August 28, 2012
ROOPA RAJA, PLAINTIFF-RESPONDENT,
SIVASUBRAMANIA PERIYASAMY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2106-10-H.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2012
Before Judges Lihotz and St. John.
Sivasubramania Periyasamy (husband) appeals from a Dual Final Judgment of Divorce (JOD) dated February 28, 2011, ordering him to pay $1452 per month in permanent alimony to his former spouse, respondent Roopa Raja (wife). Husband's main contentions on appeal are that the trial judge erred (1) by failing to consider an appropriate award of rehabilitative alimony, awarding instead permanent alimony, and (2) by misapplying wife's standard of living during the marriage, which resulted in an excessive alimony award. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
A two day trial was held in the Family Part, with wife and husband providing the only testimony. They were married in India in 1993, and a son was born of the marriage in 1995. Husband, born in 1960, is an IT consultant who earns approximately $83,000 per year, and wife, born in 1972, is a hotel receptionist who earns approximately $24,000 per year.
After almost seventeen years of marriage, wife filed a divorce complaint on April 27, 2010. In her oral decision, the trial judge noted that, in addition to the dissolution of the marriage, the issues presented at trial were related to alimony, child support, allocation of credit card debt, college contribution, and counsel fees. Husband appeals only the court's award of alimony. The judge noted that her decision was grounded in the thirteen factors enumerated under N.J.S.A. 2A:34-23b.*fn1
N.J.S.A. 2A:34-23b provides four types of alimony: rehabilitative, reimbursement, limited duration, and permanent. Rehabilitative alimony is designed to enable the supported spouse to "complete the preparation necessary for economic self-sufficiency." Hill v. Hill, 91 N.J. 506, 509 (1982). Payments cease once the dependent spouse has attained the ability to support oneself. Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998). Rehabilitative alimony may be awarded when "the marriage is relatively short and the recipient spouse is capable of full employment based on experience, additional training or further education." Heinl v. Heinl, 287 N.J. Super. 337, 348 (App. Div. 1996); Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992).
The following summarizes the judge's findings relevant to this appeal.
With regard to the first factor, the actual need and ability of the parties to pay, there was a disparity in the parties' income levels: wife earns $24,000 per year, while husband earns approximately $83,000 per year. The judge rounded up wife's monthly expenses to the amount of $2900, while her available net monthly income was $1448. Husband listed his monthly expenses to be $3418, which included $1200 in hotel accommodations required for his business travel and temporary housing needs associated with the parties' separation. The judge found husband's assertion of $1200 in monthly hotel expenses was "grossly exaggerated and lacking in any justification and quite simply incredulous." Husband testified that he has been living out of his car, yet alleged he still incurs $1200 per month for hotels. Further, the judge found husband "grossly exaggerated" his expenses for restaurants. After review, the judge reduced husband's expenses to what she found was "reasonable," based on the evidence. The judge also noted husband has a total available monthly income of $5012.18, which can "contribute to the needs of  wife while meeting [husband's] own needs."
With regard to factor three, the age, and physical and emotional health of the parties, wife and husband, at the time of trial, were thirty-eight and fifty years of age, respectively, and in "relatively good health."
The judge found with regard to factor four, the standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living, "there was limited testimony provided as to the standard of living by the parties." The testimony revealed that they lived in a condominium, situated in a middle-class neighborhood in Plainsboro. However, the parties did not vacation or eat out, their spending was "at a bare minimum," and the majority of their earnings were put in savings or invested.
With regard to factor five, the earning capacities, educational levels, vocational skills, and employability of the parties, wife attended three years of college in India but she would need another year of classes to earn her degree. The judge found that wife "presented unreliable hearsay testimony with respect to what would be required for her to obtain a degree in the United States." Wife started working part-time in 2007, and works full-time as a hotel receptionist, earning $24,000 per year. However, even though wife is an educated woman, "there has been limited evidence presented as to her intention to further her education in the United States so that she is able to earn comparable to her education." However, she has the ability to educate herself "in order to contribute to her needs and ultimately become self sufficient."
The judge found husband has a master's degree and is sufficiently educated and employable, while earning $83,000 per year, even though in previous years he earned over $100,000, but has since lost his former job because of the poor economy. The judge declined to "impute" income, noting that both parties have the ability to earn additional income while recognizing their "difficulty in the present economic times."
Under factor number six, the length of absence from the job market of the party seeking maintenance, wife has only been employed since 2007 and she does limited volunteer work for approximately three to four hours per week as a class parent or bookkeeper.
With regard to factor seven, the parental responsibilities for the children, the judge found that the parties' son is "of a sufficient age where [he] is essentially self sufficient."
Factor number eight considers the time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income. The judge found, in these circumstances, "there was limited testimony addressing this factor as I've outlined in factor number five."
With regard to factor ten, the equitable distribution of property ordered and any payouts on equitable distribution directly or indirectly out of current income, the judge found that after the sale of their condominium and their stock, pensions and IRA account, each party will receive over $100,000.
The judge's analysis of these factors took into account the parties' nearly seventeen-year marriage and that "this [case] appears to be a permanent alimony case" based on the economic dependency developed by wife. Ultimately, the judge found however[,] . . . the disparity in age and educational levels of the part[ies] makes the case appropriate for consideration for rehabilitative alimony as well as payable for a specific and terminable period of time once the wife has reached a position of self sufficiency. However, after considering the evidence presented, the court finds the record is devoid of reliable evidence that will allow the court to adequately consider an award of [rehabilitative] alimony. Factors such as, the cost of education, the hours necessary, feasibility, in accordance with Finelli, [supra, 263 N.J. Super. 403]. . . . This case presents with some challenge because while there's economic dependency in the marriage, the wife survived on limited income available through her part time employment when she began working in 2007 and the parties' lifestyle appeared to be at a bare minimum. It appears that the majority of the income obtained in the marriage from the husband was either placed in investments or savings. As such, all the benefits obtained from the husband's increased earning power are available to the wife through equitable distribution.
Based upon the analysis of aforementioned factors[,] the court finds that an award of permanent alimony is warranted. The husband shall pay the wife $1452 a month. . . . Alimony shall begin upon the sale of the marital residence.
On the same day she rendered her decision, the judge entered an order memorializing its contents, while also providing instructions for husband's payment of child support and wife's attorney's fees.
Husband argues that the trial judge underestimated his expenses and over-estimated his ability to earn income. The result of these errors is a greater alimony award than is supported by the record. He also contends that the judge compounded the error by awarding permanent alimony. He asserts the judge should have awarded rehabilitative alimony and not permanent alimony.
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).
"[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.
On any application for permanent alimony, it is incumbent upon the trial judge to first "consider and make specific findings on the evidence" as to the statutory factors set forth in N.J.S.A. 2A:34-23b. N.J.S.A. 2A:34-23c. See also R. 1:7-4(a); Crews, supra, 164 N.J. at 25-26; Filippone v. Lee, 304 N.J. Super. 301, 306-07 (App. Div. 1997); Heinl, supra, 287 N.J. Super. at 347. If the judge determines that permanent alimony is not warranted, further specific findings setting forth the judge's reasons for that determination must be made. N.J.S.A. 2A:34-23c. Consideration of any other form of alimony may follow only after those determinations and findings have been made. Ibid. Clearly, limited duration alimony is neither an available option nor an appropriate remedy in all dissolution cases. Cox v. Cox, 335 N.J. Super. 465, 479 (App. Div. 2000). Where analysis of the statutory factors within the context of this marital partnership principle suggests an award of permanent alimony, the exclusive use of rehabilitative or reimbursement alimony is clearly contraindicated. Id. at 480.
A court has substantial discretion in determining whether to grant alimony and in setting the amount. Jacobitti v. Jacobitti, 135 N.J. 571, 575 (1994). This court defers to a trial court's findings regarding alimony if they are supported by substantial credible evidence in the record. Cox, supra, 335 N.J. Super. at 473. An award of support 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.'" Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999) (quoting DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)).
We discern no error in Judge Carter's decision to award wife permanent alimony or in the quantum of the award. The judge properly considered the seventeen-year duration of the marriage, as well as the parties' ages, health, standards of living, projected budgets, and their "respective roles . . . during the marriage, and the economic dependency developed by [wife]." The judge also considered the substantial disparity in their incomes. The decision also noted that, although wife was educated in India, there was no admissible testimony regarding the requirements to obtain a college degree in the United States, which precluded a specific finding as to wife's capability of obtaining a degree, thereby improving her employment opportunities and ability to increase her income. Each factor was given due consideration under the statute, and the judge's determination that permanent alimony should be awarded in favor of wife is amply supported by the record and entitled to deference.