On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-309-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued October 25, 2011 -
Before Judges Axelrad and Ostrer.
Defendant Jean Happold appeals from the alimony and counsel fee award in the divorce judgment entered on December 21, 2010 after a brief trial. Defendant argues that it was error to award ten years of limited duration alimony instead of permanent alimony after the parties' long-term marriage. She also argues that the court failed to apply the required factors in considering her counsel fee request. We reverse and remand.
The parties were married in 1989. Plaintiff filed his dissolution complaint on October 14, 2008 after separating from his wife the previous July. The parties have three daughters; one was emancipated before trial. Defendant was born in 1966 and plaintiff in 1965.
Before trial, counsel reported that the parties reached agreement on all matters except: alimony, equitable distribution of an account that defendant alleged plaintiff had dissipated, and the enforceability of a prenuptial agreement. Although counsel did not mention attorney's fees, that remained an issue.
The parties agreed that defendant would have primary residential custody of the two minor children and plaintiff would exercise overnight parenting time twenty-six nights a year. The parties also agreed to divide all assets evenly, except that defendant would receive the marital home, which had $164,000 in equity after subtracting a $32,000 mortgage. Insurance cash values were allocated to pay off the house debt and defendant would reimburse plaintiff $82,000 by transferring part of her half-interest in plaintiff's 401(k) account.
At trial, plaintiff's employer testified that plaintiff was a project manager, estimator, and corporate secretary for Masonry Preservation Group, Inc., where he had worked for over twenty years. He started out as a laborer, but his income grew substantially after 2003, as he acquired new skills and responsibilities. His reported income was $101,000 in 2005 and $180,900 in 2006. The court found that plaintiff currently received a base salary of $156,000 a year, plus $8000 in automobile benefits. As plaintiff's bonus income fluctuated, his total wages including bonuses were $181,370 in 2007, $215,000 in 2008, and $238,500 in 2009. His employer testified no bonus was expected in 2010 because of business conditions.
Defendant became pregnant with the parties' first child, a daughter, when she was sixteen years old in tenth grade. Plaintiff was in eleventh grade. Defendant then dropped out of school, finishing only ninth grade. She lived with her parents after the birth in the spring of 1983.
In 1984, she and the child began living with plaintiff in his family's home. Plaintiff finished high school, and began working. Plaintiff's mother also worked. Defendant remained in the home, cleaning, washing, cooking, and caring for the child.
Defendant testified that plaintiff proposed marriage on Christmas Eve in 1987. They began looking at houses and in July 1988, plaintiff purchased in his sole name what would become the marital home. (Plaintiff testified that he bought the house in 1987 before the engagement, but he could not explain on cross-examination why the deed clearly reflected a July 1988 closing.) The parties and their child moved in after the purchase.
The parties married on December 30, 1989. However, two days before, the parties entered a prenuptial agreement in which defendant purported to waive any claim for support or equitable distribution in the event of divorce, or any claim to plaintiff's property in the event of his death. Plaintiff conceded at trial that he retained the attorney who represented both parties to the agreement.*fn1
Defendant gave birth to the parties' two other daughters in 1993 and 1995.
The parties disputed the extent of their home-making duties. Plaintiff testified that he did all the shopping, helped with cooking and house cleaning, and attended all school-related conferences, which his wife did not. As discussed below, defendant described a different allocation of roles.
The parties also differed regarding the family budget. Plaintiff testified that his wife and two teenaged daughters jointly spent $20 a month for hair care, and $25 a month for clothing, but he would give clothing as gifts and would pay for hair care and manicures around birthdays. In his case information statement (CIS), he alleged that his wife and daughters spent $5 a month for prescription drugs; and $10 a month for non-prescription drugs, cosmetics, toiletries and sundries. Plaintiff allocated zero for entertainment, lessons, sports and hobbies, school lunch, dry cleaning, medical or dental expenses, savings, and maintenance of the ten-year-old minivan defendant drove. Plaintiff budgeted monthly $70 for restaurants and $375 for vacations for his wife and children. Earlier in the marriage, the parties took annual vacations to Maine or Florida. As plaintiff's income rose, they took more expensive vacations to Hawaii, California, Las Vegas, and St. Maarten.
Plaintiff claimed that defendant chose not to enter the workforce. She was generally uninvolved in the family's finances, and did not have any bank accounts or credit cards in her own name. The only jointly-held asset was a savings account with roughly $2000 at the time of separation, which was intended to give defendant immediate access to money if plaintiff died.
All other marital assets, including all bank accounts, were in defendant's name. He testified that she resisted his efforts to teach her how to write a check.
Defendant painted a different picture of her role in the family, the family finances and her absence from the workforce. She testified that plaintiff discouraged her from obtaining employment, stating, "He always said I was too dumb to work." As for her lack of involvement in the family finances, she explained that her name was never put on a checking account "[b]ecause Jay said it was his money and it was his business," a position consistent with the prenuptial agreement. She said her name was never put on any of the household bills, "[b]ecause Jay thought I was too stupid to handle the bills." Although she signed the parties' joint tax returns, she said she did not read or understand them. Even after the separation, plaintiff continued to write checks to pay defendant's household bills.
As for involvement in the children's school activities, defendant stated that she was "room mother" for the parties' oldest daughter; she went to most of her conferences, and "did all her school activities." She was also involved in "[a]ll the school activities" of the two younger children, including "[c]onferences, room mother, yearbook committee, parent committee." She testified, "All the school trips, I went on.
Anything that was done at the school. Fun Day." She stated that she ceased attending parent-teacher conferences only after she and plaintiff entered a civil restraints consent order August 5, 2009 when plaintiff dismissed a harassment-based domestic violence complaint against her. She explained that plaintiff chose to attend the conferences, which she understood precluded her from attending, given the civil restraints.
She testified that during her marriage, she was "[m]ostly bullied, told what to do" and "made . . . [to] feel like I was nothing." She said that her husband did the grocery shopping "[b]ecause he said I was too dumb to do it."
She said that her husband gave her $20 a week for gas, which he later increased to $40. In the year preceding separation, he began to give her $300 a week in cash, which he then reduced to $275 a week. In other cases, she needed to ask her husband for money for a specific purchase, such as small household items or children's clothing.
Defendant claimed significantly greater living expenses in her CIS than plaintiff described, but conceded that she was "not really sure" about the accuracy of her scheduled expenses. Defendant allocated $250 a month for entertainment; $50 for children's lessons; $75 for sports and hobbies; and $130 for school lunches. Defendant testified that the parties went to a restaurant once a week; and as plaintiff's income rose, they went to more expensive restaurants.
She also testified that the house roof leaked and there were other neglected home maintenance projects. The ten-year-old Ford minivan she drove had ceased working during the separation, leaving her without a car for an extended ...