PETER VIGLIONE v. DIANNE VIGLIONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4096-03T34096-03T3

PETER VIGLIONE,

Plaintiff-Appellant,

v.

DIANNE VIGLIONE,

Defendant-Respondent.

____________________________

 

Argued February 7, 2006 - Decided March 1, 2006

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Passaic County, FM-02-10120-94

and FM-16-00062-96.

Richard S. Diamond argued the cause for

appellant (Diamond and Diamond, attorneys;

Mr. Diamond on the brief).

Robert T. Corcoran argued the cause for

respondent (Robert T. Corcoran and Associates,

attorneys; Mr. Corcoran, of counsel and on the

brief; Jason J. Miller, on the brief).

PER CURIAM

The parties cross-appeal from a post-judgment order entered by Judge Burrell I. Humphreys converting plaintiff's rehabilitative alimony obligation to one for permanent alimony. Defendant also appeals from a separate order denying reconsideration of the quantum of fees awarded to her. We affirm.

The parties were married on June 9, 1973, and divorced on October 18, 1995, by a dual judgment, which incorporated their property settlement agreement. That agreement resolved all issues of support for their now-emancipated children, equitable distribution, and alimony. The alimony was rehabilitative and in the amount of $40,000 for a period of eight years, commencing October 1, 1995. In 1999, defendant moved for a "restructuring" of the alimony. Judge Ferrante entered an order on July 16, 1999, requiring a plenary hearing to determine "whether or not plaintiff's alimony obligation to defendant must be restructured due to plaintiff's provable ability to pay, and defendant's demonstrable need for additional, on-going support."

Substantial discovery disputes ensued, but, eventually, the matter was assigned to Judge Humphreys who received evidence over nine days between September 17, 2003, and October 7, 2003. The judge issued a comprehensive, sixteen page opinion in which he concluded that the rehabilitative alimony must be converted to permanent alimony in the amount of $20,000 per year. Judge Humphreys recognized that rehabilitative alimony "is payable for a terminable period, a period of time after which it is reasonably anticipated that the former spouse will no longer need support. Crews [v. Crews, 164 N.J. 11, 34 (2003)]." When the dependent spouse is able to demonstrate an inability to achieve the anticipated level of self-sufficiency, rehabilitative alimony may be converted to permanent alimony. Milner v. Milner, 288 N.J. Super. 209 (App. Div. 1996). Accordingly, Judge Humphreys believed it was necessary for him to

make the following findings: 1) What was the parties' marital standard of living; 2) Has defendant demonstrated that despite her efforts she has not reached the level of self-sufficiency that would permit her to live at the standard of living reasonably comparable to that established during the marriage; 3) If the defendant has so demonstrated, then a) what is the plaintiff's present financial condition and ability to so maintain the defendant; b) what would be an equitable award to the defendant?

Judge Humphreys ultimately concluded that:

1) the parties' marital standard was very comfortable; 2) defendant has demonstrated an inability to reach a level of self-sufficiency which would enable her to maintain a standard of living reasonably comparable to the marital standard of living; 3) the court will exercise its equitable power by awarding plaintiff a reasonable amount of permanent alimony; 4) plaintiff's ability to contribute to her support is approximately $35,000 a year; 5) plaintiff is not able at present to pay an amount of alimony which is sufficient to maintain the defendant at the marital standard of living; 6) An equitable award of permanent alimony is $20,000 a year.

These findings are "supported by adequate, substantial, and credible evidence" and the legal conclusions drawn from those facts are appropriate. They may not, therefore, be disturbed on appeal. Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); Rolnick v. Rolnick, 262 N.J. Super. 343, 358-59 (App. Div. 1993). Each party's claim to the contrary is nothing more than a complaint that Judge Humphreys failed to allocate the weight of the evidence in accordance with the position of that party at the hearing. We affirm the conversion of rehabilitative to permanent alimony in the amount of $20,000 per year for the reasons set out by Judge Humphreys in his January 5, 2004, opinion. We add only the following brief comments.

Plaintiff argued, both before Judge Humphreys and on appeal, that the agreement with respect to limited duration alimony was the product of negotiations and reached as part of an overall settlement. It should, therefore, according to plaintiff, be given substantial, if not controlling, weight. That argument fails to recognize Judge Humphreys's findings that, although defendant obtained substantial benefit from the Property Settlement Agreement,

[p]laintiff also received substantial benefits from the agreement. Defendant gave up any interests she might have had in his businesses. If the parties had not settled the case, plaintiff's very substantial income and his excellent financial condition would have justified a large permanent alimony award to the defendant, a supported spouse in a 20-year-old marriage who had enjoyed a very comfortable marital life style.

Further, the agreement resulted from hard bargaining during a trial. Both parties had experienced and able counsel. The agreement was a fair and reasonable compromise of the parties' rights and obligations. The defendant did not receive an unusually large amount of equitable distribution.

It also fails to recognize that the parties' agreement cannot deprive a court of its equitable powers respecting the support of a dependent spouse. Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993).

Plaintiff also complains that he was prevented from examining defendant's divorce trial counsel with respect to the understanding of the parties concerning the alimony provisions and the fact that they were the result of a negotiated agreement. We see neither error nor prejudice. Judge Humphreys recognized that "the agreement resulted from hard bargaining during the trial." He also recognized that both parties had received benefits from the agreement. Accordingly, the point to be developed by discovery was accepted by the judge. Nor would any agreement by defendant not to seek an extension of the alimony be binding on Judge Humphreys. His decision was based on the inability of plaintiff to achieve the level of self-sufficiency contemplated by the agreement. Given that inability, Judge Humphreys believed it appropriate to insure continued alimony and that decision falls well within the scope of the judge's discretion.

Similarly we find no basis for attack on the amount of the alimony awarded. The judge recognized that plaintiff had divested himself of his businesses, but found that he was, nevertheless, able to generate sufficient income as a result of his "considerable business acumen" and his substantial assets. Defendant has no valid complaint with respect to these conclusions. Plaintiff objects to the judge's imputation to her of $30,000 in income. However, at the time of the hearing in September, 2003, defendant had just completed a five-week temporary assignment for which she earned $2,800. This translates to an annual salary of approximately $30,000. This evidence, together with the evidence of defendant's skills and her prior history, supports the judge's findings.

At the argument before us, plaintiff complained that he was denied the opportunity to discover defendant's financial condition. Our review of the record reveals deep disputes concerning his discovery requests and the discharge of his discovery obligations. The discovery orders of which he complains appear to have support. Nevertheless, this issue was not briefed and, accordingly, is deemed waived. Liebling v. Garden State Idemn., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).

Defendant also appeals from the award of $40,000 in fees. Judge Humphreys accepted submissions with respect to the fees and issued an eleven page opinion dated April 12, 2004. He recognized the factors governing the award of fees set out in R. 5:3-5(c) and ultimately concluded that $40,000 was appropriate, given the financial ability he had ascribed to each of the parties in his prior opinion. In making his award, he announced that he provided compensation for the reasonable expenses of one attorney during the nine-day trial and only insofar as the trial dealt with the alimony issue. He also allowed fees incurred in discovery related to that claim. Judge Humphreys declined to award fees incurred as the result of any other issue or insofar as those fees represented the work of more than one attorney. That disposition comports with our law and was well within his discretion. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004).

Although Judge Humphreys initially criticized, as inadequate, the submissions in support of the fee application, he did not change his initial ruling when those deficiencies were corrected. Indeed, the corrections did not require a change. The judge demonstrated an awareness of the appropriate factors and sufficiently evaluated the record before him. We have no reason to disturb his award of fees.

 
Affirmed.

(continued)

(continued)

8

A-4096-03T3

March 1, 2006