TANYA DUBROW v. DAVID DUBROW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6549-03T16549-03T1

TANYA DUBROW,

Plaintiff-Respondent/

Cross-Appellant,

v.

DAVID DUBROW,

Defendant-Appellant/

Cross/Respondent.

____________________________________

 

Argued January 18, 2006 - Decided February 16, 2006

Before Judges Kestin, Lefelt, and Seltzer.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Essex County, Docket No.

FM-07-916-00.

Richard H. Singer, Jr. argued the

cause for appellant (Skoloff & Wolfe,

attorneys; Mr. Singer, on the brief).

Cathleen G. McDonough argued the cause

for respondent (Newman, McDonough,

Schofel & Giger, attorneys; Ms.

McDonough and Laurence Desind,

on the brief).

PER CURIAM

After twenty-three years of marriage, during which Plaintiff Tanya Dubrow and her husband defendant David Dubrow enjoyed a very comfortable lifestyle, plaintiff sued defendant for divorce based upon extreme cruelty, and defendant counterclaimed for divorce upon the same grounds. The parties resolved most of the economic issues, but tried the alimony and counsel fee issues before Judge Zampino. Defendant and plaintiff respectively appeal and cross-appeal from Judge Zampino's resolution of those issues. We affirm.

At the time of trial, plaintiff was a fifty-one year old high school graduate who had earned some college credits from the Fashion Institute of Technology. Although plaintiff once possessed a real estate license, she had very limited work experience. Defendant, at the time of trial, owned a management corporation and owned or had an interest in several other business entities and pieces of commercial real estate. His business is managing real estate, and purchasing, developing, and selling commercial properties. In 2002, defendant's net income was $1,098,672 and his gross earnings were $1,613,402. The parties had one child, who at the time of trial was twenty-six years old and emancipated.

The parties engaged in extensive proceedings, which resulted in an order that directed defendant to pay plaintiff $8,500 per month in pendente lite support. In addition, defendant was to pay plaintiff's transportation costs along with rent, utilities, and telephone expenses, in anticipation of plaintiff leaving the marital home. Furthermore, defendant was directed to advance plaintiff $30,000 for her counsel and expert fees.

The equitable distribution issues were settled over a period of several months. These agreements required defendant to pay plaintiff $350,000 for her interest in three Newark properties; to pay plaintiff $2,100,000, $100,000 of which represented defendant's contribution to plaintiff's professional fees; and to allow plaintiff to retain title to the marital residence and its contents. The marital home is located in Montclair on a 1.5 acre lot and has sixteen rooms and six bedrooms. For her part, plaintiff agreed to allow defendant to retain business and other assets that had been titled in his name.

The parties also agreed to become equal partners in the Riviera Hotel, a Newark rooming house. Furthermore, after title was cleared, the parties agreed that they would sell the Hotel. Regarding profits from the Hotel, plaintiff, in full satisfaction of her share of profits earned in the second half of 2003, was to receive the first $100,000 earned from that property in 2004. From then onward, the parties agreed to divide equally all profits from the Hotel.

Less than one month after finishing the multi-day trial, Judge Zampino issued letter opinions addressing spousal support and counsel fees. The judge set spousal support at $227,000 per year, or $18,900 per month, predicated on defendant's annual taxable gross income being between $700,000 and $1,200,000. The judge also found that should defendant retire at age sixty-two or later, the retirement would constitute a change of circumstances for spousal support modification purposes. In addition, the judge concluded that defendant's support obligation would terminate upon his attaining the age of seventy, but that defendant's voluntary decision to liquidate his real estate holdings would not constitute a basis to decrease support payments for a period of three years and that the income or profits from the Riviera Hotel would not impact spousal support. Finally, the judge provided that defendant would pay $30,000 towards plaintiff's counsel fees and $20,000 to plaintiff's accounting expert, which was in addition to the $100,000 previously paid by defendant. The parties, both claiming judicial error, appealed from the judgment.

Defendant argues the trial court erred by (1) failing to determine that the income generated by the equitably distributed assets sufficiently covered plaintiff's support needs, (2) denying defendant's application to discover plaintiff's support needs, (3) failing to credit defendant for the income plaintiff could have generated from selling the marital home and moving into more reasonable accommodations, and (4) denying modification of the alimony award in the event defendant chose to liquidate his real estate holdings.

Plaintiff argues the trial court erred by (1) refusing to incorporate a specific savings increment into the alimony calculation, (2) awarding permanent alimony for a limited term, (3) determining that defendant's attainment of the age of sixty-two qualified as a changed circumstance for alimony modification, (4) determining the amount of plaintiff's professional fees for which defendant was responsible, (5) denying plaintiffs R. 4:50-1 motion, (6) failing to instruct defendant to file a complete case information statement and provide other necessary discovery, (7) imputing plaintiff's annual projected income as $35,000, and (8) mischaracterizing the language of a prior consent order in the final judgment of divorce, thereby requiring plaintiff to share in any future partition action costs for the Riviera Hotel.

As an appellate court we will not reverse a trial court's "'factual findings and legal conclusions . . . unless we are 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.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagiarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Furthermore, we must respect and defer to the Family Part's "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

All of Judge Zampino's fact findings are well supported by the record and we have no cause to question any of them. Had we heard the testimony, we might not have decided the issues precisely as did Judge Zampino, however, the judge's application of the law to the facts he found, together with his trial management decisions, are well within the zone of reasonably exercised discretionary judgment and we discern no clear legal errors, despite the vigorous arguments raised by both parties. Consequently, we affirm substantially for the reasons set forth in the judge's April 7, 2004 and April 8, 2004 letter opinions.

We agree that, normally, a changed circumstance must be dealt with at the time it occurs and here both of the judge's decisions regarding termination of permanent alimony on defendant's seventieth birthday and the consequences of defendant's retirement could be considered premature. However, it was reasonable for the trial court to determine that plaintiff would be able to support herself in thirteen years, as substantial credible evidence indicated that she would have enough assets to generate sufficient income to support her lifestyle.

In support of her appeal, plaintiff relies upon Boardman v. Boardman, 314 N.J. Super. 340 (App. Div. 1998), however, Boardman is distinguishable because, in that case, termination was automatic upon retirement and there was insufficient credible evidence to support a showing that the payee spouse could support herself. Id. at 345-46. In this case, plaintiff received equitable distribution valued at $3,650,000. Additionally, the parties in Boardman were in their mid-forties when they divorced and there was no restriction on when the payor spouse could retire. Id. at 343. In contrast, here, termination is automatic after a considerable period of time, and sufficient credible evidence demonstrates that after that time plaintiff should be able to support herself in the lifestyle to which she had become accustomed during the marriage. We point out that should circumstances beyond plaintiff's control render the judge's assessment substantially incorrect, it remains possible for plaintiff to claim changed circumstances and move for continuation of alimony.

Furthermore, should defendant retire, the judge's decision simply presumes that a changed circumstance has occurred and does not, of course, automatically warrant a reduction or increase in the support amount. First, defendant must establish that he has in fact retired; and the trial court has left for another day to define the precise meaning of retirement for someone in defendant's business. Assuming defendant can establish that he has retired, the consequence of the presumed changed circumstance must await proofs by the parties of their actual economic and social situations.

After considering each of the arguments articulated in the appeal and cross-appeal, we interpret the parties' various assertions of error as advancing a bottom-line argument that the judge could have more "equitably" adjusted the economic balance between the parties. It is apparent to us that the judge was not completely pleased with both parties and sometimes appeared intemperate. He criticized plaintiff's budget as "greatly exaggerated" and noted that defendant had "established little credibility in his projections and the method of disclosing money in the management company." Plaintiff's notice of motion under R. 4:50-1 on short notice, claiming perjury, obviously distressed the judge as did defendant's litigation decision not to offer any alimony whatsoever to his wife. Our review of the record, however, convinces us that the judge has achieved essential fairness in the divorce judgment and counsel fee award. We agree with the judge's assessment that after four and one-half years of litigation "enough is enough," and we decline at this time to intervene in any fashion.

Affirmed.

 

(continued)

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9

A-6549-03T1

February 16, 2006