December 27, 2012
ELIZABETH CONNAUGHTON, PLAINTIFF-RESPONDENT,
BRIAN CONNAUGHTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2822-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 14, 2012
Before Judges Graves, J. N. Harris, and Haas.
Plaintiff Elizabeth Connaughton and defendant Brian Connaughton were married on October 14, 1995. They have one child, a son, who is now twelve years old. Following a five-day trial, a judgment of divorce was entered on August 11, 2010, and an amended judgment of divorce was entered on September 17, 2010. On appeal, defendant argues the trial court erred in awarding permanent alimony to plaintiff in the amount of $50,000 per year. Defendant also claims the court abused its discretion by ordering him to be solely responsible for the fees of plaintiff's relocation and custody expert. For the reasons that follow, we affirm.
The parties began dating in 1992 while attending graduate school at the Portfolio Center in Atlanta, Georgia. The Portfolio Center is an advertising and design school specializing in creative advertising, graphic design, art direction, copywriting, illustration and photography. Both parties obtained jobs in the advertising field after graduating in December 1992.
Plaintiff was initially employed as a junior art director with Ad Works in Washington, D.C. Her salary was approximately $28,000 per year. Defendant's first position was with W.B. Doner in Baltimore, Maryland, as a junior copywriter. His salary was comparable to plaintiff's.
About six months later, plaintiff accepted a position with Grey Advertising in New York City, which paid approximately $32,000 per year. The parties continued their relationship, with plaintiff in New York and defendant in Baltimore, until September 1994 when defendant obtained a job in New York City at the Ad Store. His salary was approximately $30,000. At that time, plaintiff was employed as a junior art director at BBDO earning between $35,000 and $38,000 per year. In January 1995, defendant obtained a position as a junior writer earning around $40,000 per year.
In June 1995, defendant accepted a position as a creative director at W.B. Doner, his former employer, in Cleveland, Ohio. Defendant's salary was $75,000 per year. The parties relocated to Cleveland, and plaintiff accepted a position as an associate creative director with the same company, earning $50,000 per year. While the parties were living in Cleveland, they were married on October 14, 1995, in Greenville, South Carolina, where plaintiff was born and raised.
A year later, the parties moved back to New York City. Defendant obtained employment with J. Walter Thompson, earning approximately $85,000 per year, and plaintiff began doing freelance work. At trial, plaintiff testified that from that point forward she has only done freelance work, which includes designing logos, brochures, business cards, and "things of that nature."
In December 2000, when the parties' son was born, defendant was working as an associate creative director at Saatchi & Saatchi in New York, earning approximately $185,000 a year. During her pregnancy, plaintiff worked about ten hours a week for a trade magazine, and she returned to work on a limited basis after their son was born. Plaintiff also obtained a Master's Degree in Fine Arts from Sarah Lawrence College in 2001.
After the terrorist attacks of September 11, 2001, the parties wanted to "slow things down" and decided to move to Greenville, South Carolina. Plaintiff testified defendant's work schedule was "very demanding," and they were hoping to simplify their lives, "and spend more time together as a family."
Following their move to Greenville in 2002, the parties started their own advertising agency, Bottle Rocket Creative (Bottle Rocket). The parties were the only employees and operated the business out of plaintiff's parent's basement until they purchased their own home. However, the business did not develop the way the parties had envisioned, and, in 2006, they decided to close their business and return to the New York area.
In August 2006, defendant accepted a position as a vice president and associate creative director at Digitas in New York City, and he relocated to New Jersey with the expectation that plaintiff and their son would join him when they sold their house in South Carolina. In February 2007, the parties purchased a home in Maplewood, New Jersey, and plaintiff and the parties' son moved to Maplewood in July 2007. After joining her husband in New Jersey, plaintiff did some part-time freelance work, while defendant continued with his employment at Digitas, working long hours and traveling extensively.
Defendant's W-2 income for 2007, his first full year at Digitas, was $160,728. In addition, based on his performance in 2007, defendant received a bonus in the amount of approximately $35,000, which was paid during the first quarter of 2008. Defendant testified that in 2008, the year plaintiff filed for divorce, his gross pay from Digitas was $228,950.
Plaintiff filed for divorce on June 11, 2008, and while the divorce action was pending, she sought permission to relocate to Greenville, South Carolina, with the parties' son. In support of her application, plaintiff stated that she was the primary custodial parent, and that their son would benefit from the move because her family and relatives would provide a better support system in South Carolina. Defendant opposed the application. He argued that he and his wife were both "active and involved parents on a daily basis," and it would not be in their son's best interest to move from New Jersey to Greenville, South Carolina.
The court suggested the appointment of a joint expert to conduct a relocation evaluation. However, defendant was unwilling to be bound by the findings of a joint expert, and each party obtained their own expert. Plaintiff retained Dr. Mathias Hagovsky and defendant hired Dr. Edwin Rosenberg.
Dr. Hagovsky determined plaintiff was the primary custodial parent and recommended she be permitted to relocate to South Carolina with the parties' son. Dr. Rosenberg also supported plaintiff's request, and defendant ultimately consented to the move. Accordingly, plaintiff and the parties' son were allowed to relocate to Greenville, South Carolina, in September 2009, prior to the trial.
During the trial on January 5, 2010, plaintiff testified she earned approximately $17,000 in 2009 doing freelance work on a part-time basis. Plaintiff testified that she billed at the rate of $85 per hour, and she was able to bill eight to ten hours a week when she was busy. However, she also said there were weeks when she did not have any work.
Each party presented expert testimony regarding plaintiff's earning capacity. Plaintiff's expert, Dr. David Stein, concluded that plaintiff had the ability to earn between $26,000 (part-time) and $52,000 (full-time). He admitted, however, that he was not aware that plaintiff did some freelance work and also worked for Bottle Rocket after the parties' son was born.
Defendant's expert, James Pascuiti, concluded that plaintiff was "capable of working in the Competitive Labor market in a Freelance or salary position as an Art Director and/or Creative Director." He determined that plaintiff was "capable of earning a consulting income of $125 per hour." He also testified that plaintiff had the ability to earn an annual income of $75,000 to $95,000, "if she were to pursue a full-time position working in the Greenville/Spartanville area."
The trial court found that Pascuiti's testimony was not persuasive for a number of reasons. First, the court noted he relied on wage data provided by Salarywizard.com, which is a less reliable source of information than the United States Department of Labor. Second, the court found that some of the prospective employment opportunities listed in his report were "not realistic" because they were not within commuting distance of Greenville, and other jobs were "not credible" because they "did not have contact information." The court also determined that Pascuiti's salary range ($75,000 to $95,000) was "incredibly high given that plaintiff [was] living in Greenville, South Carolina." Thus, the court rejected Pascuiti's testimony, and it imputed income to plaintiff in the amount of $42,000 a year. The court explained that the amount was on "the high end of Dr. Stein's range" because he was not fully informed as to plaintiff's work history, "especially over the last five to seven years."
With regard to alimony, the court noted that plaintiff sought permanent alimony in the amount of $65,000 per year, whereas defendant argued that term alimony was appropriate. After reviewing the statutory factors enumerated in N.J.S.A. 2A:34-23(b), the court awarded plaintiff permanent alimony in the amount of $50,000 per year. Additionally, the court found that defendant's conduct during the litigation "was not always forthcoming," and defendant was ordered to pay seventy-five percent of plaintiff's counsel fees and to be solely responsible for payment of Dr. Hagovsky's fee.
On appeal, defendant initially argues that the grant of permanent alimony to plaintiff was "a mistaken exercise of judicial discretion that requires reversal." He contends the court failed to consider the statutory factors with "the detail required"; the court made only "superficial observations of the opinions of the employability experts"; and the court "failed to make any meaningful analysis of the lifestyle and needs" of the parties. We do not agree.
In divorce actions, courts may award alimony "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." N.J.S.A. 2A:34-23. Moreover, "courts possess the equitable power . . . to monitor and revise alimony on an ongoing basis, as circumstances may require." Weishaus v. Weishaus, 180 N.J. 131, 140 (2004); see also Lepis v. Lepis, 83 N.J. 139, 145-46 (1980).
"The basic purpose of alimony is the continuation of the standard of living enjoyed by the parties prior to their separation." Innes v. Innes, 117 N.J. 496, 503 (1990). Thus, "the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000).
N.J.S.A. 2A:34-23(b) sets forth twelve, non-exclusive factors that a court must consider in deciding whether to award permanent alimony and, if so, in what amount. The three most important considerations in fixing the amount of an alimony award are: (1) the dependent spouse's needs; (2) the dependent spouse's ability to contribute to the fulfillment of those needs; and (3) the supporting spouse's ability to maintain the dependent spouse at the former standard of living to which the parties had become accustomed prior to their separation. Crews, supra, 164 N.J. at 24.
The scope of our review is limited. When reviewing an alimony award, we consider whether the trial court's findings are supported by sufficient credible evidence present in the record, whether the trial court failed to consider controlling legal principles, and whether the trial court abused its discretion. Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).
In this case, the trial court found that the parties "maintained a middle class lifestyle during the marriage," and that plaintiff needed "some financial assistance from the defendant in order to maintain a reasonably comparable lifestyle." The court also concluded that defendant was the primary source of financial support during the marriage and that he was earning "a significant salary of $195,000 a year plus bonuses and perks." In addition, the court concluded that plaintiff's role as the primary caretaker of the parties' child enabled defendant to successfully pursue his career, and plaintiff would earn significantly less than defendant even if she obtained full-time employment. Based on the parties' circumstances, including the income imputed to plaintiff, the court determined that alimony in the amount of $50,000 per year would allow plaintiff "to maintain a lifestyle that was reasonably comparable to what the parties had during the marriage."
Based on our independent review of the record, we are satisfied the trial court's findings and conclusions regarding plaintiff's need for alimony and defendant's ability to pay alimony are supported by substantial credible evidence, and we find no abuse of discretion or reversible error. Accordingly, the award of alimony to plaintiff in the amount of $50,000 per year is affirmed.
Defendant also claims the court erred in ordering him to pay the fees for Dr. Hagovsky. Pursuant to Rule 5:3-3(i), the court is authorized to allocate expert fees between the parties in matrimonial matters. In such cases, the parties' ability to pay, their good faith, and the fees incurred by both parties are factors to be considered by the court in determining the allocation of fees between the parties. Platt v. Platt, 384 N.J. Super. 418, 429 (App. Div. 2006) (citing R. 5:3-5(c)). "Our review of a trial judge's determination is guided by the abuse of discretion standard." Ibid. There was no abuse of discretion here.
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