On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-1105-07C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 30, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In this matrimonial matter, defendant John C. Newman (husband) appeals from certain provisions of his dual final judgment of divorce. He asserts that the court failed to make adequate findings of fact, erred in determining the parties' incomes and the duration of alimony, and erred in awarding counsel fees to plaintiff Valerie L. Newman (wife). We affirm in part and remand for further proceedings.
The parties were married in October 1994. Two sons were born of the marriage, one in 1997, and the other in 2001. Wife filed a complaint for divorce in June 2007. Husband filed an answer and counterclaim. The court conducted a twelve-day trial in November and December 2008, and on December 21, 2008, rendered an oral decision that was memorialized in a dual final judgment of divorce (FJD) on December 22, 2008. Relative to this appeal, the court ordered husband to pay wife $2,250 monthly in limited duration alimony based on imputed incomes of $122,300 to husband and $45,000 to wife, and to pay $5,000 towards wife's counsel fees. This appeal ensued.*fn1
The following facts were presented in testimonial and documentary evidence at trial. As husband did not appeal his child support obligation, parenting issues, or equitable distribution, we will not reference those facts in this opinion. However, we do note that the FJD awarded the parties joint legal and residential custody of their sons, then age twelve and eight, with alternate weekly parenting time, and directed husband to pay $80 per week in child support in accordance with the guidelines.
At the time of the trial, wife was forty years old and husband was fifty-one years old. Both parties were high school graduates. At the time of the marriage, wife was employed by Merrill Lynch as an administrative assistant, earning approximately $28,000 to $30,000 per year.
Wife took a maternity leave following their first son's birth in l997, returning to part-time work at Merrill Lynch in January 2001. She also worked part-time at the Peddie Child Development Center. Their son was placed in full-time day care. Following a six-month maternity leave after their second son's birth in 200l, wife resumed part-time work with Merrill Lynch as an executive administrative assistant. In 2003, wife began working at her job full-time. She also had primary responsibility for the day-to-day needs of the children. Wife documented her gross income for three years as follows: in 2005, she earned $49,551; in 2006, she earned $62,283; and in 2007, she earned $64,979.
In May 2008, wife's position with Merrill Lynch was terminated and, after collecting severance, she began receiving unemployment benefits. Wife sought other employment, and in September 2008, she found a temporary position through Joule, Inc., an employment agency, and began working as an administrative assistant to the director of marketing at Church & Dwight. Wife stated she was paid on an hourly basis, earning $25 per hour, and working a 35-hour week. Her job did not include pay for sick, personal, or vacation days, although she was eligible for holiday pay if she worked a certain amount of hours with the company. Wife's understanding was that the job would likely continue into 2009. She provided no supporting documentation of her income.
Husband worked for thirty-two years at the Peddie School (Peddie), a private school in Hightstown. At the time of the parties' marriage, husband was either in transition between the maintenance department and his present position as director of building services or was employed in his present position.*fn2
Since June 2000, the parties have lived in a house owned by Peddie and located on its campus. The house was provided to husband free of charge; his employer also paid the utility, water and sewer charges, and costs of lawn care and snow and trash removal. In exchange, husband was responsible to respond to any emergencies that might arise on the campus.
Husband's documented gross annual income for the few years proceeding and throughout the trial was $86,500, exclusive of the value of the free shelter expenses at Peddie. Wife presented the testimony of Richard J. Carabelli of Martin Appraisal Associates, Inc., who was qualified as an expert in real estate appraisals. He explained his comparative analysis and conclusion that the "gross monthly rental potential" of the Peddie house was $2,900, based on the assumption the tenant would pay utilities and the landlord would pay taxes. He thus opined that the monetary value to husband of living in the Peddie house would be more than $2,900 per month, considering that Peddie paid for the utilities.
In summation, husband's attorney noted that custody was the primary issue at trial. In consideration of the parties' twelve and one-half-year marriage, he argued, "[i]t's a term alimony case at best." He further urged that wife's recent unemployment and decision to earn less money was "her choice" and requested that the court impute $58,938 in gross annual income to her, representing her average income from 2005 through 2008. After commenting on the parties' expenses listed in their case information statements (CIS), husband's attorney concluded that wife "needs at best about $1,600 a month to meet her budget or [$]372 [a week] for three years after the shore house is sold" as term alimony. He further noted husband had expended over $100,000 in counsel fees, had a balance due of $77,350, and claimed wife had acted in bad faith, particularly in connection with the custody matter. Husband opposed a counsel fee award in wife's favor and urged that he be awarded a fee.
Wife's attorney stated that his client lost her job in 2008 and secured other employment, and thus only earns $43,000 annually. He noted her testimony about working with the agency to secure better employment. He also commented on husband's failure to obtain a vocational evaluation to determine whether wife had "superior earning capacity" and the dearth of cross-examination demonstrating she failed to seek employment or turned down more lucrative employment. He further suggested it would be nonsensical for wife to "take an under[-]paying job to hope to get lucky on alimony." He discussed husband's consistent gross annual income of $86,500 plus the additional $2,900 per month minimum attributable to free shelter expenses, and the parties' monthly expenses. Wife's attorney left to the court's discretion the determination of permanent or limited duration alimony ...