November 27, 2013
JIHAD SLIM, Plaintiff-Respondent,
LINA SLIM, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 de novo." D'Agostino v. Maldonado, __N.J. __ (Oct. 3, 2013) (slip op. at 15); Parish, supra, 412 N.J.Super. at 47-48.
"The Legislature has left applications to modify alimony to the broad discretion of trial judges." Storey v. Storey, 373 N.J.Super. 464, 470 (App. Div. 2004). "[T]he court may make such order as to the alimony or maintenance of the parties . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, " and "[o]rders so made may be revised and altered by the court from time to time as circumstances may require." N.J.S.A. 2A:34-23. Thus, alimony obligations, whether set in judicial orders or parties' agreements, "are always subject to review and modification on a showing of 'changed circumstances.'" Lepis v. Lepis, 83 N.J. 139, 146-49 (1980) (citation omitted).
An "increase or decrease in the supporting spouse's income" is a recognized "changed circumstance." Id. at 151. Nonetheless, "'[i]ncome may be imputed to a party who is voluntarily unemployed or underemployed.'" Gnall v. Gnall, 432 N.J.Super. 129, 158 (App. Div. 2013) (citation omitted).
"When an alimony obligor changes career, the obligor is not free to disregard the pre-existing duty to provide support." Storey, supra, 373 N.J.Super. at 469. In Storey, we ruled that career changes were governed by the standard adopted for "'unanticipated early retirement, or any other voluntary life style alteration.'" Id. at 469-70 (emphasis omitted)(quoting Deegan v. Deegan, 254 N.J.Super. 350, 352 (App. Div. 1992)). That standard requires the court to determine first "whether the obligor's decision is 'reasonable' under the circumstances." Ibid. (quoting Deegan, supra, 254, N.J.Super. at 357-58). Then, "in order to obtain a reduction in alimony based on current earnings, an obligor who has selected a new, less lucrative career must establish that the benefits he or she derives from the career change substantially outweigh the disadvantages to the supported spouse." Id. at 468.
Factors relevant to "reasonableness and relative advantages" include
"the reasons for the career change (both the reasons for leaving prior employment and the reasons for selecting the new position); disparity between prior and present earnings; efforts to find work at comparable pay; the extent to which the new career draws or builds upon education, skills and experience; the availability of work; the extent to which the new career offers opportunities for enhanced earnings in the future; age and health; and the former spouse's need for support."
[Id. at 470.]
Further, "courts should be guided by the factors the Legislature has identified as relevant to alimony" under N.J.S.A. 2A:34-23b, under which "[r]easons such as lack of work in one's field, health condition, [and] the need to care for a child . . . are entitled to significant weight." Id. at 471. "In contrast, reasons such as a desire for a less demanding lifestyle, a new relationship or better working conditions, while rational and entitled to consideration as the trial judge deems appropriate, are entitled to less weight." Ibid.
Defendant argues that the judge failed to apply the analysis required by Storey. In fact, the judge cited the guidelines and quoted extensively from Storey in his order consolidating plaintiff's motion for the plenary hearing. Although the judge did not again cite Storey in his opinion, he considered the Storey factors.
First, the judge considered "the reasons for the career change, " including "both the reasons for leaving prior employment and the reasons for selecting the new position." Id. at 470. The judge noted plaintiff's multiple, related reasons for both decisions, including "the changes in the medical profession, " "plaintiff's most recent experience in attempting to maintain an independent medical practice, " the increase of his work hours "from approximately 60-70 hours to 90 hours per week, " "the opportunity to secure a stable position at St. Michael's with more reasonable hours" which would enable him "to spend more time with the children" and "guard his health, " and his age.
The judge also considered the "disparity between prior and present earnings." Ibid. The judge noted plaintiff's annual earnings from 2006 to 2011 ranged from $540, 217 and $683, 945.The judge contrasted his present earnings of $202, 800, plus additional earnings from lecturing which would increase his income to $275, 000 to $300, 000 per year.
Regarding "efforts to find work at comparable pay" and "the availability of work, " ibid., the parties and the judge focused on plaintiff's ability to continue earning his prior income from the combination of St. Michael's, private practice, and lecturing. The judge observed that plaintiff's private practice with his former partner was closed after dispute and litigation. The judge noted that plaintiff started a solo practice, which ceased to be viable due to changes in billing practices; the reduction in the number of beds and thus patients at St. Michael's; and his increased time obligations to St. Michael's. The judge acknowledged that, to supplement his income, plaintiff "increased his teaching efforts, his level of lectures and research, " and began lecturing three times per week, compared to once a month at the time of the divorce.
Although defendant contends it is not the most lucrative use of his skills, it is undisputed that plaintiff's promotion to Chief of the Division of Infectious Diseases "draws or builds upon [his] education, skills and experience." Ibid. As the judge found, plaintiff "is pursuing his dedication to the profession" and to mentoring and training new doctors.
There was no testimony that "the new career offers opportunities for enhanced earnings in the future." Ibid. Plaintiff testified that his new position required him to free himself from other work so he could concentrate on being chief. His new position would restrict his ability to work at other hospitals, bill patients, and have a private practice.
The judge also considered the parties "age and health." Ibid. The judge noted that plaintiff, born in 1955, was fifty-six and had physical and mental health consistent with that age. The judge noted that "[o]ne may decrease his or her workload as one ages."
Finally, the judge considered "the former spouse's need for support." Ibid. As discussed below, the judge found that defendant's needs were inflated, and that she could earn substantial investment income even if she did not work.
Thus, the judge considered all of the pertinent Storey factors. The judge also discussed each of the statutory factors under N.J.S.A. 2A:34-23b, as required by Storey, supra, 373 N.J.Super. at 471. The judge then explicitly found that plaintiff's decision to accept the new position was "reasonable, " the first finding required under the Storey standard. Id. at 469.
The judge did not explicitly find that "the benefits [plaintiff] derives from the career change substantially outweigh the disadvantages to the supported spouse." Id. at 468. However, the judge found that plaintiff's acceptance of the new position was "fair, " "appropriate" and "reasonable taking into account the Plaintiff's age and given the Plaintiff's desire to reduce his hours to meet his family needs and guard his health." The judge took "into account the impact the reduction in Plaintiff's income would have on his ability to pay alimony of $160, 000 per year, " and the resulting reduction below the marital standard of living. "[G]iving due consideration to the above factors, the Plaintiff's ability to pay and the Defendant's needs, " the judge concluded "that it is reasonable that the Plaintiff's alimony [obligation] be reduced."
The judge's findings clearly indicate that he weighed "the advantages to the supporting spouse" against "the disadvantages to the supported spouse." Ibid. Given the judge's familiarity with Storey, his consideration of the Storey criteria, his finding of reasonableness and his weighing of the advantages and disadvantages as in Storey, we are unwilling to assume that the judge ignored Storey's requirement that the advantages must "substantially outweigh" the disadvantages.
Before we consider whether the judge's conclusion can be upheld under Storey, we must first address defendant's particular challenges to the judge's analysis.
Defendant stresses that plaintiff entered his new position voluntarily, unlike the involuntary termination in Dorfman v. Dorfman, 315 N.J.Super. 511 (App. Div. 1998). However, in Storey, we "rejected 'bright line' standards that base modification solely on 'voluntariness, ' 'fault, ' or 'good faith.'" Storey, supra, 373 N.J.Super. at 469 (quoting Deegan, supra, 254 N.J.Super. at 355-57). Instead, we ruled that "[e]ach case requires a careful evaluation of 'reasonableness' and 'relative advantages' under the totality of the circumstances." Id. at 472; see Kuron v. Hamilton, 331 N.J.Super. 561, 570-71 (App. Div. 2000). Under that analysis, plaintiff resembles the plaintiff in Dorfman, an accountant who properly accepted lower paying work as an accountant because that "employment [was] consistent with [his] skills and experience." Dorfman, supra, 315 N.J.Super. at 516-17. Plaintiff does not resemble the plaintiff in Storey, a computer programmer earning $110, 000-per-year who became a massage therapist earning $300 per week; given his "shift to a job that does not draw on prior skills and experience, " he did not qualify for a reduction in alimony. Storey, supra, 373 N.J.Super. at 468, 472.
Moreover, the judge credited plaintiff and found he took the new position in good faith. As defendant notes, a finding of good faith does not preclude a finding of voluntary underemployment. E.g., Lynn v. Lynn, 165 N.J.Super. 328, 340 (App. Div.), certif. denied, 81 N.J. 52 (1979). Nevertheless, a finding of good faith remains highly relevant. Kuron, supra, 331 N.J.Super. at 571-72; see also Silvan v. Sylvan, 267 N.J.Super. 578, 581-82 (App. Div. 1993). If an obligor takes a lower-paying position in bad faith to reduce alimony payments, courts have no hesitancy in denying a reduction. E.g. Robins v. Robins,
106 N.J.Eq. 198, 200-01 (E. & A. 1930); Dilger v. Dilger, 242 N.J.Super. 380, 389 (Ch. Div. 1990).
Defendant argues there was no evidence or expert testimony to support the judge's conclusion that changes in the medical profession and billing practices made it more difficult to maintain a private medical practice. To the contrary, plaintiff testified about these changes, and presented a report and testimony from an expert, Stephen C. Chait, CPA. Chait found that as a result of these changes, plaintiff's medical practice experienced a significant decrease in patient revenue, and less income per hour. Chait also testified that the medical profession has experienced pressure from insurance carriers as to their fees, limits have been placed on testing and procedures, and that plaintiff had been able to sustain his income only by working significantly longer hours.
Defendant cites Aronson v. Aronson, 245 N.J.Super. 354 (App. Div. 1991), where we agreed that a dentist "had an obligation, in the face of what he testified were external pressures on the viability of his practice, to attempt to earn more money." Id. at 360-61. Dr. Aronson was working at most only eighteen hours per week, and simply "allow[ed] his practice to continue to diminish unchecked while bemoaning his fate." Id. at 359, 361. By contrast, plaintiff here made significant efforts to earn more money, and did so at the cost of increasing his working hours from sixty or seventy hours per week to ninety hours per week. Those lengthy hours, in turn, helped justify his acceptance of the new position.
Defendant argues that plaintiff's desire to work less hours to spend more time with his young children cannot be considered under Testut v. Testut, 34 N.J.Super. 95 (App. Div. 1955). However, defendant reads Testut too broadly. The defendant in Testut, who was required to pay alimony and child support for his three children, remarried and had a new child. We required an increase in his payments, stating that "[t]he obligation to support [defendant's first] family is paramount and the extent of the obligation measured in dollars is not to be limited or qualified by his remarriage." Id. at 100.
Cases subsequent to Testut have made clear, however, that courts must consider the "remarriage and new obligations" of a supporting spouse in determining alimony. E.g. Sterling v. Sterling, 191 N.J.Super. 547, 553 (App. Div. 1983). Moreover, to the extent Testut prioritizes child support for the children in a "first" family over the children in a "second" family, it is outmoded. See Martinez v. Martinez, 282 N.J.Super. 332, 340 (Ch. Div. 1995). The current Child Support Guidelines provide that "if a divorced parent remarries and has children, that parent's income shall be shared by all children born to that parent" without regard to whether they are in the "first" or "second" family. Pressler & Verniero, Current N.J. Court Rules, App. IX-A § 10a to R. 5:6A at 2587 (2014). Most important, Testut is distinguishable because plaintiff seeks a reduction in alimony not because of the expense of raising his four young children, but because the increase of his working hours to ninety hours per week substantially curtailed his parenting time.
Defendant argues that plaintiff is "required to utilize [his working abilities] to his greatest capacity, even at the expense of bringing his children to school in the morning and putting them to bed at night." While an "obligor must establish that he or she is earning at capacity, i.e., not underemployed, in order to avoid imputation, " Storey, supra, 373 N.J.Super. at 474, no case requires a parent to work ninety hours per week and forego seeing his or her children on a daily basis in order to pay alimony.
As Storey stated, "the need to care for a child" is "entitled to significant weight." Id. at 471. We recognize that plaintiff's wife stays home to care for the children. However, our Legislature has declared
that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.
[N.J.S.A. 9:2-4 (emphasis added).]
That public policy cannot be ignored when the court's involvement is in setting alimony, see N.J.S.A. 2A:34:23b(7), and does not become irrelevant when the children affected by the alimony determination are the children of the obligor and the new spouse. Imposing alimony obligations requiring so many working hours as to deprive an obligor of all or most of his or her opportunity for parenting time with young children runs contrary to that public policy. See Lissner v. Marburger, 394 N.J.Super. 393, 404 (Ch. Div. 2007) (stating that voluntary retirement may justify a reduction in child support "if a father worked sixty hours a week and had little time to rear a child who needed attention").
Here, plaintiff's ninety-hour workweek imposed significant limitations on his parenting time with his four young children. Plaintiff and his wife testified that, most weekdays, he leaves by 6:00 a.m. and arrives home after 9:00 p.m. because he is lecturing, and that he travels to lecture two to three weekends a month, and does other work on the weekend. Plaintiff testified that he sees his children on weekends at breakfast, at bedtime on those weekdays when he is not lecturing, and when they wake up in the middle of the night.
Defendant argues that upholding the judge's decision would open the floodgates for alimony payors to "procreate with reckless abandon" to reduce their alimony obligations. We will not presume, and indeed defendant "does not suggest that the Plaintiff purposefully had many children to avoid his support obligations."
Moreover, "a desire for a less demanding lifestyle, a new relationship, and better working conditions, while . . . entitled to less weight, " are still "entitled to consideration as the trial judge deems appropriate." Storey, supra, 373 N.J.Super. at 471. Here, such desires were appropriate considerations, given that plaintiff was working ninety hours per week, twenty to thirty hours per week more than he was working prior to the divorce.
Plaintiff's new job requires him to work a normal workweek of 37.5 hours. Moreover, the judge found plaintiff would supplement his income by lecturing, resulting in a fifty to sixty hour workweek. We recognize that plaintiff's proposed work hours are less than the sixty to seventy hours he worked prior to the divorce. We need not decide whether such a reduction from the pre-divorce workweek would be permissible based solely on a desire for a less demanding lifestyle, a new relationship, or better working conditions. Nor need we review the judge's unappealed ruling that plaintiff's increased hours, remarriage, four young children, and age did not in themselves justify an alimony reduction. Here, we must review all the factors considered by the judge in granting the motion, including plaintiff's new position and defendant's need for support.
The judge properly considered "the former spouse's need for support." Id. at 470. Defendant cites her current CIS showing expenses of $12, 049 per month, but the judge discredited and found she could not justify some of her "inflated" expenses, including: $1, 053 per month in storage charges in New Jersey and $140 per month in France, costs she admitted "can be substantially reduced or eliminated"; $1, 500 per month on clothes, which she agreed could be reduced; $1, 000 per month on vacations, which the judge found could be reduced; and $200 per month in medical insurance, which she does not have. The judge found her "realistic needs are approximately $8, 000 per month." Given our special deference to Family Part factual and credibility findings, we cannot say these findings are manifestly unsupported by or inconsistent with the evidence.
Defendant emphasizes that her marital lifestyle was lavish. Although "the changed-circumstance inquiry use[s] the marital standard of living as the point of measure in the analysis, " Weishaus v. Weishaus, 180 N.J. 131, 141 (2004), we have authorized examination of the former spouse's need precisely because a career change may justify a reduction of alimony below the levels necessary to sustain the marital lifestyle, Storey, supra, 373 N.J.Super. at 470.
The judge found that plaintiff was sharing the effects of the reduced lifestyle, moving to a more modest house and community, driving a more modest car, and reducing the family budget. Defendant notes that plaintiff had made some of those reductions before his motion based on extreme working hours, but an anticipatory reduction remains a reduction. Defendant points out that plaintiff's current CIS budget slightly exceeds his CIS budget at the time of the divorce, and now contains life insurance and savings components, but that is hardly surprising given the addition of his four children, and does not contradict the judge's finding that plaintiff's "current standard of living is diminished" from his marital lifestyle.
Furthermore, the judge imputed to defendant "a level of [interest] income based on her liquid assets consistent with her past practice of limited risk investments." The judge pointed out that she kept substantial assets in bank accounts which pay no interest, and that by investing $750, 000 of her liquid assets in U.S. Treasury Bonds she would generate an annual income of $21, 750. This imputation was entirely appropriate. "It is clear that in determining an appropriate alimony award, the trial judge may impute income . . . when a spouse's investment decisions cause an asset to generate less income than might be earned via an alternative investment." Tannen v. Tannen, 416 N.J.Super. 248, 261 (App. Div. 2010), aff'd o.b., 208 N.J. 409 (2011); N.J.S.A. 2A:34-23b(11).
Defendant argues that this imputed interest income of $21, 750, combined with the reduced alimony of $75, 000, is insufficient to meet her judge-determined needs of $96, 000 per year because the alimony is taxable to her. Defendant ignores that the judge also appropriately ordered that she "shall receive 20% of [plaintiff's] excess" earnings over his $202, 800 salary. See Walles v. Walles, 295 N.J.Super. 498, 519 (App. Div. 1996). The judge found that plaintiff's total annual earnings would be $275, 000 to $300, 000, resulting in an additional alimony of $14, 400 to $19, 400, enough to cover defendant's taxes.
We reject defendant's claims of error in the judge's analysis. Based upon all of the factors, particularly the increase of plaintiff's workload to ninety hours per week, the effect on his ability to parent his four young children, and his new work opportunity, the judge concluded that plaintiff's decision to accept the new position was reasonable, and that the advantages to plaintiff substantially outweigh the disadvantages to defendant. We cannot say that "the family court's conclusions are clearly mistaken or wide of the mark, " Parish, supra, 412 N.J.Super. at 48. An "'appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with'" requests to modify alimony. Larbig v. Larbig, 384 N.J.Super. 17, 21 (App. Div. 2006) (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). We do not overturn "[a] trial court's rulings on an application to modify alimony, including the decision to impute income, . . . unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Storey, supra, 373 N.J.Super. at 479. We find no such errors.
Defendant next contends that the judge denied her due process because plaintiff accepted his new position during the plenary hearing. The plenary hearing began with three hearing days in March 2012. On April 24, 2012, St. Michael's offered plaintiff the position of Chief of Infectious Diseases. Before the May 7, 2012 resumption of the plenary hearing, plaintiff filed a motion giving notice that he had just been offered a new position, and asking to add James Fallon from St. Michael's as a witness to testify about the new position. The judge granted plaintiff's motion, allowed defendant to depose the witness before he testified, and found no prejudice to defendant.
Family courts have "discretion as to the mode and scheduling of disposition of motions." R. 5:5-4(a). They have similar discretion under Rule 4:17-7 to allow a party to amend its answers to interrogatories, including its listing of witnesses. See Bender v. Adelson, 187 N.J. 411, 428 (2006); see also D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J.Super. 1, 21 (App. Div.), certif. denied, 196 N.J. 346 (2008). Even assuming that the standard for amending a complaint applies to plaintiff's request to add the new position as a basis for his post-judgment motion, we find no abuse of discretion. Similarly, "the granting of a motion to file an amended complaint always rests in the court's sound discretion." Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998). "That 'broad power of amendment should be liberally exercised at any stage of the proceedings, '" including during trial, "'unless undue prejudice would result.'" Ibid. (quoting Pressler, Current N.J. Court Rules, comment on R. 4:9-1 (1998)); see Fluoro Elec. Corp. v. Smith Transp., Ltd., 58 N.J.Super. 287, 294 (App. Div. 1959), aff'd o.b., 32 N.J. 277 (1960).
An amendment to consider the new position was "necessary to subserve the presentation of the merits of the action." Fluoro, supra, 58 N.J.Super. at 294. It had taken years to bring these parties to a plenary hearing to consider whether a reduction in alimony was warranted. Plaintiff's original claim that his work hours had become too long was related to his acceptance of a new position with shorter hours. To deny an amendment and ignore the new position would have resulted in a plenary hearing detached from the actual situation, and in a decision which would be immediately obsolete and challenged by a new round of motions.
Further, plaintiff made the motion promptly after the new position was offered. See R. 4:17-7 (allowing amendment where the information "was not reasonably available or discoverable by the exercise of due diligence" before the end of discovery); see also R. 5:4-2(e). There is no indication of any "design to mislead." D.G., supra, 400 N.J.Super. at 21.
Finally, defendant has not shown "undue prejudice." Kernan, supra, 154 N.J. at 457. The judge's ruling came before the first witness, defendant, had finished testifying. The parties had the majority of the plenary hearing to explore the issues raised by the new position. Defendant argues that she was not given the opportunity to investigate plaintiff's new position, but she identifies no discovery or expert that she was denied. The judge made sure that defendant deposed Fallon before he testified, and both parties questioned Fallon after plaintiff accepted the position. The judge did not abuse his discretion in considering plaintiff's new position.
Defendant challenges the judge's award of attorney fees under Rule 5:3-5(c). "A counsel fee award is left to the sound discretion of the trial court, " and we will disturb it "'only on the rarest occasions, and then only because of a clear abuse of discretion.'" Gnall, supra, 432 N.J.Super. at 165 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
The judge made defendant responsible for $10, 000 of plaintiff's attorney fees. The judge considered all the factors set forth in Rule 5:3-5(c) and Williams v. Williams, 59 N.J. 229, 233 (1971). He emphasized that defendant's "failure to act in a cooperative fashion and to attend mediation [increased] the costs incurred, " and that plaintiff successfully obtained a reduction of alimony based on his new position. Because plaintiff's new position was properly before the judge, "the results obtained" based on that argument were a proper factor to consider in awarding fees. R. 5:3-5(c)(7).
The judge properly acknowledged that defendant "prevailed as to her position that she did not co-habit." Defendant stresses that the judge rejected plaintiff's claim requesting a reduction in alimony solely based on his increased hours, remarriage, four young children, and age. The judge took those factors into account in considering the appropriateness of his acceptance of the new position, however. Moreover, the failure of plaintiff's earlier arguments was presumably a reason the judge required defendant to pay only $10, 000 of plaintiff's $210, 933 in attorney fees. Indeed, the judge "reviewed the billing records of counsel for the Plaintiff in an effort to fix the additional amount of time the Plaintiff was required to expend due to the Defendant's failure to fully cooperate during discovery."
Defendant also critiques the judge's consideration of the financial circumstances of the parties and their ability to pay fees. The judge stated in pertinent part:
The Court finds that both parties have significant income. The Plaintiff has earned between $540, 217 and $683, 945 for the period of 2006-2011. The Plaintiff has accepted a position with St. Michael's with a base pay of $202, 800. The Plaintiff recognizes, however, that he would earn an additional $75, 000 to $100, 000 in lecture and research fees . . . . The Defendant has liquid assets which she holds in a non-interest bearing account or accounts which could be invested in conservative investment vehicles and supplement her alimony of $160, 000.
Defendant contends that the judge based the fees on plaintiff's reduced income of $202, 800 versus defendant's former alimony income of $160, 000, which the judge had just reduced. As set forth above, however, the judge considered the prior and current incomes of both plaintiff and defendant. Further, the judge's opinion and order provided that defendant's alimony income of $75, 000 could increase "up to a maximum of $160, 000, " based on twenty percent of any income plaintiff earns in excess of $202, 800. We find no abuse of discretion.