941-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 8, 2011
Before Judges Baxter and Koblitz.
Plaintiff R.S.V. appeals from various aspects of the July 27, 2010 amended final judgment of divorce entered after a full trial. He argues that the court erred in its decision regarding: (1) the $49,400 per year of permanent alimony awarded to defendant C.V.; (2) the lack of child support ordered from C.V.; (3) the order that he pay 75% of the cost of the parenting coordinator, and the authority granted to the parenting coordinator; and (4) the award of $10,000 in counsel fees to C.V. After reviewing the record in light of the contentions advanced on appeal, we affirm all of the trial court's decisions except with regard to child support and the division of the parenting coordinator's fee. We remand to the court for a reconsideration of the division of the parenting coordinator's fees and a calculation of the appropriate child support under all of the circumstances presented here.
Both college graduates in their early forties, the parties were divorced after more than fourteen years of marriage and the birth of five children. C.V. stopped working in February 1996, when the parties' first child was born. She did not start working again until January 2009, after they separated. She has never earned more than eleven dollars per hour and is currently working only six hours per week earning eight dollars per hour. Shortly after R.S.V. filed the divorce complaint, she was hospitalized due to a suicide attempt because she "realized that [she] wasn't going to have a place to live, . . . wasn't going to have money, [and] wasn't going to have a family anymore."
She had been previously hospitalized during the marriage three times,
for approximately one week each time, over the course of six weeks in
2006. She has also been prescribed various psychiatric medications
over the years. She suffers from depression caused, she said, by
having "too many children, too quickly," and getting divorced, which
was against her religious beliefs. C.V. testified at trial that she
was under the care of a psychiatrist and a psychotherapist.*fn1
She said that she could not afford prescribed medications at
times in the past because she had no health insurance.
R.S.V. received a bachelor's degree in economics from Vanderbilt University in 1989. After graduation, he went into the army as a lieutenant, joining the Army Reserves after six months of active duty. After seven years, he left the Reserves with the rank of captain. Thereafter, he and his father formed V. Builders, L.L.C. (VB), with each owning fifty percent of the company. R.S.V. received no formal construction training prior to joining his father in the family business.
R.S.V. and his father built speculation homes. R.S.V. testified that his role in the business "was literally to build the homes. . . . [He] had absolutely no involvement whatsoever with the office work, or the administration, or the disbursement of fun[d]s, or for that matter even consummating deals . . . on either buying property or selling houses. [His] father took care of all of that." During the latter part of the marriage, before R.S.V.'s father died, both parties agree that they spent approximately $180,000 per year after taxes to maintain their marital lifestyle.
In November 2008, R.S.V.'s father passed away. In early 2010, VB was dissolved. The company maintained a line of credit with a balance of approximately $220,000 until shortly before R.S.V.'s father died. R.S.V. testified that he "discovered" the credit "maybe two or three weeks before . . . [his] father's death," despite acknowledging that both he and his father personally guaranteed the line of credit. R.S.V.'s mother settled with the bank and paid the balance.
After his father's passing, R.S.V. finished his last project for VB, building a home, and then worked with his cousin as a contractor doing odd jobs "on a will call basis" for approximately three to four months. When he worked with his cousin, R.S.V. earned $500 to $600 per day.
R.S.V. testified that he "took out an advertisement" in the local newspapers, joined "an online service called Bit Clerk, which matche[d] contractors with job leads," and engaged in "personal networking." R.S.V. also submitted his resume to one of his neighbors, a headhunter.
In September 2009, the court entered a pendente lite order, requiring R.S.V. to obtain employment within thirty days. In February 2010, R.S.V. obtained a full-time position at his brother-in-law's company, Wayne Tile, as a warehouseman. At trial, R.S.V. stated he received an hourly wage of $18, and approximately $37,250 annually.
C.V. produced Occupational Employment and Wage Statistics (Statistics) for full-time managers in construction and general operations managers. The mean average salary for those occupations was $127,250 and $161,000, respectively.
After the parties separated, R.S.V. moved in with his mother. The children moved into that residence in May 2009, after C.V. was hospitalized. The paternal grandmother cares for the children during the day when they are not in school and R.S.V. is at work. C.V. transports the children to and from school and sees them pursuant to an agreed-upon parenting time schedule. As of trial, R.S.V.'s mother was supplementing his income, including paying for the children's food expenses and the eldest child's Catholic school tuition.
After the separation, C.V. moved in with her friend for approximately three months and received food stamps from July through December 2009. C.V. then moved to a rental home. The court ordered R.S.V. to pay C.V. pendente lite support of $250 per week in temporary alimony and an additional approximately $1625 per month for C.V.'s rent.
In the final judgment of divorce, the court imputed $100,000 in income to R.S.V., ordered him to pay C.V. $950 per week in permanent alimony, and did not require C.V. to pay any child support for the five children.
C.V. testified that her parents lent her money to pay her attorney approximately $20,000 in fees. She owed approximately $15,000 in addition. R.S.V. indicated that he had paid his attorney more than $30,000 and still owed approximately $25,000. The court awarded C.V. $10,000 in counsel fees based upon the "imbalance with regard to [the] financial positions of the parties," finding that neither party acted in bad faith.
Custody of the five children was not an issue at trial. In the amended final judgment of divorce, the court allocated the costs for the agreed-upon parenting coordinator; seventy-five percent to R.S.V., twenty-five percent to C.V. The order further specified, as agreed by the parties, that the coordinator had "the authority to make recommendations concerning the children to the [c]court." The court added the words "for resolution" after the following agreed-upon language:
"All disputes shall be presented to the [p]arenting [c]oordinator."
R.S.V. raises the following issues on appeal:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN AWARDING DEFENDANT PERMANENT ALIMONY IN THE AMOUNT OF $950.00 PER WEEK
A. The Actual Need And Ability Of The Parties To Pay
1. The Trial Court Failed to Assess Defendant's Actual Need
2. The Trial Court Improperly Analyzed the Parties' Ability To Pay
B. The Trial Court Incorrectly Applied the Trial Record To The Other Statutory Factors In Making Its Alimony Determination
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT AWARDING CHILD SUPPORT IN THIS MATTER
A. The Trial Court Failed To Properly Apply R. 5:6A (Appendix IX-A) Governing The Use Of The Child Support Guidelines
B. The Trial Court Failed To Provide Adequate Findings With Regard To The Determination Of Child Support In Violation of R. 1:7-4(a), N.J.S.A. 2A:34-23 and N.J.S.A. 9:17-53
III. THE TRIAL COURT ERRED IN ALLOCATING THE COST OF THE PARENTING COORDINATOR, DR. HRYSSO FERNBACH AND UNCOVERED HEALTH RELATED EXPENSES FOR THE CHILDREN, SEVENTY-FIVE PERCENT (75%) PLAINTIFF AND TWENTY-FIVE PERCENT (25%) DEFENDANT
IV. THE TRIAL COURT ERRED IN AWARDING DEFENDANT COUNSEL FEES IN THIS MATTER PURSUANT TO N.J.S.A. 2A:34-23; R. 4:42-9 AND R. 5:3-5(C)
V. THE TRIAL COURT ERRED IN ORDERING THAT THE PARENTING CO[O]RDINATOR SHALL HAVE THE AUTHORITY TO RESOLVE PARENTING DISPUTES
R.S.V. argues that the alimony award is too high and should not have been permanent in nature. He also argues that the court should not have imputed $100,000 in income to him and should have imputed income to C.V.
"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). Likewise, the trial court's credibility determinations are entitled to deference because "it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988). "A trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004).
"To vacate a trial court's finding concerning alimony," the appellate court 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).]
"[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). In divorce actions, courts may award "permanent alimony[,] rehabilitative alimony[,] limited duration alimony or reimbursement alimony to either party" so long as the factors enumerated in the alimony statute are considered. N.J.S.A. 2A:34-23(b).
"Limited duration alimony, like permanent alimony, is based primarily on the marital enterprise. It is distinguishable from permanent alimony because the length of the marriage does not warrant permanent support . . . ." Gordon v. Rozenwald, 380 N.J. Super. 55, 66 (App. Div. 2005). Moreover, "to avoid misuse of limited duration alimony to the disadvantage of supported spouses divorcing after a long-term marriage, the law prohibits award of limited duration alimony 'as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded.'" Ibid. (quoting N.J.S.A. 2A:34-23(c)).
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.
Nevertheless, "[t]here 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, supra, 380 N.J. Super. at 75 n.4.
In awarding permanent alimony, the court made specific fact-findings with respect to each of the factors enumerated at N.J.S.A. 2A:34-23(b). We affirm these findings substantially for the reasons stated in the court's well-reasoned twenty-five-page written opinion. Although R.S.V. argues that his marriage was too short to justify permanent alimony, we have approved the award of permanent alimony in marriages of shorter length. See, e.g., Robertson v. Robertson, 381 N.J. Super. 199, 207-08 (App. Div. 2005) (permanent alimony award affirmed in twelve-year marriage); Hughes v. Hughes, 311 N.J. Super. 15, 33-34 (App. Div. 1998) (rehabilitative alimony award reversed in ten-year marriage; "[o]n remand, the trial judge should reconsider [the alimony] issue with a view that [the wife] is to receive permanent alimony, but perhaps at some reduced rate to reflect a marriage of this medium length").
Although usually the dependent spouse has primary residential custody of the children, parental responsibility for the children is only one factor in determining alimony. N.J.S.A. 2A:34-23b(7). The court found that C.V.'s psychological difficulties contributed to the pendente lite custody arrangement agreed upon by the parties as well as C.V.'s inability to work full time or earn more money. The court decided that custody should remain as it was prior to trial.
The court determined that R.S.V. "should be imputed to have an income of $100,000.00 per year based upon his work history, work ability and talent in the construction business." This imputation of income was consistent with the evidence presented as well as the pertinent case law.
Imputation of income is appropriate for support purposes when a party is, without just cause, intentionally and voluntarily underemployed or unemployed. Caplan v. Caplan, 182 N.J. 250, 268 (2005) (imputing income in determining child support award); see also Miller v. Miller, 160 N.J. 408, 424, (1999) (imputing income in determining alimony award). Thus, "[w]hen a spouse is not earning to his or her true potential and capacity then an imputation of income based upon that potential is appropriate." Stiffler v. Stiffler, 304 N.J. Super. 96, 101 (Ch. Div. 1997); see also Mahoney v. Mahoney, 91 N.J. 488, 505 (1982) (imputed figure "must take into account the supporting spouse's ability to pay; earning capacity is certainly relevant to this determination"). As we further explained in Storey, supra, 373 N.J. Super. at 474-75:
Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability. Rarely is there evidence that an obligor turned down an offer of employment at a fixed amount, and proof of that or similar certainty is not a prerequisite to imputation. A trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence. Competent evidence includes data on prevailing wages from sources subject to judicial notice. [Ibid. (internal citations omitted).]
The court in this matter considered statistics on prevailing income for construction managers and determined that R.S.V. "did very little in an effort to find a job that would pay him monies rightfully due someone with his background and experience." After being ordered to obtain employment, R.S.V. began working for a relative for approximately $37,000 per year. His mother contributes to his support and that of the children. The court did not abuse its discretion under these circumstances in imputing income to R.S.V. and not to C.V. After imputing $100,000 to R.S.V., the court awarded $950 per week in alimony to C.V., finding that she earned approximately forty-eight dollars per week at her part-time employment. As the family lifestyle was $180,000 per year and R.S.V. was subsidized by his mother, thereby reducing his needs, this award of alimony was not an abuse of discretion.
The court did not award child support to R.S.V., determining that:
Defendant does not have the ability to make any contribution toward child support of the five children of the marriage. While the [d]efendant may be earning $8.00 per hour it is barely sufficient to meet her own needs.
The [p]laintiff on the other hand with the assistance of his mother has been able to take care of the children for quite some time and will have the ability to continue to do so.
The court did not expressly indicate why it thought C.V., with an annual income, including alimony, of nearly $50,000, was unable to pay any amount of child support. We recognize that "[a]n award of [child] support is within the discretion of the trial court." Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999). The amount "will not be disturbed unless it is manifestly unreasonable, arbitrary or clearly contrary to reason or to the evidence, or the result of whim or caprice." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976).
However, our courts also recognize that "a parent is obliged to contribute to the basic support needs of [a] . . . child to the extent of the parent's financial ability . . . ." Martinetti v. Hickman, 261 N.J. Super. 508, 513 (App. Div. 1993). Rule 5:6A "require[s] that the trial court apply the child support guidelines . . . when considering child support[.]" Caplan, supra, 182 N.J. at 264. "The trial court may only modify or disregard the [G]uidelines if good cause is established for doing so." Larrison v. Larrison, 392 N.J. Super. 1, 23 (App. Div. 2007).
The court must also "make specific findings that would explain why the Guidelines were disregarded." Winterberg v. Lupo, 300 N.J. Super. 125, 132 (App. Div. 1997); see also R. 5:6A. The factors enumerated in N.J.S.A. 2A:34-23(a) must be considered and applied. Winterberg, supra, 300 N.J. Super. at 132.
In this matter, the parents receive approximately the same income, given that R.S.V. is obligated to pay approximately half of his imputed income to C.V. as alimony. The Guidelines anticipate that a non-custodial parent receiving a weekly net income of $750, which amounts to $39,000 of annual net income, would pay approximately one-third in child support for five children if the other parent receives an equal net income. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2505 (2011). In this matter, factors in addition to the Guidelines, such as the needs of the children given the financial support of the grandmother, should be considered by the court before setting a child support amount. However, awarding no child support is contrary to the policy of this state and the intent of the Guidelines, which anticipates at least a nominal amount in virtually every circumstance. See Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2448-49 (2011). The section of the Guidelines entitled "Extreme Parental Income Situations" states, in relevant part: "In all cases, a fixed dollar amount shall be ordered to establish the principle of the parent's support obligation and to provide a basis for an upward modification should the obligor's income increase in the future." Ibid. This section of the Guidelines provides that even where parental income is extremely low, the nominal support amount should be at least five dollars per week. Id. at 2449. We remand this matter to the trial court to fix an appropriate child support number. The court may well find good cause to modify the Guidelines' support calculation in light of the grandmother's voluntary support that significantly diminishes the needs of the children.
The trial court assessed parenting coordinator fees, requiring R.S.V. to pay seventy-five percent and C.V. to pay twenty-five percent. This calculation is not explained in the court's extensive opinion. Rule 1:7-4(a) requires the court to "find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right . . ." "Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443, (App. Div. 1990). "We ordinarily remand to the trial court to make findings of fact if the trial court failed to do so." Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008). Given that we are unsure of why the court assessed the fees in this proportion, we reverse and remand for reconsideration of the fee division, with reasons for the decision set forth on the record.
R.S.V. argues that the court improperly delegated ultimate decision-making authority to the parenting coordinator by adding the words in the amended final judgment "for resolution" after the agreed-upon language, "[a]ll disputes shall be presented to the [p]arenting [c]oordinator." We do not find those added words to mean that the parenting coordinator's suggested resolutions would be binding on the parties, especially in light of another agreed-upon provision in the judgment stating that "[t]he [p]arenting [c]oordinator shall have the authority to make recommendations concerning the children to the [c]court." The parties agreed that a parenting coordinator should not be given ultimate decision-making authority. See Segal v. Lynch, 417 N.J. Super. 627, 635-37 (App. Div. 2011) (citing "Parenting Coordinator Pilot Program Implementation Guidelines" approved by New Jersey Supreme Court in 2007, which prohibit the coordinator from modifying court orders unless all parties agree and enter into a consent order). We do not issue advisory opinions. If an issue arises that implicates the language added by the court, either party may raise the issue in the context of the particular factual setting. See DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (noting that our courts refrain from rendering advisory opinions or exercising jurisdiction in the abstract); see also G.H. v. Twp. of Galloway, 199 N.J. 135, 136 (2009) (instructing that courts should not "answer abstract questions or give advisory opinions").
R.S.V. argues that the court should not have awarded C.V. $10,000 in counsel fees. "An award of counsel fees is only disturbed upon a clear abuse of discretion." City of Englewood v. Exxon Mobil Corp., 406 N.J. Super. 110, 123 (App. Div.), certif. denied, 199 N.J. 515 (2009); see also Strahan, supra, 402 N.J. Super. at 317 (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Courts should consider the following factors in an award of fees: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
[R. 5:3-5(c); see also N.J.S.A. 2A:34-23; R. 4:42-9(a)(1); Williams v. Williams, 59 N.J. 229, 233 (1971).]
The trial court correctly cited all governing legal principles. In awarding C.V. counsel fees, the court analyzed the factors enumerated at Rule 5:3-5(c) and stated:
Clearly there is no question that there is an imbalance with regard to financial positions of the parties. Defendant having basically no substantial income and Plaintiff having employment even though this Court did impute income to him for the reasons stated above.
At the present time the Defendant does not have the ability to pay counsel fees on her own and apparently has borrowed substantial monies from her parents to pay some money on account to her attorney.
This Court does not believe that either party acted in bad faith with regard to this litigation.
Plaintiff . . . indicates through his attorney that he has paid in excess of $30,000.00 of fees to date and that there is an approximate balance of $25,000.00 due to his attorney.
No previous award of counsel fees w[as] entered by way of pendent[e] lite relief.
The trial court properly exercised its discretion in awarding counsel fees, and we see no reason to disturb the award.
Affirmed in part; reversed and remanded in part.