MARA SCHWARTZ v. GARY SCHWARTZ

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6948-03T5

MARA SCHWARTZ,

Plaintiff-Respondent,

v.

GARY SCHWARTZ,

Defendant-Appellant.

________________________________________________________________

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November 2, 2005

Argued October 12, 2005 Decided

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of
New Jersey, Chancery Division, Family
Part, Essex County, Docket No.
FM-7-1216-03.

Robert T. Corcoran argued the cause
for appellant (Mr. Corcoran, attorney;
Mr. Corcoran and Judith S. Miller, of
counsel and on the brief).

David B. Bender argued the cause for
respondent (Mara Schwartz, pro se, on
the brief).

PER CURIAM

Plaintiff, Mara Schwartz, and defendant, Gary Schwartz, dated for approximately nine years and married on September 12, 1993. Two children were born of the marriage, Chelsea on October 8, 1996, and Peyton, on August 16, 2001. On September 21, 2002, about nine years after the marriage, the couple separated, and a divorce complaint was filed about three months later. Plaintiff and defendant were divorced in 2004, after a trial largely limited to the question of alimony. Defendant now appeals from the dual final judgment of divorce that awarded permanent annual alimony to plaintiff of $33,000. We vacate the permanent alimony award and remand for further proceedings.
The parties met at the State University of New York. Upon graduation in 1988, defendant began a career in the "import/export" business. Since late 1999, defendant has worked for Laufer Group International as "export director," responsible for the company's overseas freight business.
Defendant receives a "fixed" annual salary from Laufer, excluding bonuses and commissions, of $93,600. Defendant's total income over the years has varied from a high of $166,772 in 1999 to $119,499 in 2002 and $95,040 in 2003. Defendant explained that his income for 1999 was exceptionally high due to a "one-time" lucrative oil well drilling project in Argentina. Defendant claimed the events of September 11, 2001, have caused an increase in security costs which, when combined with a rise in fuel costs, have negatively impacted his company's profits and, in turn, the amount of any bonus he may receive.
After receiving her college degree, also in 1988, plaintiff obtained employment with the McGraw-Hill Publishing Company as a construction news reporter for a daily trade magazine. Her starting salary was $18,000. After marrying defendant in 1993, she remained at the job until 1998 when her annual salary was approximately $22,000, with full health benefits and a company automobile. Plaintiff stopped working at McGraw-Hill so she could stay at home with their daughter Chelsea who was then only one and one-half years of age. Over the course of the parties' marriage, plaintiff was primarily responsible for rearing the children while defendant continued to work for Laufer. At the time of the divorce trial, the parties' two children were seven and two years of age.
Plaintiff testified that she lacks computer skills, has minimal vocation skills, and has not held a full-time job since she left her position at McGraw-Hill. Her only other work has been as a part-time waitress at a local deli for a few months in 1999. According to plaintiff, if she had to return to work now, she would expect to earn a salary of about $200 per week.
In 1999, the parties purchased a home in Short Hills for approximately $400,000. By the time of trial, its value had increased to approximately $850,000. According to a stipulation entered into by the parties, plaintiff was to continue to live in the marital residence for one year after the divorce. At the end of this year, the house was to be sold and all proceeds divided equally between the parties. Thus, upon its sale, plaintiff and defendant could each expect to receive about $200,000.
The agreement further provided for joint custody of the children and stated that defendant will pay plaintiff $6,000 "allocated at 50% spousal maintenance [and] 50% child support," per month during the one-year period following the judgment of divorce. The monthly payment was to have no bearing upon the future with regard to either plaintiff's needs or defendant's ability to pay. All jointly or individually held Paine Webber brokerage accounts were to be liquidated and sold with the proceeds equally divided between the parties. The parties also agreed to retain their respective IRA accounts with the condition that "if there is a differential [between the accounts] of over $2000 in value[,] the parties shall equally divide said differential [in cash]."
Defendant testified that at the time they purchased the Short Hills home, their expenses doubled. According to him, they were "house rich and cash poor." It was during this period, that plaintiff worked a brief stint as a part-time waitress. Defendant testified that "we were not entertaining. We didn't do any[thing] of the sort. I cooked dinner every night for the family. There were no babysitters, nothing of the sort." Defendant paid all credit card bills, and he claimed never to have seen a bill for purchases at high-end stores. The home, according to defendant, "needed a lot of work" and any improvements that were done were completed by friends at a discounted price.
Plaintiff characterized the lifestyle they enjoyed during the marriage as "Short Hills upper middle class." She testified to shopping at high-end retail stores, frequently eating out, paying for a babysitter, and taking yearly vacations to different locations around the country. In addition, plaintiff claimed the parties spent approximately $90,000 on home renovations, including modernizing the kitchen.
The trial judge found that they lived an "upper middle class lifestyle with a housekeeper See footnote 1 for the past 10 years." But he also found that "[t]hey were 'house rich' [with] little discretionary income."
To justify the alimony award, the judge found there was "no basis to limit the duration of the alimony award," and directed permanent alimony to be terminated only upon "death or remarriage of the wife." The sole explanation provided for this award was that "[t]he court feels that limited duration alimony is not warranted." The judge further explained that ending alimony "for example after 16 years, when the youngest child is graduating high school, while seemingly practical[,] causes the court to speculate or predict the parties economic future, which the court is both unable or unwilling to do in the year 2004."
Despite being "unable or unwilling" to "speculate or predict" the economic future of the parties, the court found that "[t]he husband will always earn between one hundred and one hundred fifty thousand dollars per year. The wife will most likely never reach that earning level in any area of employment for her future." Furthermore, the court found "[t]he wife's absence from the job market for the last nine years and the needs of the two children make her ability to work outside the home a difficult issue at this time."
The judge reached the $33,000 alimony amount, payable at $2,750 per month, by accepting plaintiff's claimed monthly expenses of between $9,000 and $10,000 and imputing to her $20,000 in annual earnings. The judge also determined defendant's income to be $105,000, calculated by roughly averaging the defendant's earnings for 2002 and 2003.
The judge provided that "[i]f the husband's income is greater than $105,000[ ] the wife shall receive 25% of the gross bonus as additional alimony with a cap of $45,000[ ] per year as total alimony." Finally, the judge noted "[t]he husband has the ability to pay the amount ordered, he is healthy and has a high earning history and all the other factors See footnote 2 have been addressed by the court."
While we recognize that the trial judge's findings regarding alimony are entitled to deference, Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998), we find the court's findings in this case to be insufficient to justify an award of permanent alimony.
N.J.S.A. 2A:34-23(b) provides for four types of alimony: rehabilitative, reimbursement, limited duration, and permanent. An award of rehabilitative alimony is designed to enable a dependent spouse "to complete the preparation necessary for economic self-sufficiency." Hill v. Hill, 91 N.J. 506, 509 (1982) (citing Lepis v. Lepis, 83 N.J. 139 (1980)). Alimony payments cease once the dependent spouse has attained the ability to support oneself. Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998). Rehabilitative alimony should be considered in cases where "the marriage is relatively short and the recipient spouse is capable of full employment based on experience, additional training or further education." Heinl v. Heinl, 287 N.J. Super. 337, 348 (App. Div. 1996) (citing Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992)).
Reimbursement alimony is appropriate for spouses who have "supported the other [spouse] through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education." N.J.S.A. 2A:34-23(e). Such an award is restricted to repaying the financial benefits that were provided by the supported spouse in the expectation that the couple would enjoy an enhanced standard of living. Mahoney v. Mahoney, 91 N.J. 488, 502-03 (1982). Like rehabilitative alimony, reimbursement alimony is discontinued once its purpose is accomplished. Cox v Cox, 335 N.J. Super. 465, 479 (App. Div. 2000).
Limited duration and permanent alimony reflect and validate "the important policy of recognizing that marriage is an adaptive economic and social partnership[.]" Ibid. As contrasted with permanent alimony, limited duration alimony is awarded when "an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate." Id. at 476. Permanent alimony is generally reserved for "marriages of long duration where economic need is also demonstrated." Ibid.
When reviewing a request for permanent alimony it is imperative that, pursuant to N.J.S.A. 2A:34-23(c), the trial court "consider and make specific findings on the evidence" concerning the statutory factors provided in N.J.S.A. 2A:34-23(b). Cox, supra, 335 N.J. Super. at 478. A permanent alimony award "mandates an appropriate judicial analysis of the statutory factors[.]" Id. at 480.
One of the statutory factors that is especially relevant when deciding whether to award limited duration or permanent alimony is the length of the marriage. Id. at 483. "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 or awarded." Ibid.
As we have stated in the past, marriages lasting only two to three years can easily be recognized as non-deserving of permanent alimony. Hughes, supra, 311 N.J. Super. at 33. The difficult decisions arise in the context of "intermediate length" marriages, such as the ten-year marriage in Hughes and the nine-year marriage in the instant case. Ibid.
In Hughes, the trial court had awarded the wife rehabilitative alimony to assist her while she completed her college education to become "a vocal instructor as she had intended prior to her marriage." Id. at 22. We remanded so the trial court could reconsider whether the supported spouse requires the rehabilitative alimony award to be supplemented with a reduced permanent alimony award See footnote 3 to protect the spouse from a sharp decline in her standard of living once her rehabilitative alimony payments ceased. Id. at 33-34.
Here, plaintiff differs from the supported spouse in Hughes because she has already earned a college degree. Plaintiff did not forego attainment of her degree in order to marry and raise children. When plaintiff ceased work to care for her family, she had been engaged in a career for about five years that might still be lucrative for her with some additional training and/or education. Nevertheless, the trial court failed to consider whether plaintiff's expected earnings could be enhanced through any further training or education.
In Heinl, supra, 287 N.J. Super. at 337, where the marriage lasted just short of ten years, the trial judge, as did the judge here, awarded permanent alimony. We did not find error in the methodology employed by the trial court to determine the award because the judge "carefully explain[ed] his mathematical calculations and his reasons for each calculation . . ." Id. at 345. Instead we found error in the generalized nature of the findings and the "fail[ure] to articulate any reason for an award of permanent alimony rather than an award of rehabilitative alimony." Id. at 346. Like plaintiff here, the dependent spouse in Heinl was in her mid-thirties. Ibid. Age is extremely significant in these matters because younger divorcees often enjoy better employment prospects than do older spouses who have been absent from the workforce for many years. Ibid.
Generally, only spouses who are leaving lengthy marriages that involve "prolonged economic dependence and sustained contribution to [the] marital enterprise" are deemed "deserving" of permanent alimony. Gordon v. Rozenwald, 380 N.J. Super. 55, 66 (App. Div. 2005) (citing Cox, supra, 335 N.J. Super. at 483). A limited duration alimony award is acceptable when the dependent spouse made sacrifices for a relatively short-term marriage and possesses the current ability to return to the workforce. Cox, supra, 380 N.J. Super. at 483.
Here, the judge failed to explain why the parties' marriage was considered sufficiently long-term to warrant permanent alimony in light of plaintiff's relatively young age, college degree, and employment history. The judge failed to articulate why a limited duration award or a rehabilitation award, or any combination thereof, were inappropriate and did not distinguish plaintiff from other spouses who were entitled only to limited or rehabilitative alimony awards.
Although the judge recounted facts that relate to some of the factors mentioned in N.J.S.A. 2A:34-24(b), his reasons for awarding permanent alimony were general, largely undisclosed, and in part mistaken. The judge, for example, mistakenly found that plaintiff had been absent "from the job market for the last nine years." Actually, plaintiff had worked at McGraw-Hill for almost five years and had left approximately six years before the trial.
The judge declined to engage in an analysis of the appropriateness of limited duration alimony because the court was "unable or unwilling" to "speculate or predict the parties['] economic future." Nevertheless, the judge predicted that defendant would "always" earn at least $100,000 per year and that plaintiff, who was in good health and under forty years of age, "will most likely never" enjoy similar earnings herself. By imputing only $20,000 to plaintiff and awarding permanent alimony, the judge discouraged re-entry into the job market and overestimated plaintiff's need by underestimating her future earning capacity.
The judge's announced inability or unwillingness to engage in economic prediction is an insufficient reason to justify an award of permanent alimony to a thirty-seven-year-old spouse with gainful employment experience and a college degree who is leaving a nine-year marriage. There is no factor present in these circumstances that counters the relatively short-term nine-year marriage. For example, if the spouse were disabled or unable to return to work, a permanent alimony award would be justified. Likewise, it might be appropriate if she had overwhelming debt, no college degree, and was not receiving significant money from liquidated investment accounts and the sale of the marital home. But none of those factors are present in this case.
We recognize that plaintiff and defendant dated for a lengthy period before marriage. In our view, however, the lengthy dating period followed by their nine-year marriage is still outweighed by plaintiff's college degree and work experience. Before marrying, she had obtained her degree, and even after marriage, she had worked full-time for several years before leaving the work force. At the time of her divorce, she was still relatively young and had been out of the job market for only about six years.
For the reasons explained, we vacate the award of permanent alimony, and hold that based on the record developed and the reasons articulated, the judge mistakenly applied his discretion when he awarded plaintiff permanent alimony. We remand so the trial court may consider whether to award plaintiff rehabilitative alimony, limited alimony, or some combination thereof, or even rehabilitative and reduced permanent alimony.
We note that at oral argument plaintiff withdrew his opposition to the amount of the award and only argued that its duration was erroneous. Because the form of the award may affect its amount, however, we vacate the amount to permit its modification, if necessary. No matter what form the alimony award takes, it is required that the court specify its reasons for any award. See footnote 4

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Vacated and remanded.

Footnote: 1 The record reflects that the parties hired a person to clean the house every other week.
Footnote: 2 Presumably, the judge's reference to "the other factors" refers to the thirteen factors specified in N.J.S.A. 2A:34-24(b), which must be considered in determining the amount and duration of alimony "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just[.]" These factors include: (1) the actual need and ability of the parties to pay; (2) the duration of the marriage; (3) the age, physical and emotional health of the parties; (4) the standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living; (5) the earning capacities, educational levels, vocational skills, and employability of the parties; (6) the length of absence from the job market of the party seeking maintenance; (7) the parental responsibilities for the children; (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; (9) the history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities; (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; (11) the income available to either party through investment of any assets held by that party; (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; and (13) any other factors that the court may deem relevant.
Footnote: 3 Rehabilitative alimony is not an exclusive form of relief and can be combined with other forms of alimony, including limited duration, reimbursement, and permanent. N.J.S.A. 2A:34-23(f).
Footnote: 4 Plaintiff also argued, in a well written pro se brief, that defendant should not be granted relief on appeal because he has consistently violated court orders and failed to comply with the pendente lite support order. As support for this argument, plaintiff included in her appendix documents which post-date the decision under review, and thus violate R. 2:5-4(a). Even considering the impermissible documents, the record does not contain any proof of defendant's failure to comply with the alimony award under review. If plaintiff seeks enforcement of any trial court order, she must first apply to that court for such relief. R. 1:10 and R. 2:9-1(a). Under the current circumstances, it would be excessive and unfair to penalize defendant for prior recalcitrance by rejecting an appeal that we find meritorious.

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