WILLIAM CUNNINGHAM v. ARLENE CUNNINGHAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3176-03T33176-03T3

WILLIAM CUNNINGHAM,

Plaintiff-Appellant,

v.

ARLENE CUNNINGHAM,

Defendant-Respondent.

__________________________________

 

Argued September 26, 2005 - Decided

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County,

Docket No. FM-11-560-01B.

John A. Hartman, III, argued the cause for appellant (Pellettieri, Rabstein & Altman, attorneys; Mr.

Hartmann, of counsel; Karen L. Steinbach, on the brief).

Richard A. Norris argued the cause for respondent

(Norris, McLaughlin & Marcus, attorneys; Mr. Norris, of counsel, and on the brief; Haekyoung Suh, on the brief).

PER CURIAM

Plaintiff, William Cunningham, appeals from those portions of a Final Judgment of Divorce, entered on December 8, 2003, which awarded defendant, Arlene Cunningham, $3,000 per month in permanent alimony, distributed the parties' marital property, and required plaintiff to pay a portion of defendant's attorney's fees. We affirm.

Some background is in order. The parties were married on October 16, 1965, and had five children during their thirty-five marriage: William, born May 9, 1966; Maryanna, who died in infancy; Karen, born September 6, 1969; Arlene, born December 8, 1971; and John, born July 1, 1980. Plaintiff filed a complaint for divorce on November 29, 2000. At the time of trial, plaintiff, a neurosurgeon, was sixty-six years old, and defendant was sixty years old.

For the first six years of their marriage, plaintiff worked as an intern and then as a resident, never earning more than $4,500 per year. During this same time, defendant continued to work as a nurse, taking brief breaks to give birth to four of the parties' children, the fifth being born several years later. As plaintiff explained, the family essentially lived on defendant's income throughout this period.

In 1972, plaintiff completed his residency and moved the family to Princeton, where he began his career as a neurosurgeon. Around this same time, defendant quit her job to raise the children and run the family household. She never returned to work. Meanwhile, plaintiff's neurosurgery practice flourished. Between 1998 and 2002, he earned an average annual income of $715,600, with peak earnings of $791,000 in the year preceding trial.

The parties enjoyed an "upscale" lifestyle during their marriage. The children attended private schools and universities. The parties dined at exclusive restaurants, drove luxury cars, traveled extensively, and vacationed with their family in exotic places. They also purchased several valuable residences during marriage and accumulated significant savings. They bought a home in Princeton for over $700,000 and a sixty-three acre farm with a two-story home, in-ground pool, and various other outer buildings in Hillsborough, which had an appraised value of $1,242,500. Upon their separation, defendant purchased a home in Ringoes, with marital funds, valued at $520,000. Apart from real estate, they also amassed savings and investments in excess of $3.5 million, and plaintiff held a separate retirement account worth more than $2 million.

Following the filing of the divorce complaint, defendant was granted pendente lite relief consisting of $7,000 in monthly spousal support, counsel fees associated with her pendente lite motion, and a $7,500 advance for prospective legal fees. Thereafter, she filed an enforcement motion, resulting in an order requiring plaintiff to pay over $4,000 in arrearages and awarding her counsel fees connected with the motion.

Following a six-day trial, the judge issued an extensive written opinion. He determined an award of alimony was "fit, reasonable, and just" in light of the "circumstances of the parties and the nature of the case." The judge explained:

Defendant seeks an award of permanent alimony "fundamentally because of the length of the marriage."

. . .

Defendant further argues that Plaintiff's budget exceeds that of the Defendant, after deducting what purports to be related expenses for the parties' son John who lives with him . . . .

. . .

The Court in reviewing all of the evidence in this case finds that the period of savings in this marriage is all but over. The savings component was the product of Plaintiff's earnings and he is now sixty-six years old and reasonably expects to retire. Defendant then cannot expect to continue to receive support for a savings component at this stage of the Plaintiff's life. She has reaped considerable benefits from the marital savings. She has considerable assets from equitable distribution to invest [] as well as a portion of the retirement benefits of the Plaintiff . . . .

. . .

Based upon assets received through equitable distribution, Defendant will have more than $2 million to invest and to derive income. Neither party provided evidence to permit this Court to determine interest or return on investment. Miller v. Miller, 160 N.J. 408 (1999). The Court, however, will impute investment income at four percent (4%), which the Court finds to be a reasonable return.

. . . The parties here are not young and the duration of their marriage is not brief. An award of permanent alimony is not inappropriate. The amount of alimony must be set with reference to the marital standard of living. Alimony must provide means for sharing in the success of the marital enterprise. Mahoney v. Mahoney, 91 N.J. 488, 505 (1982). The actual need of the Defendant as set forth in her budget is approximately $7,000 per month, which does not include taxes and health insurance for her as a sixty year-old woman.

The Plaintiff, at the present time, has demonstrated by his earnings over the past five years as a neurosurgeon that he has the ability to pay.

The Court has reduced certain budgetary expenses that were set by the Defendant for restaurant expenses and vacations consistent with the evidence adduced at trial.

The Court finds that the reduction of restaurant costs is reasonable because it was the Defendant's testimony that she does not go out to eat alone but prefers to entertain friends in her home as opposed to going to a restaurant. The Court, therefore, allows a higher food expense as a result of this lifestyle change.

The Court finds that vacations are much more limited now than when Defendant and Plaintiff or the family traveled together during the viable part of the marriage.

P-5, which is Defendant's monthly budget for shelter, transportation and personal expenses, is nonetheless approximately $7,000. Additionally, Defendant will require medical insurance, which the Court finds will cost approximately an additional $400 per month. Overall, the Court has reviewed the budget of Defendant and outside of the adjustments[,] the Court finds that it is not inconsistent with the standard that was set during the marriage. The Court will not comment on the Plaintiff's arguments as to the Defendant's individual expenses being inflated such as utilities, repairs, telephone, lawn services, snow removal, automobile expenses, food, hair care, pet care except to say that the arguments were considered as well as those counter -arguments put forth by the Defendant. The Court finds the marital lifestyle to be as it continues to be expressed as set forth in Plaintiff's budget, containing living expenses of similar amounts as Defendant.

The Court recognizes that there must be sufficient flexibility in Defendant's budget to allow her to meet any unreimbursed medical expenses and the Court feels it has done that. Therefore, the Court finds that there is a budget requirement of approximately $7,500 per month or $90,000 per year needed for the Defendant. With projected unearned income at $84,000 per year, the Defendant needs another $6,000 per year to meet her budget before taxes. Taxes are assumed to be at the twenty-five percent rate. To meet the $90,000 yearly budget after taxes, the Court finds that [defendant] will require $120,000 before twenty-five percent taxes. Therefore, for defendant to net $90,000 after taxes[,] the plaintiff is to pay $36,000 per year alimony at the rate of $3,000 per month. This will meet the $36,000 pre-tax shortfall, i.e., the difference between $84,000 unearned income and the $90,000 budget.

Therefore, the Plaintiff is ordered to pay permanent alimony at $3,000 per month

. . . .

. . . The duration of this marriage is 35 years as of the date of the Complaint

. . . The standard of living that was established during the marriage has been considered . . . Plaintiff is a neurosurgeon who earns over $700,000 per year on an average of the past five years. Defendant has not been employed, is now sixty years of age, and is incapable of finding meaningful employment at this stage. She has been unemployed for over thirty years.

As to the distribution of their marital property, the parties stipulated to the value of most of their assets. The court then considered the statutory factors prescribed by N.J.S.A. 2A:34-23.1, and allocated the assets accordingly. Noting, among other things, the length of the marriage, each individual's contribution to the marriage, the marital standard of living, and the post-divorce earning capacity of each party, the judge charged $4,365,720 worth of the marital property to plaintiff and $3,660,026 worth to defendant. Specifically, plaintiff's share included the sixty-three acre farm ($1,242,500), the full value of his office condominium ($147,250), seventy percent of the value of his medical practice ($498,400), sixty percent of his retirement accounts ($1,262,680), $1,135,869 out of the parties' investment accounts, the full value of various other bank accounts, bonds, and redemption funds ($44,433), and a piano he purchased post-complaint with marital funds for $34,598. Defendant's share consisted of the Ringoes residence ($520,000), thirty percent of the value of the medical practice ($213,600), forty percent of the retirement accounts, and $2,084,650 out of the investment accounts, a portion of which was paid to account for the difference in the distribution of property with stipulated or defined values such as the two residences. "In consideration of the overall distribution of the assets of the marital estate no other adjustments or credits for furniture or other personalty" were made.

Lastly, the judge awarded defendant a portion of her outstanding expert and counsel fees. Noting both that "defendant has no income from employment" whereas "plaintiff has income as a physician," and that "defendant was caused to incur counsel fees both defending her removal from the marital home (without a source of income) as well as prosecuting pendente lite applications . . . ," the judge directed plaintiff to pay $45,000 towards plaintiff's outstanding legal fees, which totaled nearly $85,000.

Following denial of his motion for reconsideration, plaintiff filed this appeal challenging the award of permanent alimony, various awards of equitable distribution, and the counsel fee award. He raises specific grounds as to each award, none of which we deem to constitute reversible error.

i.

As to the award of permanent alimony, plaintiff contends the court erred in: (1) calculating defendant's monthly budget; (2) imputing investment income at only 4%, instead of 7.39%, the Moody's Composite Index five-year average of corporate bonds; (3) failing to impute to defendant unearned income on her share of plaintiff's retirement and profit-sharing accounts; (4) failing to charge her with receipt of social security income; and (5) not requiring her to invade principal to meet expenses. We disagree.

Our review of a trial court's alimony award is limited. Overbay v. Overbay, 376 N.J. Super. 99, 106 (App. Div. 2005). This court "should accord deference to family court factfinding" if those findings are supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 413 (1998). On this score, "alimony is neither a punishment for the payor nor a reward for the payee . . . It is a right arising out of the marriage relationship to continue to live according to the economic standard established during the marriage . . . ." Aronson v. Aronson, 245 N.J. Super. 354, 364 (App. Div. 1991). It exists to "permit a wife to share in the economic rewards occasioned by her husband's income level (as opposed merely to the assets accumulated), reached as a result of their combined labors, inside and outside the home." Gugliotta v. Gugliotta, 160 N.J. Super. 160, 164 (Ch. Div.), aff'd, 164 N.J. Super. 139 (App. Div. 1978). A trial court may award such alimony "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." N.J.S.A. 2A:34-23. In doing so, the court must consider, among other things:

(1) [t]he actual need and abilities of the parties to pay; (2) [t]he duration of the marriage; . . . (4) [t]he standard of living established in the marriage . . .; (5) [t]he earning capacities, educational levels, vocational skills, and employability of the parties; (6) [t]he length of the absence from the job market of the party seeking maintenance; . . . (10) [t]he equitable distribution of property ordered and any payouts on equitable distribution . . .; and (11) [t]he income available to either party through investment of any assets held by that party.

[Ibid.]

With regard to the latter two factors, our courts have explained that "consideration must be given to the fact that support payments are intimately related to equitable distribution and the financial security and potential income available because of it." Lavene v. Lavene, 162 N.J. Super. 187, 203 (Ch. Div. 1978); see also Miller v. Miller, 160 N.J. 408, 421-26 (1999). Thus, before awarding alimony, the court should consider a supported spouse's ability to earn income by investing the assets obtained through equitable distribution. Lavene, supra, 162 N.J. Super. at 203. In Miller, the Court further held a party could not "insulate his or her assets from the alimony calculus by investing those assets in a non-income producing manner." Id. at 422. There, the supporting spouse, an experienced, professional investor, sought a downward modification of his alimony obligation due to a decrease in his base salary. Id. at 413-17. He, however, was only earning 1.6 percent interest on his significant stock investments, which were being held for future "capital gains rather than [to produce] a larger steady stream of income." Id. at 421, 423. In determining his ability to pay alimony, therefore, the Court imputed additional income based on what it believed was a reasonable rate of return at the time, as indicated by the Moody's Composite Index on A-rated Corporate Bonds. Id. at 424-25.

We do not read Miller, however, as mandating that the Moody's Index always be used to calculate a reasonable rate of return, regardless of the circumstances. Overbay, supra, 376 N.J. Super. at 110-13. Rather, the Court specifically confined its decision to the facts there presented, stating that it did not "intend to deprive plaintiff of the opportunity to control his investment opportunities" but did require "the imputation of a more reasonable income from those investments

. . . ." 160 N.J. at 424, 426. As we recently explained in Overbay, supra:

The lesson to be learned from Miller is that when a spouse with underearning investments has the ability to generate additional earnings - without risk of loss or depletion of principal- but fails to do so, it is fair for a court to impute a more reasonable rate of return to the underearning assets, comparable to a prudent use of investment capital. In Miller, the Court took note of the difference between legitimate investment strategies, specifically, between investing 'designed to produce [future] income through appreciation in stock values' and investing for present income. In imputing additional income to Mr. Miller, the Court recognized that it would be unfair to allow one spouse to maximize future income through anticipated asset appreciation for his or her own benefit, while limiting present income that would enter into the alimony calculation for the benefit of the other spouse . . . .

[376 N.J. Super. at 111 (citations omitted)].

Because there was no evidence that the supported spouse in Overbay sought to insulate her assets or "reduce[] . . . current income in the pursuit of future asset appreciation," we held that the trial court erred by rigidly applying the Miller formula. Id. at 109, 112.

In deciding Overbay, we noted that simply imputing interest income based on the Moody's Index "deprived Mrs. Overbay of the opportunity to control her investment options" since she had always sought safe investments that did not risk capital, and applying the formula used in Miller would force her to "pursue a more aggressive investment strategy that [would] subject her capital to greater risk." Id. at 108. Likewise, we acknowledged that the general trend in investment strategies had shifted away from high-risk, high reward investments since the Court decided Miller as a result of scandals involving companies like Enron and WorldCom. Id. at 109. Accordingly, we concluded that the trial court misapplied Miller when it simply imputed income based upon the Moody's Index instead of attempting to identify a reasonable rate of return. Id. at 110-11.

It is clear that "[a] trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Overbay, supra, 376 N.J. Super. at 106-07 (quoting Storey v. Storey, 373 N.J. Super. 464, 474-75 (App. Div. 2004)). Here, plaintiff did not provide the trial judge any sound basis for imputing income, nor did he offer evidence demonstrating that four percent was not a reasonable rate of return. In fact, we recently recognized in Overbay that "10 year Treasury Notes have yielded 4.46% over the last five years." Id. at 109. Although plaintiff now argues that the Moody's Index should have been applied, there is no proof in the record that the parties ever earned interest at or near the seven percent rate stated in the Index. Nor is there any evidence that they had ever invested in corporate bonds or other such high-risk investments. On the contrary, their assets had historically been invested in low-risk money market accounts. According to their own stipulation, as of April 2003, $3.4 million of the parties' liquid assets subject to equitable distribution was being held in a municipal money market account subject, of course, to market fluctuations. Consequently, there was no error in fixing a more realistic rate of return that accorded with the parties actual investment strategy throughout the marriage.

Likewise, the court did not err by declining to impute unearned income to defendant in connection with her share of the retirement accounts, which totaled over $800,000. See N.J.S.A. 2A:34-23 ("When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony."). Apart from the statutory proscription, the trial judge justifiably concluded that any interest earned from this asset should be preserved as a retirement fund rather than invaded for her daily support. Contrary to plaintiff's suggestion, the trial court did consider defendant's opportunity to earn income from the retirement accounts, but simply concluded, in light of the other statutory factors of N.J.S.A. 2A:34-23(b), that the interest should be saved for defendant's future needs. The judge explained:

The Court absolutely viewed this as a retirement fund, recognizing the age of Dr. Cunningham and I would think his expressed, multiple expressions of desire to retire which would obviously then cut off the alimony or certainly have a serious impact on it.

The parties I viewed were in a marital partnership. And Mrs. Cunningham got the benefit of the success of this family partnership called the marriage. And one of the components of it was a retirement package which I don't think she should have to use at this time to support herself. She has a working husband.

In other words, while plaintiff continues to work and build his retirement account, defendant, who was unable to return to work as a result of her age and respective contributions to the marriage, is also entitled to support herself without consuming the interest and stunting the growth of her share of retirement funds. Indeed, plaintiff has cited no law to the contrary. As the trial judge reasonably concluded in light of defendant's contributions to plaintiff's financial success, so long as plaintiff continues to earn a significant salary and build his retirement account, defendant should not be required to use up the interest accumulating on her share of the accounts. Simply stated, the ability to earn income through the assets obtained in equitable distribution is just one of the factors in the alimony calculus. Here, the trial judge concluded that the other factors weighed in favor of an alimony award, and there is no basis in the record to disturb that finding.

Plaintiff's other challenges to the alimony award are similarly unpersuasive. By plaintiff's own admission, as of the filing of this appeal, defendant is not yet receiving social security income. Accordingly, the trial court properly refused to charge defendant with income she had not yet received. See White v. White, 284 N.J. Super. 300, 307 (Ch. Div. 1995) (refusing to offset husband's obligation to his wife in an amount equal to wife's social security benefit, when wife was not yet eligible to receive social security), aff'd o.b., 309 N.J. Super. 139 (App. Div. 1996).

Likewise, there is no mandate that defendant invade the principal of her assets in order to support herself. Unlike our decision in Lynn v. Lynn, 165 N.J. Super. 328, 342-43 (App. Div.), certif. denied, 81 N.J. 52 (1979), holding that the trial court erred by failing to even consider invading a divorcing mother's assets for child support purposes when the children's father would have markedly diminished earnings for a period, here, there is neither the indication that plaintiff will have diminished earnings, nor the child support consideration. Although the plaintiff may be nearing retirement, he has not yet retired. In fact, he earned more in the year prior to filing for divorce than in any of the preceding years. The trial court properly found that plaintiff's ability to pay and defendant's inability to obtain any other employment was of particular importance, and, therefore, justifiably refused to require defendant to invade her share of the marital assets.

Finally, the trial court's calculation of defendant's monthly budget is supported by the record and should not be disturbed. Cesare, supra, 154 N.J. at 413. As reflected in plaintiff's own budget, the parties' upscale marital lifestyle has continued post-divorce. Moreover, while defendant's expenses may have diminished in certain areas, they stand to increase in others. For example, the trial court correctly noted the likely increases in health costs, not accounted for in defendant's budget. Similarly, the court reduced defendant's travel and dining expenses, but increased those for groceries since the evidence indicated defendant spends more time at home after the divorce. Suffice it to say, the trial judge was in the best position to hear and determine the credibility of the witnesses, and having done so, made certain findings as to defendant's needs. These findings were not arbitrary, capricious, or unreasonable, particularly when considered in conjunction with the parties' marital lifestyle and plaintiff's own budget, and are entitled to deference. Cesare, supra, 154 N.J. at 413.

ii.

Despite having received approximately $700,000 more in equitable distribution than defendant, plaintiff nevertheless challenges several features of the court's allocation of marital property. Specifically, he claims the court did not employ a uniform standard, charging him with spending marital funds post-complaint but not charging defendant for similar expenditures plaintiff made on her behalf, and failing to credit him for post-complaint payments on defendant's behalf. Additionally, plaintiff argues that the court erred in allocating to him the full value of his office condominium, allowing defendant to avoid any tax consequences of a possible future sale. These arguments are without merit. R. 2:11-3(e)(1)(A) & (E).

The purpose of equitable distribution is to divide property acquired during the marriage in a manner that is just under the circumstances of the case. Painter v. Painter, 65 N.J. 196, 209 (1974)). To this end, "where the parties to a divorce have accumulated substantial assets during a lengthy marriage, courts should compensate for any unfairness to one party who sacrificed for the other's education . . . by an equitable distribution of the assets to reflect the parties' different circumstances and earning capacities." Mahoney v. Mahoney, supra, 91 N.J. at 504.

In other words, a court is required to make an equitable, not an "even", division of marital property, and this allocation is to be in accordance with the non-exhaustive list of statutory factors prescribed by N.J.S.A. 2A:34-23.1.

Here, equitable distribution reflected the parties' "different circumstances and earning capacities." As such, it was entirely reasonable for the court to treat plaintiff's post-complaint purchase of a $34,598 piano differently than defendant's expenses associated with moving out of the marital home as a result of the divorce. And, contrary to plaintiff's argument, the court did not ignore its earlier pendente lite order, in which it indicated that plaintiff would not receive a support credit for the $6,867.83 he paid on defendant's credit card with marital funds post-complaint but that this payment would be considered at the final hearing relative to equitable distribution. Instead, the court determined, after a review of all the statutory factors, that "[i]n consideration of the overall distribution of the assets of the marital estate no other adjustments or credits for furniture or other personalty

. . ." were appropriate. Ultimately, plaintiff received $4,365,720 worth of assets in equitable distribution, and defendant received $3,660,026, a difference of over $700,000. Significantly, the decisions as to particular credits and charges were made within the broader allocation of over $8 million worth of assets and simply reflect the court's assessment of the statutory factors and the parties' relative positions.

Lastly, on this score, there was no error in allocating to plaintiff the value of his office condominium. Although the building was purchased with joint marital funds, it was held individually by plaintiff. Moreover, the judge treated this asset similarly to other tangible marital assets, such as the various residences, none of which were valued or allocated according to the tax consequences of a future sale. See Orgler v. Orgler, 237 N.J. Super. 342, 355 (App. Div. 1989) (holding "that hypothetical tax consequences upon the future sale or transfer of marital assets should not be deducted from present value for equitable distribution purposes. The hypothetical tax is simply too speculative to permit a reduction in value."). In fact, nothing in the record suggests plaintiff has ceased using the office condominium or even plans to do so in the near future, which precludes a finding that plaintiff's distributive share should be any different in order to compensate him for the likely tax consequences, and to balance the equities. See Goldman v. Goldman, 275 N.J. Super. 452, 462 (App. Div. 1994) (explaining that tax consequences can be considered, along with all the other factors, in determining a party's distributive share even if they should not be used to reduce the present value of marital assets).

iii.

Finally, plaintiff argues it was error to award defendant a portion of her legal fees. Specifically, he claims that defendant's significant distributive share, worth more than $3 million, including over $2 million of liquid assets, obviates her need for an award. He further argues that he was improperly denied a credit of $34,500 for amounts he already paid post-complaint on defendant's behalf to cover a portion of her legal fees.

As to the latter, both parties acknowledge that the $34,500 amount was paid with joint marital funds, and consequently, the court found plaintiff's argument in this respect without basis and not "supported by any factual evidence." As to the former, it is settled that "the award of counsel fees . . . in matrimonial actions rests [within the sound] discretion of the [trial] court." Williams v. Williams, 59 N.J. 229, 233 (1971). In determining whether a party is entitled to a fee award, our courts focus on several factors, including, among other things, "(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees, . . .; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties;

. . . (7) the results obtained; . . . and (9) any other factor bearing on the fairness of an award." R. 5:3-5(c); Williams, supra, 59 N.J. at 233. "Where this analytical framework is followed and the judge makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion."

Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000). Moreover, "a spouse's need is determined by his or her income and available capital assets." Argila v. Argila, 256 N.J. Super. 484, 494 (App. Div. 1992). As to the latter, however, a court is not precluded from making a fee award simply because the party seeking the award has received his or her fair share of the marital property. Shaffer v. Shaffer, 154 N.J. Super. 491, 495 (App. Div. 1977). And as to the former, a disparity in income alone suggests some entitlement on the part of the lower income spouse to a fee allowance. Lavene v. Lavene, 148 N.J. Super. 267, 277 (App. Div. 1977).

Here, plaintiff has a substantial earned income; defendant does not. This disparity alone, in our view, suggests the propriety of the trial court's partial counsel fee award. But there is more. The record demonstrates plaintiff's ability to contribute to defendant's legal fees. And although there was no finding of bad faith, we simply note that defendant had to oppose plaintiff's unsuccessful motion to remove her from the marital home, and initiated pendente lite motions, not only to fix adequate support payments, but also to enforce that legal obligation. In sum, under the circumstances, we find no abuse of discretion in the trial court's award of counsel fees.

 
Affirmed.

An additional $350,000 from this account was set aside to establish a trust for the parties' disabled, dependent son.

(continued)

(continued)

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October 11, 2005