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Bonnie D. Clark v. Kenneth B. Clark

November 16, 2012

BONNIE D. CLARK, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
KENNETH B. CLARK, DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1669-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 20, 2012

Before Judges Axelrad, Sapp-Peterson and Nugent.

In this matrimonial matter, the parties each appeal from portions of the amended final judgment of divorce. Plaintiff Bonnie Clark argues the court should not have awarded defendant Kenneth Clark rehabilitative alimony, and challenges the quantum of the permanent alimony and child support awards. In his cross-appeal, defendant argues the court should have awarded more permanent alimony, retroactively increased the spousal support award, and required life insurance as security for alimony. Both parties claim they were entitled to counsel fees. We reverse and remand on plaintiff's appeal and affirm on defendant's cross-appeal.

I.

On May 17, 2010, plaintiff filed a divorce complaint against defendant. She also sought joint legal custody of the parties' children with shared residential custody, child support, equitable distribution, and counsel fees. Defendant filed an answer and counterclaim, seeking alimony and other relief similar to that sought by plaintiff. Plaintiff answered the counterclaim.

On September 16, 2010, the court executed a pendente lite consent order that, among other things, established a parenting time schedule and provided plaintiff would pay defendant $500 per week in temporary support. The parties resolved by way of stipulations matters related to equitable distribution, parenting time, aspects of child support, and college costs. The court conducted a bench trial on April 18, 25, and May 2, 2011, limited to custody, defendant's earning capacity, alimony, and remaining child support issues. On June 9, 2011, the court issued a final judgment of divorce incorporating the parties' prior stipulations, and rendered its oral decision on the tried issues. On July 19, 2011, the court signed the amended final judgment of divorce (FJD).

Plaintiff appealed and defendant cross-appealed. By order of June 27, 2012, we denied plaintiff's motion requesting a stay of the rehabilitative alimony provisions of the FJD and a limited remand to determine whether defendant's rehabilitative alimony payments should continue.

II.

The parties married on November 5, 1988, and have three children, sons born in March 1991 and February 1995, and a daughter born in September 2003. As of trial, their children were in college, tenth grade, and second grade, respectively. Plaintiff, forty-seven, was the Vice-President of Communications for the Phillies, and earned over $250,000 in 2010. Defendant, fifty-three, was living with his parents in Bala Cynwyd, Pennsylvania, and was working approximately forty hours per week at a retail carpet business earning $10 per hour. Both parties were healthy, with no reported physical ailments.

The parties lived in Cherry Hill throughout much of the marriage, and the trial record shows they enjoyed a middle-class to upper middle-class lifestyle, with expenses totaling between $9000 and $12,000 per month. The family took yearly vacations to places such as Florida, Vermont, and the Caribbean, and spent nearly $6000 every summer to rent a shore house for four weeks. They dined out approximately once a week at restaurants that ranged from Olive Garden to places "a little more upscale," and shopped at stores like Macy's, Loehmann's, and Nordstrom's.

Defendant held multiple jobs during the marriage, switching positions frequently after being laid off. He also struggled with drug-related issues throughout the marriage. For instance, in July 2003 he was fired from Office Depot where he had been earning approximately $34,000 per year as a pressman. Although the reason for his discharge is unclear, it was evidently marijuana-related. Defendant subsequently obtained treatment from Alcoholics Anonymous, and has purportedly "been straight" since that time.

Plaintiff worked continuously throughout the marriage other than taking maternity leave. She experienced steady salary increases throughout her career and became the family's sole wage earner after defendant was terminated from Office Depot. At the time of defendant's discharge, plaintiff was pregnant with their youngest child. Prior to 2003, the couple employed nannies and day care for their children while they worked. The parties decided that after the baby's birth defendant would stay home and care for the child until she was ready to enter school. Accordingly, defendant remained a stay-at-home father until the parties separated in September 2010. Defendant began working for a friend at Kelley Karpets, a business located in Pitman, in March 2011.

During trial, plaintiff agreed to the parties having joint legal custody of the children but requested she be designated the parent of primary residence. Plaintiff admitted she had enjoyed "an upward trend" in earnings during the marriage. She did not believe defendant made any sacrifices or contributions to further her career, because in her view defendant had never had a career, only a series of jobs. Plaintiff conceded, nonetheless, that defendant had done "a good job" caring for the children when she was working.

Plaintiff claimed her expenses had increased since the parties' separation because she was incurring costs for items such as housekeeping and childcare, in order to maintain the household on her own. According to plaintiff, because her current position frequently entailed travel and long hours, she had to rely on family and paid help to manage her obligations.

Plaintiff questioned several expenses listed on defendant's case information statement (CIS), and contended defendant did not actually need her financial help. Plaintiff emphasized that defendant never filed any support applications, and explained she only agreed to pay him $500 per week during the pendente lite period because she wanted "him out of the house for the safety" of her children and herself. She suggested defendant was being paid "under the table," and claimed defendant's former salary at Office Depot showed he was capable of earning significantly more than he was making at Kelley Karpets.

Plaintiff presented vocational expert Lynn Levine, Ed. D. Dr. Levine conducted a vocational evaluation of defendant, and summarized her findings in an October 7, 2010 written report that was admitted into evidence. Dr. Levine discussed defendant's personal background, education, prior work experience, and earning history. She related that defendant graduated from high school in 1976 with grades in the C-minus range. He eventually entered the Philadelphia Offset Printing School, and in 1978 became qualified to become a printing pressman. However, defendant did not subsequently take additional classes, and never acquired any computer-related skills such as keyboarding, e-mailing, or using fax machines.

Dr. Levine acknowledged that the number of printing jobs was declining, but was optimistic about defendant's re-entry into the printing industry. She explained that the increasing number of retirees, coupled with the simultaneous decrease in the number of new workers entering the field, placed defendant in an advantageous position based on his age and prior employment experience. When asked whether defendant would be considered a desirable applicant, she responded:

I believe so. He's very verbal. He presents well. And he told me that in many cases the equipment that he was trained on is still used. And this is an industry where there is good transferability of skills. What he does not have is experience in digital printing . . . . I went and I found a lot of opportunity for people to learn digital printing through webinars, [and] computer based training programs. . . . [H]is lack of experience in digital printing is something that could be overcome within a reasonable amount of time.

Dr. Levine discussed the tests she performed and the results. Considering defendant's expressed interest in driving as an alternate occupation to returning to work as a printing press operator, Dr. Levine concluded, as a second choice, defendant could attend CDL training and become a commercial driver, which had a strong job market. Defendant's earnings as a commercial driver would be comparable to what he could make if he returned to printing. Training to become a driver cost between $1500 and $4000 per year. She did not believe a misdemeanor conviction for drugs from seven years prior would rule out that option. Dr. Levine provided a third option, a fallback position, as a customer service representative because of defendant's good verbal skills.

In Dr. Levine's opinion, defendant had made "very, very few" efforts to obtain work, and was making less at Kelley Karpets than he was capable of earning. Overall, Dr. Levine concluded that in the printing industry or as a truck driver, the re-entry salary, considering defendant had not been employed recently and needed some upgrading of skills, would be in the low to mid $30,000 range. As a customer service representative, his entry earnings would be mid $20,000, as a bottom range. She reported that defendant's projected income should rise to the low to mid $40,000 range within three to four years of successful experience, given his prior work history in the printing industry.

Defendant related that his highest earning year was in 2002, when he worked at Office Depot earning approximately $34,000 per year. He conceded that at Kelley Karpets he was earning less than he had at any prior job since 1989. As to his domestic contributions, defendant asserted that he shouldered primary responsibility for the care of the children and home throughout the entire marriage because of plaintiff's work commitments. He explained that plaintiff's current position with the Phillies was particularly demanding, stating: she'd go in the mornings at 9:00, and she'd go to . . . all the home games, there's 162 games a year. . . . [S]he had to be at all 82, 81 home games a year. Some of them were day games, but most of them were night games, and she had to be there for the press conference after every game, and she wouldn't get home until 11:00.

In 2009, I remember she was away, with spring training, winter meetings, road trips, when she was away from the family, I counted 94 days a year.

Defendant testified he had lived with his parents since the parties separated in September 2010. As a result, his CIS did not reflect any shelter-related expenses such as rent, homeowner's insurance, or utilities. He anticipated using his $75,000 in equity from the marital home to purchase a home in the Cherry Hill area closer to his children. Defendant hoped to purchase something comparable to the marital home, which the parties stipulated was worth approximately $240,000. However, defendant provided no testimony or information about any potential property or any projected housing expenses. He merely testified to the monthly expenses of the marital home as reflected on his CIS: a $596 mortgage payment; $603 for property taxes; $60 for homeowner's insurance; and $509 for utilities. Defendant also testified that although plaintiff's CIS did not list a joint or current house cleaning expense, he anticipated a monthly expense of $200 for such a service. Moreover, although it was not part of the marital lifestyle to have professional lawn care as he always did it himself, he anticipated an expense of $250 per month.

Defendant also stated he would "like to be able to set aside" $500 per month for his retirement plan, which he did not list on his CIS because he had not "actually set the money aside yet." Defendant further testified that he owned a 2004 Nissan Quest "in fair condition" with l00,000 miles. He anticipated having to replace the car "in the next year or two or in the near future." Without reference to any specifics, defendant anticipated "approximately, between $300 and $400 a month in a car payment." Referring to his health insurance plan from work, defendant expected to pay $372 per month for replacement coverage for himself when he was no longer on plaintiff's policy. None of these items were reflected in defendant's CIS.

Defendant thus increased his total monthly budget listed on his CIS for "current lifestyle" expenses for shelter, transportation, and personal expenses for himself and his three children by $3431, from $3658 to $7089.

On cross examination, defendant acknowledged he presented no copies of any rental agreements, potential mortgages, or real estate taxes for properties currently on the market. Defendant also performed the lawn care and the bulk of the housecleaning, even when he was working full time during the period of l989 to 2003. With respect to retirement planning, defendant acknowledged that as part of his equitable distribution agreement with plaintiff, he would be receiving about fifty percent of her various retirement accounts.

Defendant's CIS included a $272 monthly expense for alcohol and tobacco, the same amount as was listed as the joint expense. Defendant acknowledged being involved in several alcohol and marijuana-related incidents and attending a treatment facility for drug and alcohol dependency and AA in 2003. Defendant also carried the same figure of $833 per month for vacations that had been spent for family vacations of five weeks at Long Beach Island as his current expense, because he "want[ed] to go down the shore and rent the house like we were doing for the last five years down there." Defendant had not gone on any vacations with the children since September 2010, even though they were off for various school holidays. Defendant also acknowledged his budget included some of his children's expenses, and conceded he would not need the full amount requested if he were not granted physical custody of the children.

Defendant further acknowledged that almost every year he worked since l989 he earned more than the previous year, and from 1990 to 2003, he was earning at least $25,000 per year. Defendant also discussed his job search efforts and his future plans. He claimed he began his job search in 2009, when their youngest child was in first grade. Defendant testified he contacted four printing press companies and two car dealerships, and submitted a total of ten applications. Defendant said he relied on "word of mouth" referrals, and did not look at online employment sites because, in his words, "I don't do the computer." He stated his prior resumes had been handwritten, but he was "trying to learn" how to use computers. When asked what skills he required to obtain re-employment in the printing field, defendant asserted that he already possessed the necessary training and did not need to update his skills.

Defendant began working at Kelley Karpets on March 8, 20ll, a few weeks before trial. He did not intend to immediately seek another position, and planned to stay at Kelley Karpets. As of the April 25, 20ll trial, defendant had received about $14,000 in pendente lite spousal support from plaintiff pursuant to their agreement that she pay him $500 per week.

Don Barton, the owner of Kelley Karpets, testified on defendant's behalf. He was personal friends with defendant, and had known him since junior high school. He denied paying defendant "under the table," as plaintiff had suggested. Barton also described defendant's role at Kelley Karpets, and stated that he did not expect to pay defendant significantly more than his current earnings. Barton was not optimistic about defendant's prospects for advancement within Kelley Karpet, in part, because defendant lacked computer skills.

The court awarded defendant, among other things, $942 per week in permanent alimony, and an additional amount of $212 per week in rehabilitative alimony for four years. The court also calculated child support in accordance with the parties' stipulations, which agreed to the use of the shared guidelines worksheet for child support, and designated defendant the parent of alternate residence with at least 120 overnights per year. The court deviated from the guidelines, however, setting defendant's child support obligation at $50 per week. The court declined to award counsel fees to either party. Both parties appealed.

On appeal, plaintiff argues the court erred in: (1) awarding defendant rehabilitative alimony; (2) the amount of the permanent alimony award; (3) deviating downward from the child support guidelines; and (4) denying plaintiff counsel fees. In his cross-appeal, defendant challenges the permanent alimony award as insufficient, in particular, arguing the court should have reduced plaintiff's monthly budget for calculating alimony. Defendant also asserts he was entitled to alimony arrears from the date of plaintiff's complaint and plaintiff should have been compelled to obtain life insurance to secure her alimony obligation. He further asserts as error the court's denial of a counsel fee award to him.

III.

A. Rehabilitative ...


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