ANN MARIE MILBERG v. BARRY S. MILBERG

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5195-03T55195-03T5

ANN MARIE MILBERG,

Plaintiff-Appellant/

Cross-Respondent,

v.

BARRY S. MILBERG,

Defendant-Respondent/

Cross-Appellant.

______________________________________________________________

 

Submitted April 26, 2006 - Decided September 5, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

FM-2-2543-00.

Rosenfelt & D'Amato, attorneys for appellant/

cross-respondent (Kenneth F. D'Amato, of

counsel and on the brief).

Carolyn R. Kristal, attorney for respondent/

cross-appellant.

PER CURIAM

The parties were married on May 8, 1987, and their judgment of divorce is dated April 14, 2004. They have two sons, Adam and Andrew. Their divorce trial was conducted on twenty-two non-consecutive days, beginning on September 8, 2003, and ending on January 16, 2004. The trial court rendered an eleven-page written decision on March 25, 2004.

Plaintiff Ann Marie Milberg presents the following arguments on appeal:

POINT I

THE TRIAL COURT'S FINDINGS AND CONCLUSIONS REGARDING ALIMONY, EQUITABLE DISTRIBUTION, CHILD SUPPORT AND COUNSEL FEES ARE CLEARLY AGAINST THE WEIGHT OF [sic] EVIDENCE, AND THE AWARDS INADEQUATE.

POINT II

THE COURT IMPROPERLY DENIED PLAINTIFF DECISION MAKING AUTHORITY REGARDING ANDREW'S EDUCATION AND HEALTH.

On his cross-appeal, defendant Barry S. Milberg makes the following arguments:

POINT I [CROSS-APPELLANT'S POINT III]

THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THE PREMARITAL AGREEMENT INVALID BASED ON CHANGED CIRCUMSTANCES. THE AGREEMENT IS NOT UNCONSCIONABLE AND SHOULD HAVE BEEN ENFORCED.

POINT II [CROSS-APPELLANT'S POINT IV]

THE TRIAL COURT ABUSED ITS DISCRETION IN NOT AWARDING COUNSEL FEES TO BARRY.

After reviewing the record and applicable law in light of the contentions advanced by the parties, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

At the outset, we recognize that the scope of our review is limited. A trial court's findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[A]n appellate court should not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (second alteration in original) (internal quotation marks omitted). Such deference is particularly appropriate when the evidence is mostly testimonial and involves questions of credibility. Ibid. "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (alteration in original) (internal quotation marks omitted). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Plaintiff was nineteen years old when she met defendant, who was ten or eleven years older than she was. She had completed nine months of secretarial school after high school and was working as a receptionist for a sales marketing firm in New York.

Defendant had completed a year-and-a-half of college, and he had two children with his first wife. Defendant was an accountant with his own practice until 1998. Defendant testified that his business, Barry S. Milberg, Inc., was a consulting firm that created financial programs for large non-profit institutions.

The parties lived together for several years prior to their marriage in 1987. At some point, plaintiff became pregnant. According to plaintiff, defendant was not happy about the pregnancy, but he finally agreed to get married after she was eight months pregnant.

Plaintiff testified that it was a "total surprise" when defendant presented her with a prenuptial agreement a few days before the wedding. Plaintiff testified she signed the prenuptial agreement an hour before the wedding on May 8, 1987, because defendant refused to go ahead with the marriage unless she signed the agreement. Plaintiff also claimed that she only owned a car that she was still making payments on, and she did not know the extent of defendant's earnings or assets when the parties were married. According to plaintiff, she had "absolutely no choice" but to sign the agreement because: "I had no money. I had no apartment anymore. I had no way of taking care of myself and supporting a child."

Defendant testified that he presented the prenuptial agreement to plaintiff "weeks" before they got married, but he also conceded that plaintiff was eight months pregnant at the time he gave it to her. According to defendant, the parties "went to a couples therapist to see if there was a potential for [the] marriage to work out," and they discussed "the prenuptial agreement and everything" with the therapist. Defendant testified he "had no intention of marrying Ann Marie. I just didn't want to have another child out of wedlock." When defendant was asked why plaintiff signed the prenuptial agreement at City Hall, he answered: "Because she thought I was bluffing and I got up to walk out. Bingo, it got signed." According to defendant, he wanted a prenuptial agreement to avoid the kind of problems he had with his first wife over custody and visitation with his children. Defendant also claimed that he had no assets when he met plaintiff because of his prior divorce and his obligation to pay unallocated support to his first wife and children in the amount of $225 per week.

The prenuptial agreement included the following language:

5.2 Alimony, Maintenance or Support. It is specifically agreed that upon termination of the marriage, ANN MARIE PEDULLA shall be entitled to receive rehabilitative alimony for a period of three (3) years or until the youngest child of the marriage reaches the age of six (6), whichever is longer. The amount of alimony shall be established by agreement between the parties or by any court of competent jurisdiction. The parties specifically waive any right to permanent or long-term alimony, maintenance or support upon termination of the marriage, as each has sufficient assets in his or her own name with which to provide for his or her own needs or expenses beyond the provisions set forth herein.

5.3 Custody. The parties specifically acknowledge their intent to have joint custody of any children born of the marriage. In furtherance of this custody arrangement, the parties agree that neither of them will establish a residence more than seventy (70) miles from the location of the marital residence at the time of any separation. As BARRY MILBERG has obligations to his children of a prior marriage, it is specifically agreed that in the event ANN MARIE PEDULLA establishes residence more than 15 miles from the former marital residence, she will personally transport the children to BARRY MILBERG'S residence to accomplish the intended joint custodial arrangement. As compensation for transportation expenses, BARRY MILBERG shall reimburse ANN MARIE PEDULLA two times the amount permitted by the IRS as the allowable business mileage deduction for Federal Income tax purposes plus any tolls.

Adam was born on June 7, 1987, approximately four weeks after the wedding. In March of the following year, the parties purchased a four-bedroom house in Oradell, which was appraised at $500,000 prior to trial. The parties' second child, Andrew, was born on December 24, 1988.

Plaintiff testified that the family frequently traveled during the marriage, taking trips to Club Med, Argentina, Florida, the Bahamas, Puerto Rico, Chile, Las Vegas, Cape Cod, Arizona, and Mexico. Plaintiff also testified that she took the children to Disney World every year by herself. During the trip to Mexico, the family stayed with her sister, and they sometimes stayed with defendant's brother in Cape Cod, and with his parents in Arizona. Plaintiff had no idea what the trips cost.

The parties had a nanny until Andrew was two and a half or three years old, and the nanny went on one of the trips to Florida. After the nanny's employment concluded, the parties had a "regular cleaning girl" every week, and a landscaper took care of the lawn on a weekly basis.

Plaintiff drove new minivans and defendant drove Cadillacs and Lincolns. She got a new car about every three years. They went out to dinner twice a week, with and without the children. Defendant bought plaintiff fur coats and jewelry and gave her $500 per week spending money; defendant's company paid the household bills. Plaintiff received the $500 per week by writing out checks to herself from the business account and either depositing them in the joint checking account or cashing them.

Plaintiff testified she shopped at Bloomingdale's and Nordstrom, and she charged clothing on eight or ten credit cards that were available to her. The boys were involved in a variety of recreational activities including snowboarding, skiing, paintball, and skating. Plaintiff had her hair styled in a salon every couple of weeks, and she had weekly manicures and pedicures. She had facials at least once a month and occasional massages. Plaintiff also belonged to a health club.

Defendant testified that he accumulated a debt to the Internal Revenue Service during the marriage because of plaintiff's financial demands. During the trial, defendant was asked if it was "fair to say that the money that you owed in taxes was money that was spent during your marriage to live on"? He answered: [I]t's worse than that. I borrowed money to buy the house, gave that money to Ann Marie, . . . . [C]ouldn't pay that money back. There are other debts." Defendant subsequently agreed, however, that he had paid all of his income taxes since 1992, and the court concluded that the parties were not "living off of unpaid taxes since about 1991-92."

During cross-examination, defendant acknowledged that plaintiff took frequent trips with the children, and he agreed that the family enjoyed a "nice" lifestyle:

I never spent a lot of money. I never bought clothes. I didn't do much spending. My one luxury, which the company paid for, was a car. Mrs. Milberg traveled extensively with our children to South America[], to Mexico, to Florida, every year. There's no money left after she spent it all.

. . . .

THE COURT: But my question -- I'm trying to understand your testimony that she is . . . enjoying, in your opinion, during this marriage a high lifestyle.

THE WITNESS: Well, well I'm not -- you know, it was nice.

THE COURT: But where was the money coming from?

THE WITNESS: From . . . taxes, from borrowing. It was [w]ay more than I made. There's not a penny in pension. There's not a penny in savings, and there never has been.

According to plaintiff, defendant never told her that he could not afford the family activities, and he never asked her to curtail expenses. Defendant, however, testified that when he took plaintiff's credit cards away from her, "the marriage became more problematical."

Plaintiff testified that defendant's demeanor towards her changed at some point, and she ultimately learned that he was having a relationship with his secretary. Plaintiff testified she came home early from a weekend trip with the children and found defendant and the secretary together in the marital bed. According to plaintiff, "[t]hey were both clothed. . . . [S]he was laying with her head in his lap. She was flipping through a magazine. . . . [T]he television was on and there were two glasses of wine on the night table."

Defendant testified that he knew plaintiff was coming home "[s]o [he] got into bed with Miss Mitchell." He admitted that he "orchestrated" the "encounter." Defendant claimed that he and plaintiff had a verbal agreement that they did not have to be monogamous but that he could not "embarrass her by bringing somebody home." He testified that he orchestrated the encounter to embarrass plaintiff, because he wanted her "to really clearly understand that our arrangement was over." The parties separated in December 1999.

The Uniform Premarital Agreement Act ("the Uniform Act"), enacted in 1988, governs the contents and enforcement of premarital agreements. See N.J.S.A. 37:2-31 to -41. Because the parties in this case executed their agreement in 1987, it is not subject to the provisions of the Uniform Act. N.J.S.A. 37:2-41. However, "[p]remarital agreements executed before the Uniform Act are . . . enforceable, so long as they satisfy certain conditions." Savage-Keough v. Keough, 373 N.J. Super. 198, 202 (App. Div. 2004). "To be enforceable, an antenuptial agreement signed prior to the passage of the Uniform Act must be voluntarily entered into, not unconscionable, and based on full financial disclosure." Id. at 203. Some of the factors courts consider in determining enforceability of an antenuptial agreement are the opportunity the spouse had to obtain legal advice and to reflect on the decision to sign the agreement. Hawxhurst v. Hawxhurst, 318 N.J. Super. 72, 80 (App. Div. 1998). In other words, "[p]re-nuptial agreements made in contemplation of marriage are enforceable if they are fair and just." Pacelli v. Pacelli, 319 N.J. Super. 185, 189 (App. Div.), certif. denied, 161 N.J. 147 (1999).

Here, the trial court found that in 1986, the year before the prenuptial agreement was signed, plaintiff earned approximately $16,000 and defendant earned approximately $36,000, but that plaintiff "was a homemaker during almost the entire marriage." At the time of trial, plaintiff was working part-time as a secretary/receptionist for a psychiatrist earning approximately $15 per hour. Nevertheless, the trial court found that plaintiff could earn "at a minimum $35,000 to $40,000 per year as a very competent secretary if not a paralegal," but the court also found that the parties' "difference in potential income" was close to $100,000. Because of the disparity in the parties' earning potential and the length of the marriage, the trial court concluded that the prenuptial agreement was "not only unreasonable but unconscionable." Moreover, even if defendant presented plaintiff with the proposed agreement four weeks before the wedding, as he testified, when she was eight months pregnant, the totality of the circumstances supports the conclusion that the agreement is not enforceable.

The trial court ordered defendant to pay plaintiff alimony in the amount of $2,500 per month. Its reasons for doing so included the following:

[T]he court believes that the Plaintiff does not have a realistic grasp on the parties['] financial situation. The Defendant, throughout the marriage, has indulged the financial whims of the Plaintiff thus creating the aura that money was no object. Clearly, the Plaintiff was permitted to write corporate checks for whatever she desired. The Defendant created an illusion that he was a money tree and the Plaintiff reveled in it. The fact is this couple was living up to and beyond their means.

Unfortunately, the Plaintiff came to accept that as a reality instead of a fiction. The court cannot make a silk purse out of a sow's ear. The court truly believes that Defendant's gross income is legitimately $134,000 per year. The court is not convinced that Plaintiff has proven a marital lifestyle significantly higher than what this decision together with an imputed income will provide her net of taxes. It also believes that Plaintiff's asserted life style is not sustainable on Defendant's legitimate income. Plaintiff can't expect she will receive alimony commensurate with the life style that she grew into during the last five years of the marriage. Defendant has offered to be responsible for the children's needs including school. Plaintiff can't have it both ways. If Defendant is going to assume the costs of their education and support, Defendant just can't afford to pay Plaintiff's demands.

Defendant is not going to be happy with the court's decision either. Plaintiff is relatively young and can work full time. She probably can earn $40,000 per year. While Defendant is providing child support and whatever it costs for Adam at DiSisto or some other private school, he can only afford to pay Plaintiff $2,500 per month in alimony with child support for Andrew of $234 per week.

Thus, the trial court focused on defendant's ability to pay, and, at the time, defendant's ability to pay was severely limited because he was paying for Adam's attendance at an expensive private school, which cost "+/- $75,000 per year." That expense, however, no longer exists. Adam turned eighteen on June 7, 2005, and he is no longer attending the DiSisto School. Moreover, defendant's ability to pay alimony is only one of the statutory factors to be considered when determining the amount of alimony to be paid.

The basic purpose of alimony 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 supporting spouse's obligation is set at a level that will maintain that standard." Innes v. Innes, 117 N.J. 496, 503 (1990) (citing Lepis v. Lepis, 83 N.J. 139, 150 (1980)). "Bare survival is not the proper standard, it is the quality of the economic life during the marriage that determines alimony." Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998).

N.J.S.A. 2A:34-23(b) sets out twelve, non-exclusive factors that a court must consider in deciding whether to award permanent alimony and, if so, in what amount. The three most important considerations in fixing an alimony award are: (1) the dependent spouse's needs; (2) the dependent spouse's ability to contribute to the fulfillment of those needs; and (3) the supporting spouse's ability to maintain the dependent spouse at the former standard of living to which the parties had become accustomed prior to their separation. Crews, supra, 164 N.J. at 24.

When reviewing an alimony award, we consider whether the trial court's findings are supported by sufficient credible evidence present in the record, whether the trial court failed to consider controlling legal principles, and whether the trial court abused its discretion. Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996). Plaintiff argues that the trial court failed to consider all of the relevant factors, failed to accurately analyze defendant's past earnings, and "failed to evaluate or make findings regarding defendant's earning capacity." Based on our review of the record, we find these arguments persuasive.

The trial court found that between 1995 and 1999, defendant's "adjusted gross income was +/- $184,000 per year." As part of its calculations, the trial court imputed an income for 1996 of $140,000 because there were no tax returns for that year. In other years, however, defendant filed a separate income tax return in plaintiff's name with the filing status of married filing separately, together with his own return. These returns show that the average annual adjusted gross income for the period from 1995 to 1997 was $205,511.66 calculated as follows:

1995 $ 207,709

1996 No returns available

1997 201,606

1998 207,220

__________

$ 616,535 3 = $205,511.66

For 1999, the year the parties separated, defendant filed a joint tax return showing an adjusted gross income of $143,877. But he testified that in 1999, he actually received a total of $220,000:

THE COURT: -- how much of that did you actually collect?

THE WITNESS: In 1999, I collected $100,000 --

THE COURT: Of that --

THE WITNESS: -- that I already paid tax on in prior years.

THE COURT: Which would be part of that --

THE WITNESS: Part of that year, part of the year before that, part of the year before that. So in 1999, I had $100,000 of nontaxable income. After that, it just stopped, because I wound down the corporation.

THE COURT: All right. So in 1999, at what point did you become an employee of the present --

THE WITNESS: One, I've been an employee of Larsen and I became an employee of SMMW on 1/1/99.

THE COURT: And your salary for 1/1/99 was?

THE WITNESS: A hundred and twenty thousand.

THE COURT: So in '99 cash flow you actually collected $220,000?

THE WITNESS: That is correct.

Later the same day, however, defendant agreed that his gross income for 1999 was $181,000, and that none of it was salary:

THE COURT: He received $41,532 on account of receivables. In addition to that, the pass through from the corporation to him was $131,300. It wasn't salary.

MR. ROSENFELT: [Plaintiff's Attorney] So what was his '99 income, Judge?

THE COURT: His '99 income would be, gross, 143 plus I think the 41,000.

Is that right?

THE WITNESS: Correct.

MR. ROSENFELT: So his gross income was $181,000.

THE COURT: Right.

MR. ROSENFELT: In 1999.

THE COURT: That's right. And he just testified to that.

In light of this conflicting testimony regarding defendant's income in 1999, and the trial court's failure to explain the basis for imputing only $140,000 of income for 1996, we are satisfied that defendant's average gross income for the five-year period from 1995 to 1999 substantially exceeded the figure calculated by the trial court. In addition, we conclude that the trial court failed to establish plaintiff's reasonable needs, and it failed to make specific findings with respect to other relevant statutory factors, including defendant's earning capacity. N.J.S.A. 2A:34-23(b)(5); see also Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.), certif. denied, 81 N.J. 52 (1979) (noting that "earning capacity or prospective earnings" are proper elements for the court's consideration when determining the amount of alimony to be paid).

Plaintiff also argues that although she is capable of working, and does in fact work part-time, "the court's imputation of income in the amount of $40,000 is unrealistic and unsupported by any evidence offered at trial." We agree that the evidence was insufficient to support the finding that plaintiff "probably can earn $40,000 per year" as a secretary or paralegal. Finally, plaintiff notes that the trial court failed to consider whether income should be imputed to defendant, because he is voluntarily underemployed. We are confident that these arguments will be addressed at the remand hearing and that the trial court will take into consideration all of the relevant facts and circumstances when determining the appropriate amount of permanent alimony to be paid by defendant to plaintiff.

Because of the need to reconsider and redetermine alimony, the child support award will also have to be recalculated. Moreover, the trial court recognized the need to "revisit" defendant's child support obligation "when Adam's situation changes or in the event Andrew's situation should change." Although the present record does not fully reflect Adam's and Andrew's current situation, it is clear that Adam is now nineteen years old, and he is not attending the DiSisto school. Thus, defendant's child support obligation must be reconsidered at the remand hearing.

Plaintiff also contends that the trial court erred in denying her decision-making authority for Andrew's health and education. The relevant provisions of the judgment of divorce are as follows:

3. Custody of Andrew

a. Residential custody of Andrew shall remain with the Plaintiff, as [long] as she continues to reside in the present school district, River Dell, i.e., she resides in River Edge or Oradell, Bergen County, New Jersey.

b. If Plaintiff moves out of that school district, residential custody shall be reassessed.

c. Defendant shall be responsible for making the educational and medical decisions regarding Andrew, these decisions must be in accordance with the recommendations made by the child study team. Defendant needs to learn to work cooperatively with the child study team in regard to their recommendations.

The trial court's findings and conclusions on this issue were limited to the following:

Neither party wants the other party to have the major decision making power. Clearly Andrew should reside with his mother, as long as she remains in the River Dell School system and Defendant may have the visitation he requests, as well as visitation with Andrew on Father's Day. Any major decision concerning Andrew's education and health shall be made by the Defendant and must be in accordance with Dr. Sugarman's recommendations.

Although Dr. Sugarman did recommend that "educational and medical decisions regarding Andrew" should be defendant's responsibility, he failed to adequately explain the basis for his recommendation. In addition, Dr. Sugarman's report to the court noted that defendant "tends to overestimate Andrew's academic and intellectual abilities." Consequently, Dr. Sugarman's report contains this additional recommendation to the court: "While [defendant] will have the responsibility for making the educational and medical decisions regarding Andrew, these decisions must be in accordance with the recommendations made by the child study team." We conclude that the trial court abused its discretion when it granted the child study team final decision-making authority for Andrew's health and education.

As noted in Dr. Sugarman's report, defendant acknowledged that "it would be in Andrew's best interests for his mother to continue to have residential custody." Dr. Sugarman also reported that Andrew told him, "I want to live with my mom and I want her to be the one who makes decisions." Given these circumstances, and in light of Andrew's age, the court must set forth its specific findings and conclusions regarding this issue.

Plaintiff also claims that the trial court erred in determining that the business known as Barry S. Milberg, Inc. was not subject to equitable distribution because it was "no longer a viable entity." Plaintiff concedes, however, that she "was not able to value the business due to her limited funds and the fact that defendant actually stopped 'operating' the company." According to plaintiff, the court "should have taken into account the business and defendant's conduct when it distributed the parties' only asset, the marital residence." The trial court ordered that the equity in the marital home was to be equally divided, and plaintiff subsequently purchased defendant's interest in the home.

A trial court has broad discretion in determining how to divide marital assets. Wadlow v. Wadlow, 200 N.J. Super. 372, 377 (App. Div. 1985). The applicable standard of review is whether the allocation falls within a reasonable exercise of the trial judge's discretion. See LaSala v. LaSala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001); Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978). Here, based on our review of the record, we find no abuse of discretion or reversible error.

Each of the parties claims that the trial court erred in failing to award counsel fees. While an allowance for counsel fees and costs in a matrimonial case is discretionary, Williams v. Williams, 59 N.J. 229, 233 (1971), N.J.S.A. 2A:34-23 requires a court to "consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." Moreover, R. 5:3-5(c) requires a court to consider, in addition to the information required to be submitted pursuant to R. 4:42-9, 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 resonableness 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.

In this case, the trial court failed to analyze these pertinent factors. See Mayer v. Mayer, 180 N.J. Super. 164, 169-70 (App. Div.) (noting award of counsel fees involves critical review of nature and extent of services rendered, complexity and difficulty of issues determined, and reasonableness and necessity of time spent by counsel rendering legal services), certif. denied, 88 N.J. 494 (1981). We therefore remand this issue to the trial court. See R. 1:7-4(a) (requiring the trial court to make findings of fact and conclusions of law on each issue).

We have considered each of the remaining contentions raised by the parties in light of the record, the briefs, and the applicable legal principles, and we conclude that they are without merit and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) & (E).

As to plaintiff's appeal, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. With respect to defendant's cross-appeal, we affirm in part and remand for further proceedings in accordance with this opinion. We do not retain jurisdiction.

 

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