NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 30, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1331-02.
Robert T. Corcoran, argued the cause for appellant (Robert T. Corcoran, P.C., attorneys; Mr. Corcoran, of counsel and on
the brief; Sara J. Corcoran, on the briefs).
Laurie L. Newmark, argued the cause for respondent (Townsend, Tomaio & Newmark, L.L.C., attorneys; John E. Clancy, on the brief).
Before Judges St. John and Leone.
Defendant Lina Slim appeals from the order of a Family Part judge granting a motion to reduce the alimony obligation of plaintiff Jihad Slim, and awarding him attorney's fees. We affirm.
The parties were married in 1978. They moved to the United States in 1983, when plaintiff began his employment at St. Michael's Medical Center in Newark. They had no children, and were divorced in 2003. Their Final Judgment of Divorce incorporated a Property Settlement and Support Agreement (Agreement). The Agreement required plaintiff to pay over one million dollars in equitable distribution, including $500, 000 representing half of the value of his private practice partnership with another doctor. It also required plaintiff to pay permanent alimony of $160, 000 per year. The alimony figure was based on plaintiff's 2001 earnings of $506, 000, primarily from his employment in the Division of Infectious Diseases at St. Michael's. No income was imputed to defendant, who worked only six months during the twenty-five-year marriage. The Agreement stated that alimony was terminable only upon death of either party, or defendant's remarriage or cohabitation.
Defendant did not work or seek to work after the marriage. In 2004, she moved to France, where she is not a citizen, and therefore not allowed to work under French law. She has lived in hotels and apartments in Paris and elsewhere in France.
In 2004, plaintiff married Dr. Michelle Borowski. They subsequently had four children, who were between six-years-old and one-month-old at the time of the judge's ruling. Dr. Borowski stopped practicing to care for their young children. Plaintiff continued to work at St. Michael's.
In 2009, plaintiff filed a motion alleging defendant was cohabitating with a man in France. The judge ordered discovery and a plenary hearing. In 2010, plaintiff moved for a reduction of alimony because of his increased working hours. The judge consolidated plaintiff's motions for the plenary hearing, and ordered further discovery.
The judge conducted a plenary hearing in March, May, and June 2012. After three days of the ten-day hearing, plaintiff gave notice that he had been offered the position of Chief of the Division of Infectious Diseases at St. Michael's, at a salary of $202, 800. He accepted that position by the seventh day of the hearing.
On September 26, 2012, the judge issued an order and a thirty-four-page opinion. The judge ruled that defendant was not cohabitating. The judge found that plaintiff's work hours had increased to ninety hours per week, compared with about sixty to seventy hours per week prior to the divorce. However, the judge ruled that plaintiff's increased hours, remarriage, four young children, and age did not in themselves justify an alimony reduction. The judge found a change of circumstances resulting from plaintiff's acceptance of the new position at St. Michael's. The judge found plaintiff's acceptance of the new position was in good faith, and was fair and appropriate considering both the changes in the medical profession and his experience in attempting to maintain an independent medical practice.
In determining the appropriate amount of alimony, the judge considered the factors under N.J.S.A. 2A:34-23b, including plaintiff's age, hours, and children, defendant's inflated needs, and her ability to earn interest income. Given plaintiff's new salary of $202, 800, the judge reduced plaintiff's alimony obligation to $75, 000 per year, and provided that "in the event, however, the Plaintiff earns in excess of $202, 800, the Defendant shall receive 20% of such excess up to a maximum of $160, 000." The judge required plaintiff to provide defendant with proof of his gross income on an annual basis supported by a certified copy of his tax return. The judge ordered defendant to pay $10, 000 of plaintiff's attorney fees.
Defendant appeals. She first challenges the alimony reduction, arguing that it was unjustified by (1) plaintiff's voluntary change in work, (2) unsubstantiated changes in the medical profession, (3) his experience in attempting to maintain an independent medical practice, (4) his desire to reduce his work hours to spend more time with his children and have more free time, (5) her current financial needs, and (6) her ability to earn investment income.
We must hew to our standard of review:
The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." 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." Therefore, an appellate court should not disturb the "factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."
[Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citations omitted).]
Moreover, "[w]e accord particular deference to the judge's factfinding because of 'the family courts' special jurisdiction and expertise in family matters.'" Clark v. Clark, 429 N.J.Super. 61, 70 (App. Div. 2012) (quoting Cesare, supra, 154 N.J. at 413). We may reverse only if there is "a denial of justice because the family court's conclusions are clearly mistaken or wide of the mark." Parish v. Parish, 412 N.J.Super. 39, 48 (App. Div. 2010) (citation and quotation marks omitted). "To the extent that the trial court's decision constitutes a legal determination, we review it ...