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Gilford v. Gray-Gilford

Superior Court of New Jersey, Appellate Division

August 9, 2013

DONALD E. GILFORD, Plaintiff-Appellant,
v.
LAUREN E. GRAY-GILFORD, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 7, 2013.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1386-10.

Mario C. Gurrieri argued the cause for appellant (Dughi, Hewit & Domalewski, P.C., attorneys; Mr. Gurrieri and Richard A. Outhwaite, on the brief).

Marc R. Brown argued the cause for respondent (Wolkstein, Von Ellen & Brown, LLC, attorneys; Mr. Brown and Marisa E. Hovanec, on the brief).

Before Judges Messano and Lihotz.

PER CURIAM.

The final judgment of divorce (JOD) entered after trial in this matter included three provisions challenged on appeal by plaintiff Donald E. Gilford. Specifically, the judge ordered that: the parties, plaintiff and defendant Lauren E. Gray-Gilford, "shall each be entitled to fifty . . . percent of the proceeds in escrow representing the equity in the former marital home"; "[p]laintiff shall pay . . . [d]efendant permanent alimony in the amount of . . . $25, 000 . . . per year"; and defendant "shall be entitled to . . . $33, 320 . . . for attorney's fees."

We have considered plaintiff's arguments in light of the record and applicable legal standards. We affirm.

I.

On March 1, 2010, plaintiff filed his complaint citing irreconcilable differences. N.J.S.A. 2A:34-2i. Defendant's answer conceded the grounds for divorce, but contested all remaining issues. On November 18, 2011, on joint motion by the parties, a consent order was entered permitting plaintiff and defendant to draw $25, 000 and $54, 500, respectively, on their home equity line of credit for the payment of attorney's fees and trial costs arising from the divorce. The consent order expressly provided "[t]he payment of counsel fees and costs . . . shall be without prejudice to the right of either party" to seek counsel fees and costs from the other party. With the exception of parenting time, the parties were unable to resolve the remaining issues before trial.

Plaintiff and defendant were the only witnesses at trial, which commenced on January 17, 2012. At the time, plaintiff was forty-eight years old, and defendant was forty-seven. The parties were married on October 26, 1996, and, shortly thereafter, defendant moved into plaintiff's home located on Irving Avenue in Westfield (Irving Avenue home). Plaintiff purchased the home individually in November 1995 for $130, 000, using funds from the sale of property he individually owned on Grove Street in Westfield (the Grove Street home). Prior to marrying, the parties had lived together in the Grove Street home before moving into the Irving Avenue home in March 1997.

The parties have two sons, one born in September 1999 and the other in August 2001. Both suffer from autism spectrum disorders and have special needs. In June 2003, the family moved into a single-family home located on Lambert Circle in Westfield (the Lambert Circle home).[1]

Plaintiff testified that the parties purchased the Lambert Circle home for $530, 000. The $430, 000 down payment was paid, in part, using plaintiff's savings and equity line of credit taken against the Irving Avenue home. Plaintiff's mother also loaned some funds for the purchase. The Irving Avenue home ultimately sold for $405, 000 in August 2003.

Plaintiff testified that the Irving Avenue home had been maintained and improved through both parties' efforts. Both parties were named on the HUD-1 Settlement Statement when the home was sold. Although plaintiff claimed he procured all funds used in purchasing the Lambert Circle home, he acknowledged defendant's name was listed on the home equity line of credit. The deed for the Lambert Circle home was in both names, and plaintiff and defendant selected the home, and furnished, maintained and renovated it together. Plaintiff's position at trial was that he should receive seventy-five percent of the net sale proceeds from the Lambert Circle home.

Plaintiff worked as a union pipefitter since December 1, 1984, installing automatic fire suppression systems. Over the fifteen years immediately prior to trial, the bulk of his work came from R.L. Dehn Fire Protection (R.L. Dehn), a contractor that bid, in large part, on school construction projects and hired union pipefitters to do the work. Plaintiff testified that since the economic slowdown in 2008, fewer jobs were available, and he needed to be available to R.L. Dehn "on a day's notice" or risk losing work. Maintaining a certain mandatory minimum hours of union work was required to maximize plaintiff's union retirement benefits. As such, although his income diminished drastically in recent years, plaintiff admittedly did not pursue other possible employment opportunities to remain available for union work when called upon, otherwise his union pension and health care benefits would be at risk. Plaintiff emphasized pipe-fitting was a very demanding "physical" job, which he could not see himself continuing beyond the retirement age of fifty-five. Plaintiff also worked as a part-time instructor for the local union, but the amount of work for that position was inconsistent from year to year.

Plaintiff, however, believed that defendant could work more hours and earn more money, noting the average nurse's salary was $74, 650 per year. Plaintiff believed that any alimony award should not exceed ten years' duration or $9, 000 per year.

Plaintiff acknowledged defendant was largely responsible for the children's daily activities, including administering their medications and taking them to their doctors. Plaintiff further acknowledged the parties' mutual agreement was that defendant would be the primary caretaker for the children, while plaintiff provided the bulk of the household income. Throughout the marriage, plaintiff had paid all household expenses except for defendant's automobile expenses. However, subsequent to filing for divorce in March 2010, plaintiff ...


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