THOMAS A. TARANTINO v. MICHELE TARANTINO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0952-04T10952-04T1

THOMAS A. TARANTINO,

Plaintiff-Appellant,

v.

MICHELE TARANTINO,

Defendant-Respondent.

 

Argued February 16, 2006 - Decided March 10, 2006

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-278-03.

Susan M. Scarola argued the cause for appellant (Newman Scarola, attorneys; James M. Newman and Johanna D. Roccanova, on the brief).

Noel S. Tonneman argued the cause for respondent (Wilentz, Goldman & Spitzer, attorneys; Ms. Tonneman, of counsel; Ms. Tonneman and Lisa B. Steirman, on the brief).

PER CURIAM

Following a four-day bench trial in May and June 2004, plaintiff Thomas Tarantino appeals from those portions of a final judgment of divorce that awarded defendant Michele Tarantino alimony and counsel fees. We affirm the alimony award and reverse the counsel fee award.

The parties, who began dating in college in 1989, were married on January 4, 1997. No children were born of the marriage.

Plaintiff graduated from college in 1991 with a Bachelor's Degree in finance. In his first job, as a bond broker, he earned $20,000 per year. In 1996 he was hired on a commission basis by Cantor Fitzgerald, whose offices were located in the World Trade Center. He was still in its employ at the time the office was destroyed by the attack on the World Trade Center on September 11, 2001.

Defendant graduated from college in 1992 with a psychology degree. She attended Fordham Law School, passed the bar exam in 1995, and began working for the National Association of Securities Dealers with a starting salary of $29,000. She did not look for jobs with large law firms because she and plaintiff agreed that she would not work long hours, which would allow her to accompany him on trips to entertain his clients, and take care of their home. In April 1998, she left her job and began working for a law firm in Blue Bell, Pennsylvania, where she was employed at the time of the divorce.

The parties' earnings for the years 1999 through 2003 were:

Defendant

Plaintiff

1999

38,665

664,627

2000

62,102

359,665

2001

70,445

471,488

2002

73,000

780,843

2003

77,315

977,000

For the first four months of 2004, plaintiff earned $292,103.23 in commissions. Defendant's base salary for that year was $76,500.

Throughout the marriage, plaintiff's work often required him to entertain clients at least twice a week. That included dinners, golf, shows, vacations, and gambling trips to Las Vegas. Approximately seven to twelve times a year defendant accompanied plaintiff when he entertained his clients. Plaintiff occasionally referred to defendant as "the perfect broker's wife." At times, though, he became upset when she could not join him in his job-related social activities because she was working. The parties' long-term career plan was for plaintiff to make a lot of money while he was young and then retire, and for defendant to stop working once she had children.

In 1999, the parties built a home in Manalapan, costing approximately $550,000. They spent tens of thousands of dollars on improvements to the home. By the time of trial, the value of the home was $750,000.

Defendant ran the household during the marriage so plaintiff could focus on his career. She took care of "anything . . . and everything" having to do with the upkeep of the marital home; she took off from work whenever maintenance was performed on the home, the pet had to go to the vet, or a delivery was expected. She also drove plaintiff to work in the morning after a late night of entertaining clients; drove his grandmother home from their house on Sunday nights so plaintiff could get a good night's sleep; and she changed her plans if plaintiff needed her to run errands for him. Defendant also did the food shopping, laundry, and landscaping.

The parties established a very high standard of living during the marriage. Plaintiff was a member of a country club. The parties took a two-week honeymoon in Tahiti, and vacations to Napa, Hilton Head, Scottsdale, and Pebble Beach. Neither plaintiff nor defendant was on a budget. They usually dined at restaurants, rarely at home. They maintained an extensive wine collection. At the time the divorce complaint was filed, the parties owned a 1998 Audi A4 and leased a Mercedes Benz convertible. Plaintiff drove the Audi and defendant drove the Mercedes.

Plaintiff engaged in a substantial amount of gambling during the marriage, on trips to Las Vegas and Atlantic City. During an average trip to Las Vegas, he would lose between $5000 and $10,000. They stayed at the Bellagio, and the casino provided them with complimentary room and board, dinners, and, occasionally, shows.

On September 9, 2001, defendant found two airline tickets to Las Vegas in plaintiff's car. One ticket was for plaintiff and the second was made out to a woman named "Andrea." Defendant confronted plaintiff about the tickets the evening of September 10 when he came home from work. An argument ensued and continued until 2:00 a.m. Because he had been awake most of the night, plaintiff informed his office that he would be late for work on September 11. Before he arrived, the World Trade Center was attacked.

After plaintiff's department at Cantor Fitzgerald closed following the September 11 attack, defendant used her legal expertise to help him negotiate a termination package with the company. He subsequently obtained a position with First Brokers Securities.

The marriage continued to deteriorate and plaintiff filed his complaint for divorce on August 16, 2002. The parties settled many issues, including equitable distribution, but the following four issues were left for trial: (1) alimony; (2) whether either party diverted assets from the marital estate; (3) legal fees; and (4) whether the parties had an agreement to file a joint tax return for 2003.

Following trial, the judge awarded defendant limited duration alimony for a period of five years: $100,000 per year for the first two years subsequent to the divorce, $75,000 per year for the next two years, and $50,000 for the fifth year. The court ordered plaintiff to pay defendant's legal fees and costs up to the time of trial in the amount of $26,190.65, but the judge did not award counsel fees for trial. The court did not find any diversion of marital assets, or that an agreement existed regarding the filing of a joint 2003 tax return. Plaintiff appeals from the alimony and counsel fee determinations.

We first turn to whether the judge erred by awarding defendant alimony. The judge reasoned as follows:

The defendant . . . has established a bases for limited duration alimony in that the standard of living established during the marriage was extremely high and the defendant is entitled to a level of support to allow her the opportunity to readjust her own life so as to recreate as much of the lifestyle she enjoyed with Mr. Tarantino or remarry and/or create an entirely new lifestyle for herself. Both she and plaintiff, Mr. Tarantino, are young and will no doubt move forward with their lives. A limited duration alimony award directed at giving Mrs. Tarantino the opportunity of putting her life together for the long haul is the equitable thing to do given all the facts and circumstances of this case. A simple analysis and review of the parties' case information statements does not address the need of the parties to rebuild their lives separate and apart from one another. Mrs. Tarantino according to the undisputed testimony has basically been involved with Mr. Tarantino all her young adult life from long before the marriage until the date of separation. Mr. Tarantino is the only man she has known and she now will face creating for herself a new life including new goals not only for her career but also for all the other avenues of her life.

To this end, Mrs. Tarantino is entitled to an award of limited duration alimony to assist in her accomplishing these goals.

When reviewing an alimony determination, we give deference to the trial judge's findings. Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000). We should not disturb the alimony award unless the court's findings were not "'supported by substantial credible evidence in the record as a whole.'" Ibid. (quoting Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998)).

The goal in determining an appropriate alimony award is "to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). The standard of living experienced during the marriage is the "touchstone" of the alimony award, and its importance "cannot be overstated." Ibid. In making an alimony determination, the trial court should not merely consider the economic contributions of the parties but should recognize that "marriage is an adaptive economic and social partnership." Cox, supra, 335 N.J. Super. at 479. This principle acknowledges that marriage is a joint enterprise and that the efforts of making a home, performing various personal services, and providing physical and emotional support are "'at least as essential to [the] nature and maintenance'" of the marital relationship as economic factors, and are therefore "'entitled to substantial recognition.'" Id. at 479-80 (quoting Sally F. Goldfarb, Marital Partnership and the Case for Permanent Alimony, 27 J. Fam. L. 351, 354-55 (1988-89) (footnotes omitted)).

Limited duration alimony recognizes a dependent spouse's contributions to a relatively short-term marriage that nevertheless reflected the concept of a marital partnership. Id. at 476, 483. To determine whether to award limited duration alimony, the trial judge must consider the same factors applicable to permanent alimony, adjusted only to reflect the limited duration of the marriage. Id. at 483. The trial court must consider, and make specific findings, regarding the statutory factors set forth in N.J.S.A. 2A:34-23b. Crews, supra, 164 N.J. at 25.

Here, in light of the overriding purpose of alimony and the applicable enumerated statutory factors, the trial court did not abuse its discretion in its limited duration alimony award. As the trial court acknowledged, the parties established a very high standard of living during the marriage. (factor four). Their marital lifestyle included lavish vacations, country club membership, dining out as the norm, maintaining a wine collection, and driving luxury automobiles. Neither party lived according to a budget. The couple enjoyed gambling trips to Las Vegas, and expended vast amounts on furniture, fixtures, and improvements to their home.

Although defendant, an attorney, will not require further education to obtain a substantial earning capacity (factors five and eight), it is unlikely that she can maintain the established marital standard of living without alimony, as plaintiff supplied the overwhelming majority of their joint income during the marriage. Plaintiff has the ability to make the support payments to defendant; his annual income during the marriage ranged from approximately $400,000 to $977,000. It is likely that he will continue to earn near the higher end of this range, as he had already earned $292,103.23 in commissions in the first four months of the 2004 tax year. (factor one).

The trial court's decision to award defendant limited duration alimony recognizes her non-economic contributions to the marital partnership. Defendant did not seek the highest paying legal jobs at large law firms when she graduated from law school because those positions required long hours, and plaintiff did not want her to work those hours. Accordingly, she took a job for less pay but regular 9 a.m. to 5 p.m. working hours. The jobs that she chose allowed her to assist plaintiff in entertaining his clients. She took responsibility for household chores and errands so plaintiff could focus on his career. It was defendant, not plaintiff, who would miss work if someone needed to be at the house for maintenance or a delivery. Defendant made many non-economic contributions to the marriage that enabled plaintiff to concentrate on earning income.

The record as a whole supports the trial court's findings by substantial, credible evidence. Cox, supra, 335 N.J. Super. at 473. We do not find the trial judge's determination to award limited duration alimony, or the amount of alimony given the substantial disparity in the parties' incomes, was an abuse of discretion warranting reversal.

We next address whether the court erred in awarding defendant counsel fees. We agree with plaintiff that each party should have been required to pay their own counsel fees.

N.J.S.A. 2A:34-23 expressly authorizes an award of counsel fees in matrimonial actions; the determination rests within the sound discretion of the trial court. Williams v. Williams, 59 N.J. 229, 233 (1971); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We will disturb a trial court's award of counsel fees only if the award resulted from an abuse of discretion. Eaton, supra, 368 N.J. Super. at 225.

To determine an appropriate fee award in a matrimonial action, the trial court must consider the following factors: "(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award." R. 5:3-5(c); Pressler, Current N.J. Court Rules, comment 4 to R. 5:3-5 (2006).

While the trial judge set forth the pertinent factors in Rule 5:3-5(c), he limited his analysis to the parties' incomes; he did not analyze each of the pertinent Rule 5:3-5(c) factors. See Clarke v. Clarke, 359 N.J. Super. 562, 572 (App. Div. 2003) (noting trial judge's decision to award counsel fees must address pertinent factors of Rule 5:3-5(c) and include required findings of fact); Lavene v. Lavene, 148 N.J. Super. 267, 277 (App. Div.) (remanding for trial judge to reconsider issue of counsel fees and support determination with "express findings" as to parties' "respective needs and abilities"), certif. denied, 75 N.J. 28 (1977). Thus, because the judge did not make the necessary findings, we need not afford deference to his conclusions as to this issue.

Our independent review leads us to conclude that each party should be responsible for his or her own counsel fees. Both parties are capable of paying their own fees (factors one and two). Defendant earns over $76,000 per year and was awarded a substantial sum of alimony. She obtained an equal, and substantial, share of the marital assets pursuant to the parties' settlement agreement (factor nine). See Pascarella v. Pascarella, 165 N.J. Super. 558, 565 (App. Div. 1979) (equitable distribution of marital assets should be taken into consideration in determining award of counsel fees); Shaffer v. Shaffer, 154 N.J. Super. 491, 495-96 (App. Div. 1977) (same). While plaintiff earns significantly more money than defendant, this fact alone does not automatically entitle defendant to a counsel fee award.

The other pertinent factors, considered together, weigh against an award of counsel fees. While the result obtained was favorable to defendant, in that she was awarded limited duration alimony (factor seven), the trial court found that the fees incurred for the trial proceedings were due to her unwillingness to settle the issues amicably (factor three). As noted by the trial court, plaintiff "could have easily out-spent defendant in this litigation, but he did not."

In consideration of all of the Rule 5:3-5(c) factors, we agree with plaintiff that the court abused its discretion by awarding defendant counsel fees under these circumstances. Defendant's arguments to the contrary are without merit and do not warrant further discussion. R. 2:11-3(e)(1)(E).

 
We affirm the alimony award and reverse the award of counsel fees. Each party shall bear his or her own fees for this appeal.

Judge Winkelstein was not present for oral argument, but has reviewed the tape recording of the session.

Defendant's cross-appeal from the failure of the trial judge to award life insurance to secure the alimony award has been withdrawn.

The factors that the court must consider are: (1) actual need and ability of the parties to pay; (2) duration of the marriage; (3) age, physical and emotional health of the parties; (4) standard of living established during the marriage and likelihood that each party can maintain a reasonably comparable standard of living; (5) earning capacities, educational levels, vocational skills, and employability of the parties; (6) length of absence from job market of party seeking maintenance; (7) parental responsibilities; (8) time and expense necessary to acquire sufficient education or training to enable 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) history of 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) 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) income available to either party through investment of any assets held by that party; (12) 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 factor that the court deems relevant. N.J.S.A. 2A:34-23b.

(continued)

(continued)

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A-0952-04T1

March 10, 2006