On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-859-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Kennedy.
Defendant appeals from various provisions of the amended final judgment of divorce (AJOD) and various post-judgment orders. We affirm in part and reverse in part.
This has been a heavily litigated action. We summarize only those facts and proceedings relevant to this appeal.
The parties were married in November 1985. Plaintiff filed a complaint for divorce in October 2007. They have two sons, born in 1987 and 1989. Defendant is an attorney and became a partner at Sullivan & Cromwell in 1992. Although his income fluctuated, his attorney argued at trial that $2,750,000 would be a fair amount of income to impute to him. Plaintiff earned a master's degree in special education and was last employed outside the home in 1992. The trial court imputed income to her of $50,000.
In December 2007, plaintiff filed a motion for pendente lite relief, including spousal support and fees for counsel and experts. By order dated February 8, 2008, the court ordered, inter alia, that defendant pay plaintiff $60,000 in taxable alimony for the first three months of 2008 and that "$100,000 shall remain in a separate account and may be used for equal distributions of counsel and expert fees."
Trial began in November 2008 on the issue of the valuation of defendant's partnership interest. In May 2009, the parties agreed that plaintiff was entitled to receive $1,025,000, representing equitable distribution of the partnership interest.
At oral argument, defense counsel identified this as the only provision of the AJOD that defendant does not want to reopen.
There was additional motion practice in 2009, which included plaintiff's motion for additional expert and counsel fees and defendant's cross-motion, asking that any award of attorney's fees to plaintiff be treated as an advance against her share of equitable distribution. The court ordered defendant to pay plaintiff's expert and counsel fees through December 31, 2008 in the aggregate amount of $76,000. Of this amount, $13,000 was to be treated as an advance against equitable distribution to plaintiff and the remainder was paid without prejudice to the parties' claims.
Trial continued as to the remaining disputed issues, including alimony, equitable distribution, and counsel fees.
At the close of the trial, the court asked counsel to submit a list of the issues to be decided and those issues as to which the parties had reached an agreement. The Statement of Open Issues left for the court to decide included alimony, the amount of life insurance defendant was required to carry while he was required to pay alimony, the buyout terms for defendant's initial payment for the marital residence and counsel fees. The Statement of Agreed Upon Issues included the following:
3. The defendant shall own the former marital residence, in return for his paying the plaintiff $200,000.00 and 1/3 of any amount that the property is sold in excess of $2,700,000.00 to a bona fide third purchaser.
4. In return for the defendant previously paying the [plaintiff] $103,392.00, the plaintiff waives any claim to modification of the pendente lite support Order through May 31, 2009.
5. The plaintiff and defendant shall each report alimony paid by the defendant to the plaintiff of $220,000.00 in 2008.
6. Alimony pursuant to the Court's decision shall commence on June 1, 2009.
11. The cash surrender value of [certain enumerated life insurance] policies shall be divided equally between the parties.
15. While no direct child support will be paid at this time, each party reserves the right to seek child support, contribution to college or graduation, medical insurance, contribution to unreimbursed medical expenses and contribution to other expenses for the children in the future.
The trial court issued a written decision, dated June 18, 2009, and a final judgment of divorce dated July 27, 2009. The judgment memorialized issues agreed upon by the parties as well as the court's resolution of remaining issues.
The court characterized alimony as "the primary issue." After setting forth its findings, the court awarded plaintiff
$650,000 per year in permanent alimony. In recognition of defendant's agreement "to reimburse and pay all taxes" for plaintiff from February 8, 2009 to June 30, 2009, the court ordered that the permanent alimony award would take effect August 1, 2009. The court ordered that in the event that defendant's annual income fell below $2 million, he would receive a reduction in alimony.
The court also ruled that defendant would be permitted to purchase plaintiff's interest in the marital residence "for $200,000.00 now and 30% of the purchase price over 3 million dollars at the time of the sale of the property." As for life insurance, the court required defendant to maintain $3 million in life insurance for the duration of his alimony obligation. The court acknowledged the representation made in defense counsel's letter of June 11, 2009, that the insurance would be provided by a term life insurance policy provided through defendant's law firm. In addressing counsel fees, the court required defendant to make an additional contribution of $89,436.10 toward plaintiff's counsel fees and to pay one-half of $16,966.71 in outstanding expert fees.
Plaintiff filed a motion for reconsideration. Defendant filed a cross-motion for reconsideration in which he asked, inter alia, for the court to reconsider paragraph 28 of the Judgment of Divorce, which required him to pay an additional $97,979.65 toward plaintiff's counsel and expert fees. In addition, defendant asked the court to require plaintiff to pay her share of the taxes incurred by his cashing in life insurance policies. By order dated October 28, 2009, the court decided the various issues raised in the motion and cross-motion for reconsideration. The court denied defendant's requests for reconsideration of counsel fees and for plaintiff to pay for tax liability for the insurance policies cashed by defendant. In addition, the order stated that it was "[o]rdered and agreed defendant may substitute the term life insurance coverage available through his employer S&C with other life insurance, at whatever premium cost, of the same face value, $3,000,000, naming plaintiff as irrevocable beneficiary so long as Alimony is due to plaintiff . . . ." The court also entered an amended Dual Final Judgment of Divorce (AJOD).*fn1
On December 4, 2009, defendant filed a motion for stay pending appeal, plaintiff opposed the motion, and the court denied the motion by order dated December 11, 2009.
Thereafter, at defendant's request, the court conducted a hearing regarding counsel fees on February 3 and 18, 2010, and the parties submitted fee certifications. By written opinion dated March 15, 2010, and by order dated April 13, 2010, which was subsequently made effective May 17, 2010, the court ordered defendant's monthly alimony obligation to plaintiff of $54,166 retroactive to March 1, 2009, so that "defendant owes to plaintiff the 'grossed-up' taxable sum of $129,165," denied defendant's request for return of the fees advanced to plaintiff on prior applications, ordered defendant to pay plaintiff's counsel fees and costs in the amount of $21,400, and vacated paragraph 28 of the AJOD regarding counsel fees and "supplemented [it] with" the above-mentioned terms of the April 13, 2010 order.
Defendant filed a motion for reconsideration of paragraph 1 of the April 13, 2010 order, which required payment of retroactive alimony, and for other post-judgment relief, including a downward modification of his monthly alimony obligation from $54,166 to $28,750, an extension and reduction in the payment schedule to plaintiff of her interest in his law firm, an award of child support, reimbursement for pendente lite payments made towards one of his children's education expenses or, in the alternative, $19,072 from plaintiff (i.e., twenty- three percent of his payments towards the child's education expenses), plaintiff's execution of documents extinguishing her interest in the marital residence, and an order compelling plaintiff's compliance with paragraph 17 of the judgment of divorce and AJOD, which required division of personalty from the marital residence. Plaintiff filed a cross-motion to enforce litigant's rights, and defendant responded.
The court entered two orders, dated July 8, 2010, on the motion and cross-motion. The court denied all of defendant's requested relief, except that it ordered plaintiff to execute the documentation extinguishing her interest in the marital residence and comply with paragraph 17 in the judgment of divorce and AJOD requiring division of the marital furniture and personal property. The court granted in large part plaintiff's requested relief. The relevant paragraphs that defendant appeals from include: 4 (concerning division of personalty); 5 (directing defendant to "provide proof of the additional $6,000,000 of life insurance on his life"); and 8 (requiring defendant to make support and equitable distribution payments by electronic payment/wire transfer).
Defendant filed his notice of appeal on July 29, 2010.*fn2
The issues presented for our consideration are:
THE COURT FAILED TO PROPERLY APPLY THE STATUTORY FACTORS FOR ALIMONY IN THIS MATTER
1. THE ACTUAL NEED AND ABILITY OF THE PARTIES TO PAY
2. THE DURATION OF THE MARRIAGE
3. THE AGE, PHYSICAL AND EMOTIONAL HEALTH OF THE PARTIES
4. THE STANDARD OF LIVING ESTABLISHED IN THE MARRIAGE AND THE LIKELIHOOD THAT EACH PARTY CAN
MAINTAIN A REASONABLY COMPARABLE STANDARD OF LIVING
5. THE EARNING CAPACITIES, EDUCATIONAL LEVELS, VOCATIONAL SKILLS AND EMPLOYABILITY OF THE PARTIES
6. THE LENGTH OF ABSENCE FROM THE JOB MARKET OF THE PARTY SEEKING MAINTENANCE
RESPONSIBILITIES FOR THE ...