VICTORIA L. SUCHENSKI v. RICHARD C. SUCHENSKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6514-05T36514-05T3

VICTORIA L. SUCHENSKI,

Plaintiff-Respondent/Cross-Appellant,

v.

RICHARD C. SUCHENSKI,

Defendant-Appellant/Cross-Respondent.

___________________________________

 

Argued November 5, 2007 - Decided

Before Judges Weissbard and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-393-05.

Dale E. Console argued the cause for appellant/cross-respondent.

Nicole J. Huckerby argued the cause for respondent/cross-appellant (Pellettieri, Rabstein & Altman, attorneys; John A. Hartmann, III, of counsel; Ms. Huckerby, on the brief).

PER CURIAM

Defendant Richard C. Suchenski appeals from the final judgment of divorce entered in the Family Part on July 12, 2006, after a contested trial. Plaintiff Victoria L. Suchenski cross-appeals. We affirm.

I.

The parties were married on August 2, 1980. Four children were born of the marriage, ages 23, 21, 19 and 15 at time of trial. On October 20, 2004, plaintiff filed a complaint for divorce. Following seventeen months of motion practice, a ten-day trial commenced on March 8, 2006, and concluded May 4, 2006, during which the parties presented evidence addressing the issues of: permanent alimony; rehabilitative alimony; child custody; child support, including future college expenses of the unemancipated children; attorney fees; and equitable distribution of marital assets, including the parties' respective interests in Giselle Dancewear, LLC, a small retail business operated by plaintiff in Princeton, and in Clearview Zeigler Acquisition Co., LLC, defendant's former employer, having an office in Old Greenwich, Connecticut.

On June 19, 2006, Judge Ostrer issued a ninety-three-page written opinion. Among other matters, the judge: 1) awarded plaintiff permanent alimony of $9,600 per month, commencing July 1, 2006; 2) awarded plaintiff rehabilitative alimony for a period of one year ending June 30, 2007, in the amount of $770 per month; 3) directed defendant to pay child support for the youngest child in the amount of "$463 a week until July 1, 2007, and $474 thereafter, consistent with the guidelines, and accounting for the difference in alimony after the expiration of the period of rehabilitative alimony"; 4) equitably distributed the marital assets, including the parties' interests in Giselle and Clearview by awarding plaintiff sole and exclusive interest in Giselle and awarding defendant his 1.5% membership in Clearview; and 5) awarded plaintiff $24,820 in attorney fees and costs.

On July 10, 2006, the judge issued a supplemental opinion resolving several issues that arose from the parties' attempted settlement of the final order. On July 12, 2006, the trial judge entered a confirming final judgment of divorce.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED IN AWARDING ALIMONY THAT EXCEEDED THE REALISTIC STANDARD OF LIVING IN THE MARRIAGE, THAT WAS BASED UPON DEFENDANT'S CURRENT INCOME INCLUSIVE OF BONUS WHEN THERE WAS NO BONUS HISTORY AND IN FAILING TO CONSIDER THE IMPACT OF BOTH ALIMONY AND EQU[I]TABLE DISTRIBUTION DEFENDANT'S ABILITY TO MAINTAIN A SIMILAR STANDARD OF LIVING IN THE FUTURE.

A. PLAINTIFF IS NOT ENTITLED TO A BETTER LIFESTYLE THAN THE PARTIES ENJOYED DURING THE MARRIAGE SIMPLY BECAUSE DEFENDANT MAY HAVE INCREASED EARNINGS IN FUTURE.

B. DEFENDANT'S ABILITY TO PAY AND THE AMOUNT OF ALIMONY SHOULD NOT HAVE BEEN BASED UPON COMPLETE SPECULATION AS TO FUTURE EARNINGS.

C. THE TRIAL COURT ERRED IN FAILING TO ASSESS PLAINTIFF'S ABILITY TO GENERATE INCOME FROM GISELLE.

D. THE TRIAL COURT FAILED TO TAKE INTO CONSIDERATION THE COMBINED IMPACT OF THE SUPPORT AWARDED AND EQUITABLE DISTRIBUTION ON DEFENDANT'S LIFESTYLE AND ABILITY TO [] ACQUIRE ASSETS IN FUTURE.

POINT II.

THE TRIAL COURT ERRED IN AWARDING PLAINTIFF $25,000 FOR CLEARVIEW WHILE LEAV[]ING DEFENDANT WITH THE FULL DEBT FOR THIS 'ASSET.'

POINT III.

THE TRIAL COURT ERRED IN AWARDING COUNSEL FEES TO PLAINTIFF WHERE DEFENDANT HAS AN EQUAL DEBT AND NO GREATER ABILITY TO PAY.

On cross-appeal, plaintiff argues:

POINT I.

THE TRIAL COURT ERRED BY FIXING THE PARTIES' RESPECTIVE CONTRIBUTIONS TO COLLEGE EXPENSES BASED UPON CURRENT INCOME RATHER THAN ACTUAL INCOME INTO THE FUTURE.

POINT II.

THE TRIAL COURT ERRED IN AWARDING PLAINTIFF INSUFFICIENT ALIMONY DURING THE PERIOD UNTIL THE MARITAL HOME IS SOLD.

II.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. 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).

We have considered the arguments of plaintiff and defendant in light of the record, and are not persuaded by any of them. We affirm substantially for the reasons expressed by Judge Ostrer in his cogent, written opinion of June 19, 2006, as supplemented by his opinion of July 10, 2006. R. 2:11-3(e)(1)(A). The judge's findings are supported by adequate, substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Nevertheless, we add the following comments.

In Point I, defendant argues that the trial judge erred in calculating his future alimony obligation by including as part of his annual income the $55,625 bonus he had received from his employer, The Republic of Tea, for services rendered during the calendar year 2005. Defendant contends that the "better approach would have been to have fixed the alimony based upon [d]efendant's base salary with [p]laintiff receiving a percentage of the bonus, up to a maximum, assuming that she did not get a standard of living reasonably comparable to the marriage on the base salary alone . . . ." Defendant asserts that the judge did not adopt the more flexible method because he erroneously interpreted the alimony statute to mean "that he was obligated to fix a number and had no ability to do anything else." Defendant argues that using the more rigid method "virtually dooms the parties to annual litigation over the amount of the bonus and fairness of the existing order."

The primary purpose of alimony is to provide the dependent spouse with sufficient support to continue the parties' standard of living that existed prior to separation. Boardman v. Boardman, 314 N.J. Super. 340, 344 (App. Div. 1998); Wass v. Wass, 311 N.J. Super. 624, 629 (Ch. Div. 1998). The authority to award alimony is statutory in nature. N.J.S.A. 2A:34-23. Under the statute, the Legislature has established thirteen factors that a trial judge "shall consider, but not be limited to" in deciding whether to award permanent alimony and its amount. N.J.S.A. 2A:34-23b. The factors include:

(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 and custodial responsibilities for children 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.

Because the trial judge is the best arbiter of the facts of a case, "substantial weight must be given to the judge's observations of the parties' demeanor, comprehension and speech and to the fact that the trial judge had the distinct advantage of observing demeanor of the witnesses and a better opportunity to judge their credibility . . . ." Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996). Therefore, a trial court's alimony findings may only be vacated if this court concludes that the trial court "clearly abused its discretion, failed to consider all of the controlling legal principles, or . . . that the determination could not reasonably have been reached on sufficient[,] credible evidence present in the record." Ibid. This court may not interfere with a trial court's fact findings unless those findings would work an injustice. Rova Farms Resort, supra, 65 N.J. at 483-84. Consequently, "the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Id. at 484.

For most of the marriage, defendant served as the family's sole breadwinner. Between 1995 and 2001, defendant was employed by Frito Lay, a subdivision of PepsiCo, Inc., in Philadelphia. Defendant left Frito Lay and assumed a position in 2001 with Zeigler Beverage Company, in Basking Ridge. Defendant was terminated from employment by Zeigler in January 2005, and remained unemployed through the beginning of June of that year when he began employment with The Republic of Tea, a privately-owned company in Illinois, as the company's President and Chief Operating Officer.

Defendant's present employment agreement reflects a base salary of $250,000 annually and a bonus incentive of 50% of his base salary at the discretion of the company's owner. Defendant also receives four weeks of vacation or twenty days per year and a car allowance of $700 per month. In January, 2006, defendant received a bonus of $55,625 for services rendered by him during his seven months of employment with The Republic of Tea in 2005. At the time of trial, it was unknown whether defendant would receive a bonus for 2006, and if so, the amount thereof.

Here, the trial judge examined each of the factors contained in N.J.S.A. 2A:34-23b in determining defendant's alimony obligation. In doing so, the trial judge set defendant's permanent alimony obligation at a fixed amount of $9,600 a month. In calculating defendant's annual income for the purpose of the alimony award, the judge included defendant's 2005 bonus:

The court rejects plaintiff's argument that the court should average Mr. Suchenski's gross earnings over the last five years, and base its equitable distribution, alimony, and child support determinations on an income of $358,116 a year.

Under his employment agreement with Republic of Tea, Mr. Suchenski is entitled to $250,000 a year, plus a potential annual bonus equal to up to fifty percent of annual pay, over $125,000. Mr. Suchenski received a bonus of $55,625 in calendar [year] 2006 for his performance in 2005. He was employed by Republic of Tea for seven months (employment agreement reflected June 3, 2005 start). Thus, his bonus came to $7,946 a month ($55,625 divided by 7). Extrapolated for a full year, Mr. Suchenski's bonus for 2005 is equivalent to $95,357 (12 times $7,946). That is equivalent to thirty-eight percent of base pay.

Mr. Suchenski was unable to project whether he would receive a comparable bonus for 2006 as his superior had not yet set performance targets for 2006 . . . Mr. Suchenski has failed to persuade the court that he will receive no bonus in the future. On the other hand, it would be sheer speculation to presume that his bonus for 2006 will be equivalent, as a percentage of income, to the bonus for seven months of 2005.

Absent proof that the bonuses will not reoccur, the court is obliged to calculate Mr. Suchenski's income based on what he has earned . . . .

In this case, calculating Mr. Suchenski's income is complicated by several factors, not addressed by the guideline. To average Mr. Suchenski's income over the time period "from the first occurrence" would drastically overstate his income. He received the bonus in February 2006. Trial ended in May 2006. Although he has received $55,625 in bonuses over that three[-]month period, he cannot receive quadruple that over a twelve[-]month period or on [an] annual basis.

On the other hand, inasmuch as the bonus was for a part-year, it arguably should be extrapolated over a full year, yielding an annual anticipated bonus of $95,357. However, that approach, too, seems inequitable . . . . [However] [i]f $55,625 is spread across the twelve months following its receipt, [defendant] will have an extra $4,635 of gross income per month. That appears to be fair and equitable result.

[internal citations and cites to exhibits omitted.]

We agree that a trial judge, calculating a supporting spouse's alimony obligation, may determine the amount of alimony based on the supporting spouse's base salary, coupled with the dependent spouse receiving a percentage of any future bonuses. The use of this flexible method would probably reduce future motion practice based on changed circumstances concerning the amount of the supporting spouse's future bonuses. However, we do not conclude that the trial judge's method in determining defendant's alimony obligation was error as a matter of law.

A trial judge is vested with discretion in computing a supporting party's alimony obligation provided that the judge acts within the statutory framework of N.J.S.A. 2A:34-23b. Here, the judge used defendant's actual earned income in 2005 to determine his future alimony obligation, noting that if defendant does not receive any bonus in future years, or receives a bonus below the amount he received for the year 2005, defendant could move to reduce his alimony obligation based on changed circumstances. "Orders pertaining to alimony or other supports 'may be revised and offered by the court from time to time as circumstances may require . . . .'" Gibbons v. Gibbons, 86 N.J. 515, 525 (1981) (quoting N.J.S.A. 2A:34-23). Alimony obligations are subject to review and modifications based on a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980).

Although defendant acknowledges his right to move for modification in the future should he not receive the amount of bonus anticipated by the court, defendant requests that we reverse or modify the amount of his child support obligation, arguing that the flexible method is more preferable than the rigid method used by the court. We decline because either method is permissible and within the discretion of the trial court. The mere dissatisfaction with a decision does not serve as a basis for an appeal. Rather, "[a] sharp departure from reasonableness must be demonstrated before intersession can be expected." Perkins v. Perkins, 159 N.J. Super. 243, 248 (App. Div. 1978).

In Point II, defendant argues that the judge erred in awarding him, as part of the equitable distribution of the marital assets, his 1.5% interest in Clearview, subject to the $100,000 indebtedness owed to Clearview, while directing that he pay $25,000 to plaintiff, representing one-half of the down payment paid on the investment from marital funds. Defendant contends that Clearview is a $150,000 asset, which is encumbered by $100,000 of debt, and "[i]f the court equally distributes this asset, then each party has a $25,000 investment and owes $50,000." Alternatively, defendant asserts that "[i]f the [c]ourt chooses to distribute this asset to one party, that party [should] get[] the initial investment and is responsible for all of the outstanding liabilities." Defendant further argues that "[i]t is simply unfair to say that one party gets reimbursed for one-half of the original investment while the other gets to pay off all of the debt." Under the facts herein, we disagree.

In awarding defendant sole and exclusive interest in the 1.5% membership in Clearview, the court stated:

Mr. Suchenski shall retain his 1.5 percent membership interest in Clearview. Neither party presented evidence of the value of the asset. That interest is encumbered by the $100,000 note. Thus, using the purchase price as a value, the parties have $50,000 of equity in their membership in Clearview. He used $50,000 of marital funds to purchase the interest. Ms. Suchenski shall therefore receive $25,000[] to offset her interest in Clearview. Mr. Suchenski shall pay her the $25,000 out of his proceeds of the house sale, at closing. Mr. Suchenski shall thereafter be solely liable on the $100,000 note, and have sole ownership of the 1.5 percent interest in Clearview.

The court finds that, given his business experience acumen, Mr. Suchenski is better able to monitor this investment, and maximize its value. He is also in the position to negotiate a global settlement of his dispute with Clearview and Zeigler.

This disposition avoids further entanglement of the parties. Placing the interest in a constructive trust could, effectively, deprive Ms. Suchenski of any value. Her greater need, at this point, is acquisition of cash to establish a new household and a new life. The $25,000 award addresses that need.

As for Mr. Suchenski's claim for severance pay, Mr. Suchenski shall retain sole ownership of that claim. To grant Ms. Suchenski any interest in that claim would unavoidably entangle the parties into the future over issues involving decisions to commence or manage or settle litigation related to it. Moreover, as Mr. Suchenski may ultimately settle his claim for severance pay in concert with a settlement of Clearview's claim on the note, and perhaps his resale of his 1.5 percent interest, it would be exceedingly difficult to segregate the recovery on the severance pay claim.

The value of Mr. Suchenski's claim is difficult to determine. It is surely worth less than $244,000 inasmuch as legal fees would have to be spent to recover it, and there is no fee shifting provision in his employment agreement. Indeed, the claim may ultimately prove to have a negative value. Inasmuch as he has been unable to interest an attorney to prosecute his claim on a contingency fee basis, he might have to pay an attorney a fee, and then ultimately obtain no relief, resulting in a net loss.

The $244,000 receivable is roughly equivalent to the $275,000 receivable that the parties hold against Giselle. Just as Mr. Suchenski's interest in the $275,000 receivable shall be distributed to []his wife, Mrs. Suchenski's interest in the $244,000 receivable shall be distributed to her husband. Therefore, the court finds it equitable for Mr. Suchenski to retain this claim.

"The goal of equitable distribution . . . is to effect a fair and just division of marital assets." Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005). In distributing marital property, the court undertakes a three step process. Sculler v. Sculler, 348 N.J. Super. 374, 380 (Ch. Div. 2001). First, the court determines what property of each spouse is eligible for distribution. Ibid. Second, each property is valued. Ibid. Finally, the court "must decide how such allocation can most equitably be made." Ibid. (quoting Rothman v. Rothman, 65 N.J. 219, 232 (1974)). As a part of the third step, the court must apply the statutory factors set forth in N.J.S.A. 2A:34-23.1. Ibid. No one statutory factor is superior to the others. Ibid. The list of statutory factors is not exclusive, and the court may consider "any other factor," which it deems relevant. N.J.S.A. 2A:34-23.1p. The end result need only reflect that "the trial judge . . . appl[ied] all the factors set forth in N.J.S.A. 2A:34-23.1[,] and distribute[d] the marital assets consistent with the unique needs of the parties." DeVane v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995).

We would be inclined to agree with defendant's argument if Clearview was the only asset subject to distribution; however, it was not. Clearview was one of many assets that were subject to equitable distribution. The judge considered all factors contained in N.J.S.A. 2A:34-23.1 and effected fair and just division of the marital assets. We discern no reason to intervene.

Lastly, defendant argues that the trial judge erred in awarding plaintiff counsel fees. Defendant contends that as a result of the support he is obligated to pay under the court's decision, "he actually has less available income than [p]laintiff[,] and he has no assets from which to pay counsel fees on behalf of [p]laintiff." Because defendant did not raise that issue in either his Notice of Appeal or the Civil Case Information Statement attached, we deem the issue abandoned. See R. 2:5-1(f)3.A (providing in part that the Notice of Appeal shall set forth "the judgment, decision, action or rule, or part thereof appealed from"); see also Pressler, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2008) ("[A] party filing a notice of appeal has the obligation to raise therein all challenges to the orders and judgments entered in the proceedings.").

 
Affirmed.

(continued)

(continued)

17

A-6514-05T3

January 15, 2008