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Mark S. Ruderman v. Lois Ruderman

July 14, 2011

MARK S. RUDERMAN, PLAINTIFF-RESPONDENT,
v.
LOIS RUDERMAN, DEFENDANT-APPELLANT.
MARK S. RUDERMAN, PLAINTIFF-APPELLANT,
v.
LOIS RUDERMAN, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Somerset County, Docket No. FM-18-458-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 8, 2010

Before Judges Cuff, Fisher and Sapp-Peterson.

In these appeals calendared back-to-back,*fn1 we review challenges by defendant to certain terms of a judgment of divorce (JOD) entered following a trial and by plaintiff to a post-judgment order denying his request for reimbursement of various expenses. We affirm the post-judgment order, affirm in part and reverse in part the JOD, and remand for further proceedings consistent with this opinion.

Mark S. Ruderman, plaintiff, and Lois Ruderman, defendant, married on August 22, 1982, and separated on July 26, 2006. Plaintiff filed a complaint for divorce on November 20, 2006. The trial proceeded over five days between March 31, 2008, and July 16, 2008. On October 6, 2008, the trial judge issued a letter opinion, and entered a JOD on November 8, 2008.

The JOD ordered plaintiff to pay $80,000 annually to defendant in alimony, effective October 6, 2008. In arriving at this figure, the trial judge found that defendant required $120,000 annually to maintain the marital lifestyle. He imputed $40,000 annually in earned income to defendant. Plaintiff is also obligated to pay child support of $1000 monthly for the youngest of the two unemancipated children.

Defendant retained the marital home valued at $1,640,000 and plaintiff received a credit of 50% of its value. The house is not encumbered by a mortgage. Defendant is responsible for all costs associated with the house. Plaintiff must also credit defendant with 50% of the value of a townhouse valued at $373,000 purchased by him following the parties' separation. The judge divided a money market fund valued at $878,976 equally. Defendant retained two ING annuities but plaintiff received a 50% credit of their value. Defendant also retained her account at Peapack-Gladstone Bank and another annuity, but plaintiff received a 50% credit of their values. The judge also valued defendant's interest in plaintiff's law firm at $200,000 and ordered plaintiff to pay defendant that sum.

Plaintiff received credit against the equitable distribution award for $75,000 advanced to defendant prior to entry of judgment. Plaintiff received a $3,516 credit for an annuity invaded by defendant and also ordered plaintiff to contribute $80,000 to defendant for her counsel fees. The judge set off the counsel fee obligation against the equitable distribution advance and annuity credit, thereby requiring plaintiff to pay $1,484 to defendant for counsel fees.

The judge directed the remaining marital property, including two investment properties, to be sold. The proceeds and any taxes due on the sale of these properties were to be shared equally. Finally, each party retained their respective reward miles. The judge also found that an account valued at $425,000 was exempt from equitable distribution, because plaintiff inherited the account from his father.

Defendant filed a motion for reconsideration in which she challenged the alimony and child support awards. Among other issues, she requested the trial judge to reconsider his ruling regarding use and control of the children's trust accounts, and equitable distribution credits to plaintiff. Defendant also requested the trial judge to compel plaintiff to pay past due expenses, pay new expenses as part of his pendente lite obligation, and immediately distribute her portion of a mutual fund account. She also asked the trial judge to address issues left undecided in his initial opinion. Plaintiff responded with a cross-motion for an award of counsel fees and costs incurred to respond to the motion.

In a written opinion, the trial judge denied defendant's motion in most respects and awarded plaintiff counsel fees in the amount of $2,700. The judge did, however, vacate a $50,000 credit to plaintiff because it constituted double-counting but denied relief on all other issues raised by defendant.

On appeal, defendant argues that the methodology employed by the trial judge led to an inadequate and inappropriate alimony award. Defendant urges that the trial judge erred in calculating the marital standard of living, should not have imputed $40,000 in earned income to her, should have awarded rehabilitative alimony, and failed to consider the tax consequences of the alimony award. Defendant also contends that the trial judge awarded an insufficient amount of child support for the youngest unemancipated child, should have awarded child support to the child attending college, and should have required plaintiff to pay college expenses from current income or other parental assets, rather than from the children's accounts. Defendant also argues that plaintiff should have been required to maintain life insurance to secure his alimony and child support obligations, and the equitable distribution award is inappropriate in certain instances and contrary to applicable law.

In his appeal, plaintiff urges that the court should have reimbursed him or credited him for the pendente lite expenses paid by him to defendant for October 2008. He also argues that the trial judge should have adjusted the equitable distribution award to reflect passive losses in certain marital assets. Finally, plaintiff argues that the trial judge should have reimbursed or credited him with $14,000 from the exempt account distributed to defendant.

I

Plaintiff is an attorney and the managing partner of a law firm known as Ruderman & Glickman, P.C. Plaintiff and defendant were fifty-three years of age at the time of trial. Defendant holds a bachelor's degree from Rutgers University and a master's degree form Adelphi University in speech pathology. She worked as a speech pathologist prior to the birth of the parties' oldest child in 1985. She has been a stay-at-home mother since that time. Defendant maintained her national license as a speech therapist but allowed her state license to lapse.

The record demonstrates that the parties enjoyed a comfortable upper-middle class lifestyle throughout their marriage. Plaintiff was the sole source of financial support throughout most of the marriage. Although plaintiff earned as much as $740,000 in the year preceding the filing of the complaint, the parties stipulated to $560,000 annual income from plaintiff's law practice. The parties also stipulated that the value of the firm for equitable distribution purposes was between $527,000 and $581,000 and that defendant's share was $200,000.

All of the family's expenses, except the maid, were paid by credit cards, checks, or automatic payments from bank accounts. After the separation, plaintiff continued to pay the family's shelter expenses and transportation expenses and all of defendant's credit card bills. Plaintiff testified that the marital standard of living was $12,500 monthly; defendant contended the marital standard of living required $19,383 monthly. The judge found that defendant's needs required $10,000 monthly and imputed $40,000 in earned annual income to her.

II

Defendant argues that the trial judge underestimated her expenses and over-estimated her ability to earn income. The result of these errors is an inadequate alimony award. She also contends that the judge compounded the error by failing to account for tax consequences of the alimony award.

This argument is in part a direct assault on the findings of fact of the trial judge sitting without a jury. The scope of review by an appellate court of findings of fact is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).

Deference is particularly appropriate when the evidence at trial is largely testimonial because the trial judge had the opportunity to hear, see, and observe the witnesses. Cesare, supra, 154 N.J. at 412. Therefore, this court will not disturb the factual findings of any trial judge "unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484 (internal quotations omitted).

Moreover, "matrimonial courts possess special expertise in the field of domestic relations," which includes divorce, alimony and child support actions. Cesare, supra, 154 N.J. at 412. Thus, we afford great deference to a Family Part judge's discretionary decisions and factual findings. Id. at 413; Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009). A trial court's interpretation of the law, however, is entitled to no special deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A motion for reconsideration is vested in the sound discretion of the court and should be granted only when the trial judge concludes the initial decision was based on a palpably incorrect or irrational basis, or the judge did not consider or failed to appreciate the significance of probative and competent evidence. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996); D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990). We, therefore, employ an abuse of discretion standard when we review an order denying reconsideration. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).

"[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" during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). In general, when the support of an economically dependent spouse is at issue, we consider the needs of the dependent spouse, that spouse's ability to contribute to the identified needs, and the supporting spouse's ability to fund those net needs. Id. at 24; Lepis v. Lepis, 83 N.J. 139, 152 (1980). The needs of the supported spouse envision support in accordance with the marital lifestyle. Crews, supra, 164 N.J. at 24; Lepis, supra, 83 N.J. at 150. In addition, a judge is guided by the factors outlined in N.J.S.A. 2A:34-23b.

Defendant argues that the judge ignored some clearly documented expenses, including service contracts for maintenance of equipment in the marital home, car payments, school lunches and lessons for the youngest child, and charitable contributions to her synagogue. She argues that these omissions contributed to an understatement of the marital lifestyle and an inadequate alimony award.

The trial judge made detailed findings of fact regarding shelter, transportation and personal expenses. As to these expenses, the judge explained the basis of the marital lifestyle and needs, finding as follows:

The testimony and the documentary evidence . . . established the family lifestyle during coverture to be $10,000 to $15,000 per month. That conclusion is based on credit card and bank statements in evidence . . . , as well as hand-written statements prepared by Defendant concerning what the actual expenses really are . . . . This evidence establishes the family lifestyle.

The judge settled on the lower end of the range by according greater credibility to documented expenses reflected in the credit card statements and bank statements than to defendant's testimony. In doing so, he noted that defendant did not produce copies of service contracts and defendant testified she made lunch for the youngest child everyday. In addition, defendant did not provide any evidence of expenses incurred by her for sports or hobbies. The judge also determined that the dues at the synagogue were $2,200 annually, rather $1,438 monthly as stated by defendant.

The judge elaborated on the basis for his findings in his decision on defendant's motion for reconsideration. He said:

The Court, because of defendant's lack of credibility, only credited documentary evidence. The Court did not award defendant school lunch money because she stated she made [the youngest daughter's] lunch everyday. The court found Defendant did not use the baseball or Nets tickets. . . .

The one service contract documented by Defendant was no longer required because Plaintiff had recently repaired the heating and air conditioning systems, thus there were no documented contracts.

Having reviewed the testimonial and documentary evidence in its entirety, we discern no basis to disturb the finding concerning marital lifestyle and defendant's annual expenses to continue to live in the style to which she had become accustomed. As noted by the trial judge, the parties' longstanding practice to pay virtually every expense by credit card, debit transactions or personal checks provided an extraordinarily complete record of the marital expenses. The documentation allowed ...


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