On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-0916-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodriguez and LeWinn.
In this legal malpractice action, Teresa Bunkers, formerly Teresa B. Huck, appeals from the January 25, 2010, March 5, 2010 and the March 19, 2010 orders in favor of her former divorce lawyer, Edward S. Snyder, and his law firm, Weinstein, Snyder, Lindemann, Sarno, P.C. (collectively "Snyder"). Bunkers argues that the judge erred by finding that the report submitted by her legal malpractice expert, Toni R. Ann Marcolini, was a net opinion. This finding led to the entry of the January 25, 2010 order entering summary judgment in favor of Snyder and dismissing Bunkers' complaint. Bunkers also contends that the judge erred by denying her motion for reconsideration in the March 5, 2010 order. Lastly, she argues that the judge erred by entering the March 19, 2010 order denying her post-judgment motion for a limited extension to the discovery period in order to supplement Marcolini's report. We agree with Bunkers' first two contentions and, therefore, reverse and remand for further proceedings.
Bunkers and Anthony Huck were married for sixteen years and had four children. Buck retained Snyder who filed a divorce complaint on her behalf. Huck answered and counterclaimed.
The parties engaged in settlement discussions. Bunkers and Huck executed a property settlement agreement (PSA) on September 9, 2003. The terms of the PSA that are relevant to this appeal include: (a) any stock options are to be divided equally between the parties as of June 30, 2002; and (b) Bunkers is to receive limited term alimony of $10,000 per month, plus twenty percent of Huck's annual salary and bonuses over $450,000 for fourteen years, unless Bunkers remarries or one of the parties dies before that time. On the same day, Judge David J. Issenman, J.S.C. granted a divorce that incorporated the terms of the PSA.
Five years later in August 2007, Bunkers retained new counsel, Karin Duchin Haber, negotiated a consent order that increased Huck's child support obligation. The support was increased to $7,000 per month effective July 2007.
In July 2008, Bunkers sued Snyder, asserting a claim for legal malpractice. Specifically, Bunkers alleged that in negotiating the PSA, Snyder deviated from the accepted standard of care of an attorney by not treating the stock options as part of Huck's income. As a result, Bunkers' spousal and child support awards were not based on Huck's true income. Thus, she suffered economic loss. After issue was joined and as part of the discovery process, Bunkers timely served a September 5, 2008 expert report prepared by Marcolini.
Marcolini's nineteen-page report first listed the documents made available to her, followed by a summary of the facts. She described the marital life style as "upscale" and indicated that stock options generated a significant portion of Huck's income and supported the marital standard of living. Marcolini noted that in 2001 and 2002, respectively, Huck's income, attributable to the exercise and sale of stock options, was $2,757,912 and $841,389 respectively.
In the section titled "ALIMONY," Marcolini cited to the following governing authorities:
The goal of a proper alimony award is to assist a supported spouse in achieving a lifestyle that i[s] reasonabl[y] comparable to the one enjoyed while living with the supporting spouse during the marriage.
Crews v. Crews, 164 N.J. 11, 16 (2000); in accord with Innes v. Innes 117 N.J. 496, 503 (1990); Mahoney v. Mahoney, 91 N.J. 488, 501-502 (1982); Lepis v. Lepis, 83 N.J. 139, 150 (1980); Khalaf v. Khalaf, 58 N.J. 63, 69 (1971). It is an outstanding principle of law that investment income should be imputed to a payor spouse for purposes of calculating alimony. Miller v. Miller, 160 N.J. 408 (1999).
In the section titled "CHILD SUPPORT," Marcolini once again explained the governing standard, and her conclusions ...