Opinion
DOCKET NO. A-4406-14T1
12-22-2016
WENDY RICHARDSON-ATWELL, Plaintiff-Respondent, v. PHILIP B. ATWELL, Defendant-Appellant.
Keith, Winters & Wenning, LLC, attorneys for appellant (Brian D. Winters, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1813-10. Keith, Winters & Wenning, LLC, attorneys for appellant (Brian D. Winters, on the brief). Respondent has not filed a brief. PER CURIAM
In this matrimonial matter, defendant Philip B. Atwell appeals from that part of the May 5, 2015 dual final judgment of divorce (FJOD), which awarded plaintiff Wendy Richardson-Atwell five years of limited duration alimony. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
We derive the following facts from the record. Plaintiff and defendant were married on March 4, 2004. No children were born of the marriage. Plaintiff was unemployed during the marriage. Defendant was employed as a civilian employee with the United States Army, earning approximately $150,000 per year. On May 28, 2010, plaintiff filed a complaint for divorce, and defendant filed a counterclaim on June 30, 2010.
On April 18, 2011, plaintiff filed a motion for pendente lite support. On June 2, 2011, the court ordered defendant to pay $2500 per month for pendente lite support, and also pay for plaintiff's cell phone and car and life insurance, effective April 18, 2011. Sometime thereafter, plaintiff filed a motion in aid of litigant's rights for defendant's failure to pay the pendente lite support. On November 21, 2011, the court entered an order finding defendant in violation of litigant's rights and ordering him to pay pendente lite support in the amount of $581.39 per week via wage garnishment through probation.
Effective December 30, 2011, defendant retired from his job with the Army and began receiving his pension in the amount of $81,108 per year. In 2013, his pension increased to $82,404 per year, and in 2014, it increased to $6970 per month, or $83,640 per year.
Trial began on October 16, 2012. During defendant's direct examination on November 7, 2012, the trial judge became aware that she had a potential conflict of interest, and thus, recused herself and declared a mistrial. The case was assigned to a different judge.
Defendant filed a motion to reduce pendente lite support due to his retirement. On January 3, 2013, the court entered an order reducing pendente lite support to $1500 per month, effective November 1, 2012, and eliminating defendant's obligation to pay for plaintiff's cell phone and car insurance, effective December 1, 2012.
The case was subsequently assigned to a different judge. On April 12, 2013, the judge granted defendant's motion for the trial to proceed based on the transcripts of the trial before the recused judge, but denied his request for entry of a final judgment of divorce and counsel fees. The trial was delayed several times over the next year, generally due to plaintiff's inability to attend for medical reasons.
In the meantime, in 2013, defendant earned approximately $4350 working as a tax preparer and also received his full pension. In August 2013, he obtained employment at a yearly salary of $120,000. For reasons not clear from the record, pendente lite support was reduced to $1250 per month in November 2013.
The trial continued on April 28, 2014, and concluded on July 21, 2014. In a comprehensive, eighty-nine-page written opinion, dated May 5, 2015, the judge first addressed the equitable distribution of marital assets. The judge considered each factor in N.J.S.A. 2A:34-23.1 and awarded plaintiff fifty percent of one-fifth of defendant's pension. Defendant's pension was $6970 per month at the time, so the judge awarded plaintiff $697 per month, or $8364 per year. The judge made other equitable distribution awards that are not pertinent to this appeal. Defendant does not appeal this determination.
Addressing alimony, the judge found that defendant's gross income in 2014, including his pension, was approximately $203,800. The judge did not consider the pension amount in determining alimony. However, because defendant received his entire pension during the litigation, the judge considered the pension in reviewing his pendente lite support obligation under Mallamo.
Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995).
The judge found that plaintiff had approximately $40,000 in various bank accounts at the time she filed the complaint for divorce in May 2010, plus income from social security disability (SSD) payments, workers' compensation payments, and pendente lite support. Plaintiff also produced evidence of the parties' joint lifestyle expenses, which defendant did not dispute.
The judge then considered the fourteen factors in N.J.S.A. 2A:34-23(b), and made the following findings, in pertinent part:
1. The actual need and ability of the parties to pay: Even aside from the pension income that both parties will receive as a result of the equitable distribution of the marital portion of the pension, [defendant] earns more from his current job than [plaintiff] earns in SSD and workers' compensation payment. Given the parties' income and expenses, [plaintiff] does have a need to receive alimony, and [defendant] has the ability to pay alimony.
2. The duration of the marriage or civil union: The parties were married for slightly more than six years.
3. The age, physical and emotional health of the parties: At the time of the entry of this [FJOD], [plaintiff] is [sixty-two] and [defendant] is [sixty-one]. It is undisputed that [plaintiff] suffers from multiple sclerosis. . . .
Wife has been found to be disabled by the Social Security Administration, and is receiving SSD income. . . .
. . . .
[defendant] does not claim that [plaintiff]should be working outside of the home, and the court will not impute income to [plaintiff] in this matter.
4. The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither
party having a greater entitlement to that standard of living than the other:
. . .
In her November 6, 2012 CIS, [plaintiff] indicated that the joint lifestyle expenses during the marriage . . . were $7,731, and that her current lifestyle expenses were at that time $7,169.
[Defendant's] Social Security statement indicates that his taxed Medicare earnings in 2004, the year of the parties' marriage were $103,519[] and those earnings increased gradually over the next six years to $136,836 in 2009.
. . . .
5. The earning capacities, educational levels, vocational skills, and employability of the parties:
. . . .
[Plaintiff's] current SSD check should be approximately $1,495 per month. [Plaintiff's] actual income, excluding the share of [defendant's] pension that she will receive in equitable distribution, is $2,795 per month, or approximately $33,500 per year ($1300 in workers' compensation and $1,495 in SSD).
. . . .
As indicated in the attachment to [defendant's] most recent CIS, [defendant] earns gross income, not including his pension, of approximately $10,000 per month, or approximately $120,000 per year.
. . . .
6. The length of absence from the job market of the party seeking maintenance: [Plaintiff] has not worked since before the parties were married in 2004.
7. The parental responsibilities for the children: There are no children of the relationship.
8. The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income: [Plaintiff] is not working, [defendant] is not contending that [plaintiff] should be working[.]
9. The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities: The parties have no children together. During the marriage, [defendant] was largely responsible for paying marital expenses. There is no evidence that [plaintiff] interrupted her career or an educational opportunity for the benefit of [defendant] or the marriage. [Plaintiff] discontinued employment outside of the home prior to the parties' marriage.
10. The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair: Other than the pension, the [thrift savings plan] and [plaintiff's] bank account at the time of the filing of the [c]omplaint for [d]ivorce, the parties do not have substantial assets subject to equitable distribution. The parties are sharing in the marital portion of their assets on a 50/50 basis.
11. The income available to either party through investment of any assets held by that party: [Defendant] has three rental properties, but the court is satisfied that after actual expenses are paid the properties do not presently return income to [him.]
. . . .
12. The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment: The alimony paid by [defendant] is taxable to [plaintiff], and tax deductible by [defendant.]
13. The nature, amount, and length of pendente lite support paid, if any: Plaintiff's [c]omplaint for [d]ivorce was filed May 29, 2010. The initial pendente lite support [o]rder was entered in this matter on June 2, 2011. [Defendant] paid $2,500 per month in pendente lite support per month, plus [plaintiff's] cell phone and car insurance, through November 2013,[] a period of 17 months. As of November 2013, [defendant] has been paying pendente lite support to [plaintiff] in the amount of $1,250.[] [Defendant] has thus been paying pendente lite support to [plaintiff] for almost four years.
14. Any other factors which the court may deem relevant: None.
November 2013 is incorrect. As per the January 3, 2013 order, defendant paid $1500 per month effective November 1, 2012.
The record does not contain an order reducing pendent lite support from $1500 to $1250 or indicate why there was a reduction. However, defendant does not dispute this reduction occurred in November 2013.
The judge then considered N.J.S.A. 2A:34-23(c), which provides, in part, that for any marriage less than twenty years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage. The judge found there were no exceptional circumstances to warrant an adjustment to the length of the term of limited duration alimony. The judge then considered the amount and length of the pendente lite support and found that although defendant paid support for four years, he received his entire pension during that period, including the portion to which plaintiff was entitled as equitable distribution. The judge also found that defendant had been working since August 2013 at a salary of $120,000 per year, but only paid $1250 per month in pendente lite support. After considering all of these factors, the judge ordered defendant to pay limited duration alimony for a period of five years from the date of the FJOD, May 5, 2015.
N.J.S.A. 2A:34-23(c) was amended, effective September 10, 2014. Because the FJOD was entered on May 5, 2015, the amended statute applies here.
In calculating the amount of alimony, the judge found that defendant's annual income, exclusive of his pension and gross rent from his rental properties, was approximately $120,000 per year, or $10,000 per month, and plaintiff's annual income was approximately $33,500 per year, or $2792 per month. The judge found that plaintiff's reasonable and appropriate expenses, consistent with the joint marital lifestyle were $5100 per month, and plaintiff received approximately $2800 per month in combined SSD and workers' compensation, leaving her with a $2300 per month shortfall. The judge awarded plaintiff alimony in the amount of $2300 per month, to be paid at the rate of $1,061.54 bi-weekly via wage garnishment through probation.
The judge found that defendant was able to pay $2300 per month and still maintain his own standard of living consistent with that enjoyed by the parties during the marriage. The judge recognized that she did not include the amount plaintiff would receive from defendant's pension in calculating the alimony amount, but reasoned, "[j]ust as [defendant's] pension income is not being used to determine his overall income, the pension amount that [plaintiff] receives should not be used to determine [plaintiff's] need to receive alimony."
Lastly, the judge again considered the amount and length of the pendente lite support defendant paid, and declined to award a retroactive adjustment of alimony pursuant to Mallamo. The judge reasoned as follows:
[Defendant] initially paid $2,500 per month, plus [plaintiff's] car insurance and her cell phone, and this [o]rder was amended effective November 1, 2013[] to $1,500 per month, with
no cell phone or car insurance requirement. . . . The initial pendente lite [o]rder was entered in this matter on June 2, 2011. [Defendant] had a gross earned income of $150,450.21 in 2010, the year before the initial pendente lite [o]rder was entered. When [defendant] presented evidence of his reduced income, which resulted from his retirement, [defendant] received a reduction in his pendente lite support obligation. It appears that at the time [defendant's] support obligation was reduced, he was not gainfully employed but was collecting his pension in the approximate amount of $82,400 per year.
In or around mid-2013, however, [defendant] became employed, earning $120,000 per year. In addition, [defendant] was receiving his pension in the amount of $82,400 per year. From mid-2013 through the present time, [defendant] has been receiving approximately $200,000 per year, and paying $15,000 per year in pendente lite support. [Defendant's] total income for 2013 was approximately $137,000. The pendente lite support he has been paying effective November 1, 2013 . . . is not excessive, and the court is satisfied that no adjustment is warranted at the present time under Mallamo, that is, [defendant] will not be granted a credit for "overpayment" of pendente lite support to [plaintiff].
[Defendant] also indicates that after his retirement, he was unemployed for some time before he was able to find another position, and he continued to pay pendente lite support during this period. The court notes that during this time, [defendant] was collecting his pension, and [plaintiff] was not receiving any portion of the pension, as equitable distribution of the pension had not yet been decided. [Defendant] thus did have income coming in, through his pension payments. The court is satisfied that an adjustment under Mallamo is not warranted.
Again, November 1, 2012 is the correct date.
Except for the five-year term of the limited duration alimony beginning on the date of the FJOD, defendant does not challenge any of the judge's findings. He argues that pendente lite support is alimony, and thus, since plaintiff received pendente lite support for four years, the award of five years of limited duration alimony from the date of the FJOD effectively gave her nine years of alimony, which exceeds the length of the parties' six-year marriage in violation of N.J.S.A. 2A:34-23(c). Alternatively, defendant argues that the judge abused her discretion by not considering the length and amount of pendente lite support paid, and exclusion of pendente lite support in determining the length of limited duration alimony offends public policy.
"In reviewing an alimony award, '[w]e give deference to a trial judge's findings as to issues of alimony, if those findings are supported by substantial credible evidence in the record as a whole.'" Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000) (quoting Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998)). To vacate a trial court's finding concerning alimony, we
must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient
credible evidence present in the record after considering the proofs as a whole.We intervene only when convinced that the trial judge's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)). "'[H]owever, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review.'" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App. Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). "[L]egal conclusions are always reviewed de novo." Id. at 433-34 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).]
"Alimony relates to support and standard of living; it involves the quality of economic life to which one spouse is entitled, which then becomes the obligation of the other." Gnall, supra, 222 N.J. at 429. "The goal of alimony is to assist the supported spouse in achieving a lifestyle 'reasonably comparable' to the one enjoyed during the marriage." J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 2012) (citations omitted). In divorce actions, courts may award "open durational alimony; rehabilitative alimony; limited duration alimony, or reimbursement alimony." N.J.S.A. 2A:34-23(b).
Limited duration alimony is at issue here. Limited duration alimony is expressly permitted by statute. N.J.S.A. 2A:34-23(c) provides, in pertinent part:
For any marriage . . . less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage . . . . Determination of the length and amount of alimony shall be made by the court pursuant to consideration of all of the statutory factors set forth in [N. J.S.A. 2A:34-23(b)]. In addition to those factors, the court shall also consider the practical impact of the parties' need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union, to which both parties are entitled, with neither party having a greater entitlement thereto.N.J.S.A. 2A:34-23(f) provides that "nothing in this section shall be construed to limit the court's authority to award open durational alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties and the nature of the case."
. . . .
In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.
"Limited duration alimony is available to a dependent spouse who made 'contributions to a relatively short-term marriage that . . . demonstrated the attributes of a marital partnership' and has the skills and education necessary to return to the workforce." J.E.V., supra, 426 N.J. Super. at 487 (quoting Gordon v. Rozenwald, 380 N.J. Super. 55, 65-66 (App. Div. 2005)). "Limited duration alimony, like permanent alimony, is based primarily on the marital enterprise. It is distinguishable from permanent alimony because the length of the marriage does not warrant permanent support[.]" Rozenwald, supra, 380 N.J. Super. at 66. As we have explained,
[i]n determining whether to award limited duration alimony, a trial judge must consider the same statutory factors considered in any application for permanent alimony, tempered only by the limited duration of the marriage. All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded.
[Cox, supra, 335 N.J. Super. at 483.]
N.J.S.A. 2A:34-23 permits an award of alimony, both pendente lite and upon the entry of a final judgment in both divorce and nullity actions. Statutorily, an award of alimony, both pendente lite and upon final judgment, is predicated upon the "actual need and ability of the parties to pay" and "the duration of the marriage." N.J.S.A. 2A:34-23(b)(1), (2).
Pendente lite spousal support is a power of the court to provide interim relief in the form of support in matrimonial actions . . . [and] is well established in practice and precedent." Rose v. Csapo, 359 N.J. Super. 53, 58 (Ch. Div. 2002) (citations omitted). As we have held,
[t]he pendente lite support motion is often indispensable in a matrimonial action as the heavy caseloads frequently mean there is a substantial delay between the time of filing the complaint and the final hearing. Pendente lite support awards are entered based upon the submission of affidavits and case information statements, often accompanied by oral argument, and almost always without a plenary hearing.
[Ibid. (citing Mallamo, supra, 280 N.J. Super. at 12).]
Moreover, pendente lite support serves "to maintain the parties in the same or similar situation they were in prior to the inception of the litigation; 'to preserve the status quo through the device of awarding temporary financial support pending a full investigation of the case.'" Ibid. (quoting Mallamo, supra, 280 N.J. Super. at 11-12).
N.J.S.A. 2A:34-23(b)(13) permits the court to consider "[t]he nature, amount, and length of pendente lite support paid, if any[,]" in making a final alimony award. Contrary to defendant's alternative argument, the judge considered the amount and length of pendente lite support on multiple occasions and addressed the issue in great detail in her written opinion. However, the pendente lite support defendant paid did not absolve him of his obligation to pay limited duration alimony.
In addition, pendente lite orders are subject to retroactive revision. See Mallamo, supra, 280 N.J. Super. at 12. Thus, the amount of pendente lite support may be cured and accounted for in the initial alimony determination under N.J.S.A. 2A:34-23. The judge considered the amount of the pendente lite support paid in light of the parties' financial circumstances and Mallamo, and properly found that a retroactive reduction was not warranted.
Defendant does not dispute that plaintiff is entitled to limited duration alimony in the amount of $2300 per month, nor does he assert she is not entitled to it for the length of the marriage, six years. Thus, since plaintiff only received four years of pendente lite support, she is entitled to two more years of limited duration alimony at $2300 per month. The equitable remedy the judge fashioned correctly accounts for those two years and the judge correctly revised the amount to $2300 per month. The judge's remedy also correctly accounts for the portion of defendant's pension that plaintiff did not receive during the litigation. However, extending limited duration alimony for five years from the date of the FJOD was improper.
Plaintiff is entitled to limited duration alimony for six years (April 2011 to April 2017), or seventy-two months, at $2300 per month, or $165,600. From April 2011 to October 2012, she received $2500 per month for nineteen months, or $47,500; from November 2012 to October 2013, she received $1500 per month for twelve months, or $18,000; from November 2013 to April 2015 she received $1250 per month for eighteen months, or $22,500; and from May 2015 to April 2017, she will receive $2300 month for twenty-three months, or $52,900. Thus, from April 2011 to April 2017, plaintiff will only receive $140,900, leaving a shortfall of $24,700.
In addition, from January 2012 to April 2015, plaintiff was entitled to receive $19,131.20 from defendant's pension, but received nothing. Adding this sum to the $24,700 shortfall leaves a total shortfall of $43,831.20. Limited duration alimony in the amount of $2300 per month should only have been extended for such additional time from the date of the FJOD as was necessary to compensate plaintiff for $43,831.20 shortfall. Accordingly, we remand for recalculation of the appropriate term of limited duration alimony from the date of the FJOD and for entry of an amended FJOD.
The $11,028 is calculated as follows: $81,108 from 2012 to 2013, plus $82,404 from 2013 to 2014, plus $27,800 from 2014 to April 2015 equals $191,312 divided by fifty percent equals $95,656 divided by one fifth equals $19,131.20. --------
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION