REBECCA K. BOOTH v. CHARLES W. BOOTH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1089-04T31089-04T3

REBECCA K. BOOTH,

Plaintiff-Respondent,

v.

CHARLES W. BOOTH,

Defendant-Appellant.

_______________________________________

 

Argued March 21, 2006 - Decided July 26, 2006

Before Judges Axelrad, Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, FM-06-12-04.

Brian G. Paul argued the cause for appellant (Szaferman, Lakind, Blumstein, Blader & Lehmann, attorneys; Mr. Paul, on the brief).

Carl W. Cavagnaro argued the cause for respondent (Mann, Moore, Ferrigno & Cavagnaro, attorneys; Cherylann Ferrigno, on the brief).

PER CURIAM

Charles W. Booth appeals various aspects of a final judgment of divorce entered by the Family Part following a nine-day trial concluded in August 2004. In particular, appellant seeks review of the judgment's provisions awarding limited-duration alimony and reimbursement alimony to his ex-wife, respondent Rebecca Booth; limiting his parenting time with the parties' minor son; and awarding respondent counsel fees. We affirm the judgment below in all respects, except to the extent that we modify the amount of reimbursement alimony.

I.

The parties were married on May 16, 1992. They had one child, a son, who was born in April 1999. The parties separated about a year after the son was born. Three years later in June 2003, the wife filed a divorce action. The parties shared joint physical custody of their son, roughly on a 50/50 basis, from the time of their separation until the time of trial.

Shortly before the parties married, the wife had obtained in 1992 a bachelor's degree in public administration from Evangel College. Her college expenses were fully paid by her parents. The husband graduated from Evangel College in 1991 with a dual bachelor's degree in psychology and biblical studies. He also had completed one year of graduate school in psychology at Central Michigan University by the time the parties married in May 1992. He resumed his graduate studies at Central Michigan in the fall of 1992, but did not complete that program, as the parties moved to New Jersey in May 1993 and temporarily moved in with the wife's parents. Eventually the parties obtained their own rental housing.

Through July 1998, the wife was the primary wage-earner in the household. The wife worked full time in various office positions, while her husband continued to pursue his own higher education. Upon the couple's relocation to New Jersey, the husband was accepted into a full-time master's program in counseling at what was then known as Trenton State College. He received his master's degree in that subject in May 1996. Meanwhile, the wife put on hold her own aspirations to pursue graduate studies in education and a career in teaching. The parties subsisted solely on the wife's income and student loans. On average, the wife earned approximately $30,000 annually before the parties' separation.

After the husband obtained his master's degree in counseling, he was unsuccessful in finding employment in that field despite having attended regional job fairs. He briefly worked part-time at an amusement park in the summer of 1996. Eventually, the husband decided to shift course and pursue employment in the computer field. In July 1998 the husband obtained a computer-related position with an automobile rental company, and he has remained employed in the computer field since that time. He was hired as a supervisor by the State Department of Education in February 2000, where he became one of the Department's top computer support specialists.

In September 1998, the wife learned that she was pregnant. Soon thereafter in November 1998, the husband informed her that he was unsure of whether he wanted to remain married to her. The wife continued to work full time through March 1999, when she was placed by her physician on bed rest for the remainder of her pregnancy. She gave birth to the parties' son on April 30, 1999. She remained on maternity leave until August 1999, at which time she resumed working, initially part-time for a month, and then full time, at her office position.

Upon the parties' separation in June 2000, the wife left her job and moved in with her parents in Millville for financial reasons. Shortly thereafter, the wife was admitted into the post-baccalaureate program in elementary education at Rowan College, which she began attending full time in January 2001. Meanwhile, the wife worked from August 2000 through March 2001 for a temporary manpower agency. She also did some substitute teaching during the 2001 school year.

Initially, the parties shared residential custody of their son on an equal basis and neither party paid nor received support. By the fall of 2001, however, the wife found it necessary to file an application with the Family Part to obtain support; that application resulted in a private agreement for the husband to pay the wife $200 monthly from January 2002 to May 2002, during which time the wife would complete the student-teaching requirements of her master's program.

The wife graduated and obtained her teaching certification in elementary education from Rowan College in May 2002. After a job search that summer, the wife obtained work as a special education teacher in Downe Township. She worked in that position until May 2003, but her contract with that school district was not renewed due to a reduction in force. She collected unemployment in the summer of 2003 and then received a position with the Millville Board of Education in September 2003, where she remained employed as a teacher through the time of trial.

Concurrent with the wife's filing of her divorce complaint in June 2003, the Family Part entered a pendente lite order requiring the husband to pay the wife $150 in spousal support and $47 in child support on a weekly basis. The weekly spousal support component was reduced to $100 in January 2004, with the wife's consent, in recognition of her continued residency at her parents' home.

By the time that the parties' son was born in 1999, the husband's earnings had surpassed those of the wife. In that year the husband earned $45,150 and the wife earned $30,200. At the time of trial in 2004, the husband's earnings had grown to $75,800 per year; the wife was earning approximately $37,900.

As reflected by the proofs at trial, the parties had a relatively modest lifestyle before their separation, owing largely to the fact that the husband was enrolled full time in graduate school for half of those eight years. The parties did not own a home, living either in rental housing or with the wife's parents. The parties substantially relied upon student loans in addition to the wife's marital income. By the time the wife filed her complaint for divorce in 2003, her student loan balance was approximately $17,000 and the husband's student loan debt totaled nearly $68,000. The parties owned modest vehicles and had no significant investment assets.

Prior to trial, the parties resolved their issues of equitable distribution through a consent order. The consent order specified that each spouse would "retain personal property, vehicle[s] and assets in his/her possession," and also that "each party [agreed] to pay any debts in his/her own name."

The primary issues at trial were alimony, as well as custody and parenting time concerning the parties' preschool child. The sole witnesses at trial were the parties, the husband's mother and brother, the wife's mother, and a court-appointed custodial expert, Dr. David A. Davenport, a licensed psychologist. Dr. Davenport rendered a report before trial, following interviews with the parties, home visits, and observations of the child, in which he recommended that the mother be designated the parent of primary residence. Dr. Davenport also recommended a parenting plan in which the child would be with his father every other weekend during the school year and have four weeks of vacation with him each summer, plus various holidays. The psychologist also suggested that the parents undergo counseling to help them deal with certain challenges posed by their son's behavior, including his diagnosis by another provider with Attention Deficit Hyperactive Disorder (ADHD).

After considering the nine days of testimony and numerous exhibits, the trial judge rendered an oral decision on September 3, 2004, the terms of which were reduced to a final judgment of divorce dated September 24, 2004. The trial judge ruled, as recommended by Dr. Davenport, that the mother would be the parent of primary residence (PPR), with the father having parenting time on alternate weekends from Friday to Sunday evenings and with four weeks of summer vacation. The judge also awarded the mother $250 weekly in limited-duration alimony for a term of four years, plus $8,500 in reimbursement alimony payable at a rate of $500 every other month, along with child support of $124 per week pursuant to the New Jersey Child Support Guidelines. Additionally, the judge awarded the wife $10,000 in partial reimbursement of her counsel fees, also to be paid at the rate of $500 every other month. The final judgment also contained incidental provisions concerning the allocation of uninsured health care expenses, life insurance, and counseling, terms which are not contested on this appeal.

The father appealed the alimony awards, the parenting arrangements and the allowance of counsel fees. We have considered the trial record in its entirety, along with the oral arguments of counsel, in light of the applicable law. Based upon that review, we modify the award of reimbursement alimony, but otherwise affirm the final judgment in all other respects.

II.

In examining the trial judge's awards of limited-duration alimony and reimbursement alimony, we recognize that our scope of review is quite narrow. Specifically, we are to sustain the findings of fact of the trial judge so long as those findings are based upon substantial and credible evidence. Rova Farms Resort v. Inv. Ins. Co., 65 N.J. 474, 483-84 (1974); see also Cesare v. Cesare, 154 N.J. 394, 412-13 (1998) (instructing that special appellate deference shall be given to the factual findings of Family Part judges, given their expertise in such matters). Regarding the calculation of alimony in particular, we will not overturn such awards unless we conclude that the trial court "clearly abused its discretion, failed to consider all the controlling legal principles or . . .[are] well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence after considering the proofs as a whole." Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996) (citing Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993)); see also Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998) (alimony awards should be affirmed if supported by substantial credible evidence in the record as a whole).

A.

The husband first argues that the judge's award of limited- duration alimony was clearly erroneous. As a general matter, alimony "is an economic right that arises out of the marital relationship . . . [.]" Mani v. Mani, 183 N.J. 70, 80 (2005). It "provides the dependent spouse with 'a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage.'" Ibid. (quoting Koelble v. Koelble, 261 N.J. Super. 190, 192-93 (App. Div. 1992)).

These objectives of alimony are codified in a thirteen-factor test set forth in N.J.S.A. 2A:34-23(b). The trial judge duly considered each of these statutory factors, and we perceive no reason to disturb her overall assessment that the wife was entitled to alimony in this case based upon those factors. We note in this regard that the parties had an eleven-year marriage prior to the wife's filing her complaint for divorce in 2003, which is a length commonly deemed sufficient to justify alimony, perhaps even a permanent alimony award. In addition, at the time of the filing of the complaint, the husband was earning approximately double the wife's teacher salary, a circumstance supportive of his ability to pay alimony and her need to receive it. See Stiffler v. Stiffler, 304 N.J. Super. 96, 99 (Ch. Div. 1997) ("the central [statutory] factors [for alimony] consist of the duration of the marriage and the need for the one spouse to receive and the ability of the other spouse to pay alimony").

Limited-duration alimony (LDA), also known as term alimony, consists of alimony payable for a specific period of time. The Legislature has expressly authorized LDA as a permitted form of alimony, along with "rehabilitative" and "reimbursement" alimony. N.J.S.A. 2A:34-23(c)(1) to (3). The statute obligates a court to consider whether alimony is appropriate "for any or all" of those three categories. Ibid.

Limited-duration alimony is generally appropriate in cases, such as this one, involving marriages of intermediate or shorter length, in which the spouse seeking support has an economic need, but also possesses "the skills and education necessary to return to the workforce" at some time in the immediate future. Gordon v. Rozenwald, 380 N.J. Super. 55, 65-66 (App. Div. 2005) (citing Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000)). The record here supports such an award of LDA to the wife.

At the time of the filing of her divorce complaint, the wife and her son were living with her parents. As an untenured schoolteacher, she was earning a modest salary of $36,500 per year. Her Case Information Statement (CIS) reflected monthly living expenses of about $2,700, as compared with $1,932 in net monthly earned income. The wife's teaching credentials, however, provided her with skills and education that are likely to sustain her in the workforce on a long-term basis. Given these circumstances, we are satisfied that the trial judge reasonably determined that an alimony award of limited duration was appropriate, rather than the more extreme options of a permanent alimony award or the outright denial of alimony. The four-year alimony term selected by the trial judge reflected a sensible exercise of discretion and fairness.

The husband complains that the trial court predicated alimony on improper considerations of fault. He hinges that argument upon the trial court's passing reference in her oral opinion to the husband's extra-marital affair with a fellow employee while his wife was pregnant. We do not consider that passing reference to have tainted the trial judge's alimony analysis. The reality is that the husband's affair made it untenable for the parties to continue to reside together with their soon-to-be-born child, and the court's reference to that situation simply underscores the economic necessity for the wife to obtain support after relocating from the marital abode.

We also discern no abuse of discretion in the trial court calculating LDA at $250 per week, or approximately $13,000 per year. That amount represents only about one-sixth of the husband's gross annual earnings. It is not excessively burdensome. On the other hand, the LDA award represents a modest enhancement to the wife's earnings as a school teacher. It provides incremental assistance in helping the wife surmount her economic burdens, as well as resources that might enable her to move out of her parents' residence.

The husband argues that the alimony award must be vacated, and the case remanded, because the trial judge failed to make an explicit finding about the parties' actual marital lifestyle, and had alluded to their "anticipated" lifestyle upon their mutual completion of graduate studies. We do not regard the trial judge's brief reference to the parties' anticipated future lifestyle as improper; nor do we detect reversible error in the court's omission of a fixed economic figure representing the actual marital lifestyle.

The trial judge correctly recognized that the parties' lifestyle as husband and wife was "modest," and accordingly granted a modest amount of alimony over a quite limited time frame. The husband does not dispute that the parties enjoyed an increase in their combined earnings during the latter years of their marriage, and that they both expected those earnings to grow. In a broad sense, the standard of living "established" in the marriage, see N.J.S.A. 2A:34-23(b)(4), involved not only the sacrifices the parties incurred while completing their schooling but also their reciprocal expectations to share in the benefits of that higher education as the years progressed. We do not read with the same rigidity as the husband the Supreme Court's direction to matrimonial judges in Weishaus v. Weishaus, 180 N.J. 131, 145 (2004), requiring appropriate findings about the marital lifestyle. The trial judge's general, albeit unquantified, observations about the parties' modest lifestyle were ample to support the non-extravagant LDA relief she awarded.

We also reject the husband's argument that the LDA award is untenable because the trial judge failed to subtract the wife's $500 monthly student loan obligations from her budget. The husband correctly argues that the parties' respective student loan obligations were items of equitable distribution. It is true that the wife agreed by consent order to bear her own debts, as did the husband. See Larbig v. Larbig, 384 N.J. Super. 17, 27-28 (App. Div. 2006) (noting the impropriety of factoring an item covered by an agreement for equitable distribution into an alimony obligation). Accordingly, her monthly student loan obligation should not have been part of the court's budgetary analysis. We nevertheless do not regard the trial judge's $250 weekly alimony award as excessive. The amount is reasonable, even if the wife's $500 monthly student loan expenses are deleted from her budgetary needs. The wife's $430 monthly shelter expenses in her CIS were artificially suppressed by her continued residency with her parents, an arrangement that we ought not assume will or should persist indefinitely. We are mindful that the husband's student loan obligations far exceed those of his ex-wife, but that comparative indebtedness should not relieve the husband of his modest and temporary responsibility for spousal support.

For all of these reasons, and mindful of our deferential standard of review, we affirm the award of limited-duration alimony.

B.

The husband also challenges the trial judge's award of a lump sum of $8,500 in reimbursement alimony. Reimbursement alimony is designed to compensate a spouse who has contributed to the other spouse's obtaining an educational degree and who has suffered a loss or reduction of support, or who has incurred a lower standard of living, or has been deprived of a better standard of living in the future as a result of the divorce. Mahoney v. Mahoney, 91 N.J. 488, 501-04 (1982). The supporting spouse is entitled to receive consideration for "all financial contributions towards the former spouse's education. . . [.]" Id. at 501.

Here, the wife clearly supported her husband's pursuit of his graduate school education from the inception of the marriage in 1992 through his attainment of a master's degree in 1996. Throughout that period the wife worked full time, sacrificing her own education and career objectives, while the husband worked only part-time or did not work at all. The wife functioned as the sole breadwinner until the latter phases of the marriage when the husband had completed his studies. The situation plainly supports an award of reimbursement alimony.

The husband argues that no reimbursement alimony should have been awarded because his graduate degree is in counseling and his present occupation is in the computer field. He contends that his post-graduate success in the work force has nothing to do with his advanced higher education. We disagree. The trial judge reasonably inferred that the husband's master's-level education made him more attractive to prospective employers. His specific technical skills in computers may not have been covered in his graduate curriculum, but that does not mean that the husband has derived no advantage from his master's degree. To the contrary, it is eminently reasonable to regard the husband's present economic and occupational success as the by-product, at least in part, of the graduate schooling that his ex-wife helped support.

We do concur, however, with the husband that the trial judge erred in calculating reimbursement alimony with reference to the wife's own student loan debt of roughly $17,000 and dividing that sum by two. The wife's own school loans are, at best, a poor reflection of the financial contributions she made to support the advanced learning of her husband. The trial judge should not have used the $17,000 student loan figure as a point of reference in measuring the wife's right to reimbursement alimony.

That being said, we do not accept the husband's request that the reimbursement alimony award be reversed to zero, or alternatively be vacated and remanded for additional fact-finding. Although the present record is sparse as to the wife's financial contributions that would have supported the husband during his schooling, we do not deem it necessary to remand this case to a new judge for the purpose of making a record on these discrete numerical issues. Instead, we exercise our original jurisdiction under R. 2:10-5 and modify the reimbursement alimony downward from $8,500 to $5,000. The latter sum represents a fair resolution of this issue, in light of the considerable period of four years in which the wife supported her husband while he completed his masters' studies and in view of the husband's other present obligations. Appropriate credits shall be recognized by the parties to the extent the $5,000 modified amount has already been paid. We also do not disturb the trial judge's exercise of discretion in ordering that the reimbursement alimony be paid on an installment schedule of $500 every other month.

III.

Next, the father appeals the trial judge's decision to award the mother primary residential custody of the son, and the judge's ratification of the parenting-time plan recommended by Dr. Davenport. We affirm this determination as well.

The standard of review on matters of custody and parenting time is similarly deferential. The conclusions of trial judges regarding child custody are "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div. 1958), certif. denied, 28 N.J. 147 (1958).

The husband contends that he, rather than the mother, should have been designated the parent of primary residence. He also takes issue with the court's reduction of his parenting time, outside of the summer months, from a 50/50 arrangement to every other weekend. Those arguments are unpersuasive.

In rendering her decision on custody and parenting time, the trial judge properly considered the sixteen custodial factors set forth in N.J.S.A. 9:2-4(c). More fundamentally, her decision focused upon a careful assessment of the child's best interests. The trial judge afforded particular attention to the expert opinions of Dr. Davenport, whose evaluations were unrebutted by any competing expert testimony. The judge also duly considered the testimony of the parties, and relatives that they each summoned to testify.

Dr. Davenport, whose detailed twenty-three-page report was marked into evidence, found that the mother provided the "most comprehensive opportunities for [the son's] development" and "the most effective disciplinary approach." Although Dr. Davenport acknowledged that the husband was a full-time parent, he identified significant concerns about the father's permissiveness and ineffectiveness in dealing with his five-year-old son's aggressive and defiant behavior. The doctor also expressed concerns about the father's conduct in making unsubstantiated reports of child abuse and neglect to the Division of Youth and Family Services (DYFS) concerning the mother, arising out of an incident in which she had placed pepper in the child's mouth and the child's assertions that the mother had left him alone in the car and in a closet. The father also was faulted for unilaterally taking the child for an ADHD evaluation without consulting with the mother in advance.

On the whole, the trial judge concluded that the mother was "the parent who was better able to provide the highly-structured environment that [the son] needs and [would] set behavioral expectations and limits so needed by [him]." The judge also determined that the mother was more likely than the father to involve the other parent in the child's life and in decision-making. Those findings are supported by substantial credible evidence, notwithstanding the father's identification on appeal of miscellaneous factual errors in the court's lengthy custody analysis. We have fully considered those errors and regard them as minor and inadequate to detract from the overall wisdom of the trial judge's designation of the child's primary residency.

We also reject the father's objections to the diminution of his parenting time during the school year in light of the fact that the child was about to enter kindergarten as the trial ended, and given the seventy-mile distance between the parties' homes. We agree with the trial judge that it was logistically infeasible for the child to continue to be with his parents on a 50/50 basis once his full-time schooling began. We also shall not disturb the parenting time arrangements set forth in the final judgment, which provided the father with consistent time with his son on alternate weekends during the school year and enhanced time during the summer, or about eighty overnights per year.

The custody and parenting time rulings are affirmed in all respects.

IV.

Lastly, the husband challenges the discretionary award of $10,000 in counsel fees to the wife. We are satisfied from our own review of the record that the award was eminently reasonable and in accord with the factors enumerated in R. 5:3-5(c) and Williams v. Williams, 59 N.J. 229, 233 (1971). Without discussing all of the pertinent factors here, it will suffice to say that the large disparity in the parties' incomes, the considerable degree of success achieved by the wife on the contested issues; and the failure of the husband to supply a certification showing an inability to pay his own counsel fees particularly show the fairness of the court in awarding the wife $10,000 of the counsel fees she incurred, which were in excess of $44,000. We discern no abuse of discretion in calibrating the award, and the court's $500 bimonthly payment schedule bespeaks an appropriate sensitivity to the husband's cash flow limitations.

 
Affirmed as modified.

The thirteen factors are:

(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 which the court may deem relevant . . .

In at least one prior instance, we have considered a ten-year marriage, "[b]y today's standards," not to constitute a short-term" marriage under the particular facts of that case, and therefore reversed a trial judge's denial of permanent alimony. See Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998).

At oral argument, counsel for both parties expressed a preference for our exercise of original jurisdiction, in lieu of a remand, if we determined that any economic aspects of the final judgment warranted modification. Additionally, we note that the judge who tried the case is no longer on the bench.

The husband had retained a psychologist to perform a custody and parenting time assessment, but chose not to call this expert at trial. This led the trial court to draw an appropriate adverse inference that the husband's expert would not have refuted the opinions of Dr. Davenport. Maul v. Kirman, 270 N.J. Super. 596 (App. Div. 1994).

(continued)

(continued)

23

A-1089-04T3

July 26, 2006