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Gilford v. Gray-Gilford

Superior Court of New Jersey, Appellate Division

August 9, 2013

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


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.


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.


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 advised defendant to get her own cell phone plan and stopped paying a variety of other expenses because "[he] didn't have the money."

Plaintiff further stated that both children had special needs. His younger son required constant attention, while his older son was capable of functioning on his own to a much greater degree.

Defendant testified that she worked at JFK Medical Center in Edison before and immediately after the parties were married and contributed to the parties' "shelter expenses." She confirmed the parties' agreement, specifically, when "[they] start[ed] having kids, [defendant] would not work full-time, . . . possibly on the weekends, " so that the children would not be placed in daycare. After their first child was born, she and plaintiff agreed that "[she] would go part-time." Over the next few years, defendant worked alternate Sundays at the hospital, making roughly $300 per day.

After plaintiff filed for divorce, defendant sought to increase her income "[b]ecause [plaintiff] was not paying or helping to pay the bills." Defendant confirmed that throughout the course of the marriage, plaintiff paid all household expenses and shelter costs, with defendant paying only for her car, gas, and auto insurance. Plaintiff would pay for the children's clothes and medical expenses, his car maintenance, utilities, shelter expenses, taxes, and food, giving defendant between $200 and $300 per week to shop for groceries for the family.

However, after filing for divorce, plaintiff's contributions ceased; he told her, "[y]ou have a job, go take it out of your money." Defendant became responsible for the majority of the children's school, clothing, and medical expenses. She also testified that on a particularly hot August evening, plaintiff "took . . . the fuse box to the air conditioning unit from outside of the house" to prevent defendant and the children from using the air conditioning unit. When she questioned plaintiff, he said, "if you want the air conditioning, then you can pay for it."

Defendant sought other employment to supplement her $42 per hour, part-time position with JFK Hospital. She began working part-time for Comfort Care, making $35 per hour providing home nursing care. Defendant testified that neither position provided holiday time, vacation time, sick time, or health insurance; if she did not work, she was not paid. Defendant's combined 2011 earnings were approximately $31, 000.

Contrary to plaintiff's testimony, defendant reported the union had called plaintiff with work opportunities, and she heard of other opportunities from friends. However, when she encouraged plaintiff to consider these, he told her to "mind [her] own business, " and reported he was "not working until after [the] divorce." She acknowledged that plaintiff had done substantial work on both the Lambert Circle and Irving Avenue homes.

Defendant was now living with her parents, both of whom had significant health problems, and her two brothers, one of whom also had physical and mental health concerns. Despite these issues within the household, defendant reported her mother is "[a]ways" available to help care for defendant's sons. Although hiring a babysitter was a possibility, defendant stated that her children required a more costly special-care babysitter. Defendant admitted she and one of her brothers would inherit the home after their parents' deaths. She also acknowledged her father had established an IRA for her and the children.

Defendant testified that her younger son would never be able to live independently. In her opinion, even a permanent alimony award of $25, 000 annually, when paired with her income, might be insufficient to provide for her financial needs and those of the children. Defendant sought fifty percent of the proceeds from the sale of the Lambert Circle home.

Cross-examination, however, revealed several discrepancies in defendant's claimed monthly expenses. For example, she claimed in her Case Information Statement (CIS) monthly expenses of $9715; yet, it was clear that the combined income of the parties never consistently would have provided for such support. Defendant acknowledged some of the CIS figures might be inaccurate.

The trial judge entered a final JOD on March 20, 2012, together with a comprehensive written statement of reasons. We focus only on the judge's rationale regarding the three issues on appeal.

Citing the factors set forth in N.J.S.A. 2A:34-23.1, the judge rejected plaintiff's contention that he was entitled to a greater share of the net proceeds of the Lambert Circle home because it was "undisputed" that, shortly after purchasing the Irving Avenue property, "it became the marital home, and that since 1996 both parties worked toward and contributed towards both the Irving Avenue property as well as the successor property on Lambert Circle." The judge concluded "that from 1996 to 2012, a period of sixteen years, the Irving Avenue and Lambert Circle properties were the marital property, " since both parties "lived there and dedicated their full efforts to improving these properties . . . while raising two special needs children." Accordingly, the judge determined each party was entitled to a fifty percent share of the net proceeds.

Regarding alimony, the judge noted that, in addition to working as a union pipefitter, plaintiff earned a variable annual income as a substitute evening instructor for the pipefitters' union, and had many unutilized marketable skills, including the ability to read blueprints, plan projects, do physical work, and perform a variety of home repairs and improvements. In the years immediately preceding trial, the judge found plaintiff's annual income had "drastically" decreased, as evinced by his tax statements introduced at trial, which reflected the following gross income:


$98, 175


$96, 910


$100, 513


$81, 347


$66, 972

The judge found defendant was a college-educated registered nurse for more than seventeen years. When the parties were first married she was working full-time, however, "[p]ursuant to an agreement between the parties, once their first child was born, she . . . switch[ed] to part-time so that they would not have to utilize day care." Since the children were born, defendant had only worked every other weekend, but, during the litigation, she had increased her income by working as a home health aide. Leading up to and during the trial, defendant had lived with her parents, who were in their eighties and ha[d] their own financial and medical challenges." The children's special needs were fully set forth in the judge's written statement of reasons, and he noted the children's needs "weigh[ed] very heavily on the court's determination as to alimony, and specifically as it relates to [defendant's] ability to earn anything more than the $30, 000 she ha[d] been earning over the last year or so."

Referencing the Guidelines for imputing income, see Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to Rule 5:6A, note 12 at 2550-51 (2013), the judge declined to impute significant additional income to defendant. The judge further found that "[s]ince the [c]omplaint was filed, defendant was largely cut off from her husband. He paid the minimum roof expenses, but refused to provide her any money for expenses, and at one point told her that he wouldn't keep the air conditioning on unless she paid the electric bill." As a result of this behavior, the judge found that defendant was forced to "take every available day at the hospital and pick up a second job doing home health care, " leaving her "only one day every two weeks when she neither has work [n]or has to take care of the boys." The judge found this was a "monumental task, " and consequently declined to impute the $42, 000 annual income suggested by plaintiff, instead, finding "$34, 000 [was] the most defendant can reasonably be expected to earn."

On the other hand, the judge found plaintiff's testimony regarding the economic downturn affecting pipefitters was "unreliable, " since plaintiff was not qualified to predict future industry prospects. More importantly, the judge found it "clear . . . that [plaintiff] has purposely done absolutely nothing to replace any income caused by [the] slow-down at his employer ..... Admittedly he has no interest and has made no efforts to acquire side jobs, despite the fact that . . . others have asked about his availability." These findings led the judge to the "inescapable conclusion . . . that plaintiff's diminution of income [wa]s at least partially 'divorce planning.'" The judge imputed annual income of $94, 000.

Having established these figures for child support and alimony purposes, the judge found plaintiff's current economic needs were undeterminable, as he had not submitted an updated CIS since instituting the divorce in March 2010. The judge also rejected defendant's claim that her monthly expenses exceeded $9000 per month, finding an amount between $6000 and $7000 was more reasonable. The judge also rejected plaintiff's contention that defendant's anticipated rental expenses were inaccurate because she had the option of living with her parents and paying no rent.

[P]laintiff's position in this regard is not only untenable, but heartless and outrageous. The court must ask, rhetorically, doesn't . . . defendant have enough 'on her plate' with her work responsibilities and caring for [her two sons] without the prospect of having to take care of her parents . . . and her mentally handicapped brother? It seems clear that plaintiff's position is that defendant deserves no quality of life whatsoever.

Citing the statutory factors governing alimony, N.J.S.A. 2A:34-23b, the judge concluded, "trying to balance the inequities given the insufficient pool of money to maintain the lifestyle, the amount of $25, 000" suggested by defendant was "eminently fair." This award "[would] provide defendant with total taxable income of $57, 000 and plaintiff $79, 000." While the judge acknowledged the length of the parties' "marriage teeters between mid[-] and long[-]term, " he concluded that the parties' younger son's condition, which would likely render him permanently dependent, "in conjunction with all other factors, " warranted a permanent alimony award, rather than the limited term suggested by plaintiff.

After reiterating the factors governing an award of attorney's fees in family actions, the judge found "each counsel's certification and billing statements bear out their fee." However, he noted the "absolute unreasonableness of the positions taken by plaintiff in terms of alimony and equitable distribution, " which included: plaintiff's contention that an annual income of $67, 000 should be imputed to him, when throughout the marriage he "earned nearly $30, 000 higher per year"; an annual income of greater than $34, 000 should be imputed to defendant, despite her current work schedule and responsibilities to the children; defendant's financial needs were overstated because she has the opportunity to live rent-free with her elderly parents; and plaintiff was entitled to seventy five percent of the sale proceeds from the Lambert Circle home, "despite the fact that the parties lived . . . as husband and wife for over 13 years, and equally contributed all of their efforts to the homes."

The judge concluded "the need for trial . . . was completely created by plaintiff maintaining untenable and unreasonable positions, " which "were not taken in good faith." Accordingly, the judge awarded defendant $33, 320 in fees and costs.


The scope of appellate review of trials in the Family Part is particularly limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (citation omitted). "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Id. at 412 (citations and internal quotation marks omitted) (alteration in original). We accord particular deference to the judge's factfinding because of "the family courts' special jurisdiction and expertise in family matters." Id. at 413.

However, when "the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations and internal quotation marks omitted). "Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (citations and internal quotation marks omitted).

"A Family Part judge has broad discretion in setting an alimony award and in allocating assets subject to equitable distribution." Clark v. Clark, 429 N.J.Super. 61, 71 (App. Div. 2012) (citation omitted). "Of course, [as to alimony] the exercise of this discretion is not limitless, and is "frame[d]" by the statutory factors set forth in N.J.S.A. 2A:34-23b. Steneken v. Steneken, 367 N.J.Super. 427, 434 (App. Div. 2004), aff'd as mod. 183 N.J. 290 (2005). Regarding equitable distribution, the statutory factors enumerated in N.J.S.A. 2A:34-23.1, "used in concert with the facts of each case, " inform the otherwise "broad discretion" accorded the trial judge. Id. at 434-35. "The award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court, " Addesa v. Addesa, 392 N.J.Super. 58, 78 (App. Div. 2007), as guided by the standards set forth in N.J.S.A. 2A:34-23 and our court rules governing attorney's fees.


Plaintiff contends that, because he furnished a "significant amount" of the down payment for the Lambert Circle home, the judge failed to properly weigh the statutory factors regarding its equitable distribution upon sale, in particular N.J.S.A. 2A:34-23.1c and i ("[t]he income or property brought to the marriage . . . by each party, " and "[t]he contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, . . . as well as the contribution of a party as a homemaker").

"It is well-settled that, upon dissolution of a marriage, New Jersey law allows for 'an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by . . . either [party] during the marriage . . . ." Genovese v. Genovese, 392 N.J.Super. 215, 223 (App. Div. 2007) (quoting N.J.S.A. 2A:34-23h). Equitable distribution must be "responsive to the concept that marriage is a shared enterprise, a joint undertaking, that in many ways is akin to a partnership. Only if it is clearly understood that far more than economic factors are involved, will the resulting distribution be equitable within the true intent and meaning of the statute." Steneken, supra, 183 N.J. at 299 (quoting Rothman v. Rothman, 65 N.J. 219, 229 (1974)). "The entitlement to marital property is not dependent on economic contributions . . . . Less tangible efforts are recognized as equally valuable to the overall prosperity of the familial entity." Carr v. Carr, 120 N.J. 336, 347 (1990).

Here, the judge clearly considered the statutory factors and the testimony of the parties which was largely undisputed. He concluded that although the real estate previously owned by plaintiff alone was the source of the down payment on the Lambert Circle home, defendant's efforts at both properties were significant, and the homes were the result of the parties' joint enterprise. We find no mistaken exercise of the judge's discretion in awarding defendant fifty percent of the proceeds from the sale of the Lambert Circle property.


Plaintiff contends "both the duration of the alimony . . . and the amount . . . were in error." Specifically, he contends that the judge "unconscionabl[y] and against the weight of the evidence" imputed income to him but not defendant, relying on erroneous mathematical calculations. Further, plaintiff contends an award of permanent alimony was inappropriate because a thirteen-year marriage is not a long-term marriage.

"Income may be imputed to a party who is voluntarily unemployed or underemployed." Golian v. Golian, 344 N.J.Super. 337, 341 (App. Div. 2001). The judge should consider "whether the [spouse] has just cause" for voluntarily remaining unemployed or underemployed. Caplan v. Caplan, 182 N.J. 250, 268 (2005). "Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey v. Storey, 373 N.J.Super. 464, 474 (App. Div. 2004).

Here, contrary to plaintiff's contention, there is direct evidence – defendant's testimony -- supporting the judge's finding that "plaintiff's diminution of income [wa]s at least partially 'divorce planning[.]'" Plaintiff correctly notes that the amount of income imputed to him, i.e., $94, 000 per year, exceeds the average of the five years cited by the judge. However, the imputed income amount is less than the average of the three years preceding the filing of the divorce complaint. Given the judge's conclusion that plaintiff planned the diminution, it was not a mistaken exercise of discretion for the judge to choose an amount of imputed income other than the arithmetic mean of the last five years.

Alimony is awarded to give a financially dependent spouse "'a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage.'" Mani v. Mani, 183 N.J. 70, 80 (2005) (quoting Stiffler v. Stiffler, 304 N.J.Super. 96, 98 (Ch. Div. 1997) (citation omitted)). It is "neither a punishment for the payor nor a reward for the payee, " Mani, supra, 183 N.J. at 80 (citations omitted), and, therefore, must be based on "actual economic dependency." Lepis v. Lepis, 83 N.J. 139, 155 (1980).

Here, the judge enumerated the factors set forth in N.J.S.A. 2A:34-23b. Then, "trying to balance the inequities given the insufficient pool of money to maintain the lifestyle, " he determined a permanent award of $25, 000 per year was fair. While the judge acknowledged the length of the marriage "teeter[ed] between mid[-] and long[-]term, " he found the parties' younger son's significant disabilities, rendering him "un-emancipatable" -- and therefore permanently dependent on defendant for care -- "in conjunction with all other factors, " warranted a permanent award.

Plaintiff correctly points out the judge made an arithmetical error, stating the award would leave plaintiff $79, 000 per year, and defendant $57, 000 per year.[2] That miscalculation is unimportant, because the level of defendant's need was amply supported by the record.


Plaintiff argues the judge erred in awarding defendant attorney's fees because the trial did not result "exclusively" from plaintiff's assertion of "'unreasonable and untenable' positions." Plaintiff further notes that defendant did not "prevail[]" on all issues, and several issues addressed at trial were "necessitated by [defendant]'s position[s]."

Pursuant to N.J.S.A. 2A:34-23,

[w]henever [an] . . . application is made to a court which includes an application for . . . counsel fees, the court shall determine the appropriate award for counsel fees, if any, . . . consider[ing] the factors set forth in [Rule 5:3-5], the financial circumstances of the parties, and the good or bad faith of either party.

Rule 5:3-5(c), in turn, permits the award of counsel fees to "any party successful in the action, on any claim for divorce, . . . support, alimony, . . . [and] equitable distribution, " based upon consideration of several factors, including: "the financial circumstances of the parties"; "the ability of the parties' to pay their own fees or to contribute to the fees of the other party"; "the reasonableness and good faith of the positions advanced by the parties both during and prior to trial"; and "any other factor bearing on the fairness of an award."

Here, the judge specifically found that plaintiff's positions with respect to alimony, equitable distribution, imputation of income, and defendant's continued residence with her significantly disabled family members, while caring for the parties' two special needs children, were "absolute[ly] unreasonable" and demonstrated "plaintiff's position . . . that defendant deserves no quality of life whatsoever." Based upon these findings, it mattered little that defendant did not prevail on all her claims. We cannot conclude that the judge mistakenly exercised the broad discretion accorded him in awarding defendant counsel fees.


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