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Gail M. Eberhard v. Edward A. Eberhard

November 2, 2012

GAIL M. EBERHARD, PLAINTIFF-RESPONDENT,
v.
EDWARD A. EBERHARD, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1186-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 25, 2012

Before Judges Lihotz and Ostrer.

Defendant Edward A. Eberhard appeals from three Family Part orders dated May 6, May 17, and August 18, 2011, which respectively awarded an increase in alimony at the request of plaintiff Gail M. Eberhard, granted her request for counsel fees and costs incurred in filing the motion, and denied defendant's motion for reconsideration. Defendant argues the determinations are unsupported by the credible evidence in the record. We agree and reverse in part.

After fourteen years of marriage, plaintiff filed a complaint for divorce. The parties amicably resolved the collateral issues incident to the dissolution of their marriage, which they set forth in a comprehensive matrimonial settlement agreement (MSA) dated June 22, 2005. The MSA was incorporated into a final judgment of divorce (FJOD), entered the same day.

Among the terms contained in the MSA was defendant's agreement to pay plaintiff alimony in the amount of $710 per week. The award was based upon defendant's annual earnings of $112,528 and no income earned or imputed to plaintiff because she anticipated undergoing spinal surgery. Plaintiff acknowledged her "obligation to assist in her recovery, her application to school, and her attempt to be[come] gainfully employed." The parties also recognized uncertainties attached to the surgery and plaintiff's recovery. Consequently, they agreed the alimony award would be reviewable after July 1, 2008.

In 2009, the parties filed cross applications to review several issues, including alimony. Following submission of their respective pleadings, the parties settled certain disputes related to the sale of the former marital home, their child's emancipation, and the payment of obligations due one another.

The parties also agreed they would defer final determination of the remaining issues, including modification of alimony, pending the exchange of discovery.

On March 15, 2011, plaintiff filed a second post-judgment motion seeking enforcement and included a request for a twenty percent increase in alimony. Plaintiff maintained she was unable to pursue her education as anticipated in the FJOD and was totally disabled and completely dependent on alimony for support. She stated her expenses totaled $61,092 per year and cited the 13.23 percent increase in the consumer price index from entry of the FJOD in 2005 until the date of her motion, as support for an increase.

Defendant filed a cross-motion. He requested the court deny plaintiff's motion and reduce the amount of alimony he was ordered to pay. Defendant argued plaintiff's needs had decreased by $24,456 per year since the entry of the FJOD because she no longer incurred support for the parties' child who had been emancipated and the former marital home had been sold. Further, he believed several claimed expenses were inaccurate or exaggerated, believing plaintiff's realistic budget was no more than $4066 per month. For example, defendant challenged plaintiff's claimed rental expense asserting the New Jersey address she used was her mother's and otherwise plaintiff stayed with her boyfriend at his Florida residence. He also challenged the listed personal expenses for items like clothing, alcohol and tobacco, vacations, and gifts.

In his pleadings, defendant addressed his income, noting his salary from full-time employment remained virtually unchanged since 2005. He acknowledged after the divorce he obtained a part-time job to "make ends meet," pay marital debts and their child's college costs, explaining he anticipated $8000 gross annual income from this job.*fn1 Both parties requested the other contribute to attorney's fees and costs incurred to file the motion and cross-motion.

On May 6, 2011, without benefit of oral argument, the court entered an order granting several requests presented by plaintiff, including a modification of alimony, which increased defendant's obligation to $850 per week and awarded plaintiff $7500 in counsel fees. Defendant's motion for a reduction in alimony was denied in a separate order. A statement attached to the orders incorrectly states "[t]his is a long[-]term marriage of 21 years" and that "[t]he original [M]SA was entered into knowing full well that the [p]laintiff was severely injured and unable to work." The judge concluded "[t]he upward modification of alimony . . . seems appropriate." The only factual support for this conclusion was plaintiff's identified increase in the cost of living. As to counsel fees, the judge found "[p]laintiff was forced to file this application because of the recalcitrance of the [d]efendant[,]" "[d]efendant's positions on the various issues have been unreasonable[,]" "[d]efendant [wa]s in a much better financial situation than the [p]laintiff who is totally disabled and without any source of income, sans alimony[,]" and "[t]he fees incurred by [p]laintiff were necessitated [sic] to obtain enforcement of the parties' [M]SA." On May 17, 2011, the court acknowledged the prior order contained a typographical error and amended the alimony award to $780 per week.

Defendant moved for reconsideration. The court held oral argument on July 7, 2011. Regarding the challenge to the increased alimony award, the motion judge stated: the [$]780 a week is an appropriate number, and I base it on the . . . fact that the marital lifestyle should have ...


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