TERESA VALENTE v. RALPH VALENTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1593-06T11593-06T1

TERESA VALENTE,

Plaintiff-Respondent,

v.

RALPH VALENTE,

Defendant-Appellant.

_____________________________

 

Argued March 10, 2008 - Decided

Before Judges A.A. Rodr guez, Collester

and C.S. Fisher.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Morris County, FM-14-1471-04.

Pamela M. Cerruti argued the cause for

appellant.

Theresa A. Lyons argued the cause for

respondent (Heer & Lyons, attorneys;

Kimberly T. Forrest, of counsel and on

the brief).

PER CURIAM

Defendant Ralph Valente appeals from portions of the amended final judgment of divorce awarding plaintiff Teresa Valente permanent alimony, child support, and counsel fees. We reverse the award of permanent alimony and remand for determination of a proper term of limited duration alimony.

The parties were married on September 18, 1992. Three children were born of the marriage: a son, born March 23, 1993, and twins, born April 10, 1996. Plaintiff filed her complaint for divorce on June 2, 2004, eleven years and nine months after the date of their marriage. At that time plaintiff was forty years old and defendant forty-two.

Prior to trial, the parties entered into an agreement regarding equitable distribution issues including defendant's insurance business and the marital home, which was awarded to plaintiff without a mortgage. The issues at trial were the division of certain bank accounts and personalty, alimony, child support, parenting time, and counsel fees. Following a ten-day bench trial, the trial judge issued a written opinion awarding plaintiff permanent alimony of $10,000 per month, child support of $700 per week (to be reduced to $625 when defendant had overnight parenting), and a counsel fee of $60,000 with credit to defendant for $25,000 for earlier counsel fee awards paid.

We first deal with a procedural issue. Plaintiff argues that the defendant's appeal must be dismissed for failure to comply with the requirement of Rule 2:4-1(a) that appeals from final judgments shall be taken within forty-five days of entry. The record shows that on June 20, 2006, the same date as his written opinion, the trial judge signed an order prepared by the court simply dissolving the marriage without setting forth the court's rulings on the economic issues. An amended judgment was subsequently signed by the judge on October 19, 2006, setting forth the findings and conclusions contained in his written opinion. Defendant's notice of appeal was filed on November 17, 2006. We denied an earlier motion by plaintiff to dismiss the appeal on August 7, 2007. We adhere to our prior order and hold that defendant's appeal was filed within the time prescribed by Rule 2:4-1(a).

We next address the major issue on appeal, which is the award of permanent alimony. In reviewing a judgment of the Family Part, we accord special deference to the trial court's fact-finding because of the judge's expertise in the field of domestic relations. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Moreover, we will not disturb an alimony award absent a clear abuse of discretion, failure to consider controlling legal principles, or findings made that were unsupported by substantial credible evidence in the record as a whole. Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000); Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998); Heinl v. Heinl, 287 N.J. Super. 337, 339 (App. Div. 1996). The goal of an alimony award 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). In making such an award, the trial judge must consider and make specific findings as to the pertinent statutory factors in N.J.S.A. 2A:34-23(b). Id. at 25.

N.J.S.A. 2A:35-23(b) provides for four types of alimony: rehabilitative, reimbursement, limited duration, and permanent. Rehabilitative alimony is designed to enable the supported spouse to "complete the preparation necessary for economic self-sufficiency," Hill v. Hill, 91 N.J. 506, 509 (1982). Payments cease once the dependent spouse has attained the ability to support oneself. Hughes v. Hughes, 301 N.J. Super. 15, 31 (App. Div. 1998). Rehabilitative alimony may be awarded when "the marriage is relatively short and the recipient spouse is capable of full employment based on experience, additional training or further education." Heinl, supra, 287 N.J. Super. at 348; Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992). Reimbursement alimony is appropriate when one spouse supported the other through an advanced education, "anticipating participation in the fruits of the earning capacity generated by that education." N.J.S.A. 2A:34-23(e). Such an award is restricted to repaying the financial benefits provided by the supported spouse in the expectation that the couple would enjoy an enhanced standard of living. Mahoney v. Mahoney, 91 N.J. 488, 502-03 (1982). Like rehabilitative alimony, reimbursement alimony is discontinued once its purpose is accomplished. Cox, supra, 335 N.J. Super. at 479.

The issue in the instant case is whether the alimony award to plaintiff should be of limited duration or permanent. Limited duration alimony, like permanent alimony, reflects "the important policy of recognizing that marriage is an adaptive economic and social partnership, and an award of either validates that principle." Ibid. Limited duration alimony gives recognition to a dependent spouse's contributions and sacrifice to a marriage of relatively short-term duration where he or she possesses the ability to return to the workforce and achieve a "reasonably comparable lifestyle." Crews, supra, 164 N.J. at 16. In this regard age, education and work experience are important factors for consideration. See Heinl, supra, 287 N.J. Super. at 346.

Limited duration alimony is intended to cover cases in which either a denial of alimony or an award of permanent alimony would constitute an injustice. Cox, supra, 335 N.J. Super. at 480. See also Frank Louis, Limited Duration Alimony, 11 Fam. Law 133, 137 (1991). But, it would also be an injustice if limited duration alimony was misused in circumstances where it cannot reasonably be found that a supported spouse was capable of assuming his or her proper standard of living at the end of the temporary alimony award. See Cox, supra, 335 N.J. Super. at 482.

The statute specifies the procedure to be followed by a trial judge in determining the form of alimony to be awarded:

In any case where there is a request for an award of permanent alimony, the court shall consider and make specific findings on the evidence about the [factors delineated by N.J.S.A. 2A:34-23(b), supra,]. If the court determines that an award of permanent alimony is not warranted the court shall make specific findings on the evidence setting forth the reasons therefor. The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement. In so doing, the court shall consider and make specific findings on the evidence about factors set forth above [in N.J.S.A. 2A:34-23(b)]. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded.

[N.J.S.A. 2A:34-23(c).]

Permanent alimony is reserved for marriages of long duration where economic need is demonstrated. Gordon v. Rozenwald, 380 N.J. Super. 55, 66 (App. Div. 2005); Cox, supra, 335 N.J. Super. at 483. Length of the marriage is the hallmark of a permanent alimony award. As we stated in Cox:

In determining whether to award limited duration alimony, a trial judge must consider the same statutory factors considered in any applications for permanent alimony, tempered only by the limited duration of the marriage. All other statutory factors being in equipoise, the duration of the marriage marks the defining definition between whether permanent or limited duration alimony is warranted and awarded.

[Cox, supra, 335 N.J. Super. at 483.]

Therefore, in deciding whether an alimony award should be permanent or of limited duration, the trial judge must consider the length of the marriage in context with the other statutory factors including the recipient spouse as principal caregiver of children, the health of the parties, prolonged economic dependence, income disparity, education and work experience of the recipient spouse. See, e.g., Gordon, supra, 380 N.J. Super. at 66; Cox, 335 N.J. Super. at 483.

The marriage in this case was traditional in that defendant was the sole income earner while plaintiff was the homemaker and caretaker of the three children. Defendant was a successful businessman who owned fifty percent of an insurance agency. He earned an average of $323,000 over three years prior to the filing of the complaint and was the recipient of business perquisites enjoyed by the family including membership in a country club and a tennis club. Defendant's success in his business permitted the parties to live a high-end and enviable marital lifestyle.

Plaintiff has a high school degree and worked in the clothing industry after high school until just before the birth of her first child, earning about $24,000 per year. Since that time, her role has been exclusively that of a wife and mother. While the trial judge opined that the plaintiff's earnings on return to the workforce could well be outweighed by the cost of child care, the fact is that the children are all of school age, lessening the burden of child care. Moreover, plaintiff is in good health and perfectly capable of working to help support herself and the family unit.

In our view, alimony of limited duration is appropriate in this case. The marriage of eleven years and nine months was of intermediate length. Considering plaintiff's age and intelligence as well as the fact that her children are both of school age, we see no reason why she cannot obtain employment within a reasonable time, and an award of limited duration alimony will give her incentive to do so. Moreover, at the end of a limited alimony term, plaintiff may seek permanent alimony or an extension of limited alimony if her earnings are insufficient to maintain her lifestyle without alimony.

Defendant next argues that in awarding child support the trial judge failed to consider tax consequences to defendant for payment of medical insurance, unreimbursed medical expenses, and his child care expenses in fixing the award. He also asserts that the judge did not apply the factors listed in N.J.S.A. 2A:34-23(a) in determining the amount of child support above the child support guidelines. After review of the court's decision, we find that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).

 
Finally we hold that counsel fees are to be considered following the plenary hearing we have ordered.

Reversed and remanded.

Defendant does not appeal the amount but only the permanency of the award.

The court must consider the following: (1) actual need and ability of the parties to pay; (2) duration of the marriage; (3) age, physical and emotional health of the parties; (4) standard of living established during the marriage and likelihood that each party can maintain a reasonably comparable standard of living; (5) earning capacities, educational levels, vocational skills, and employability of the parties; (6) lengths of absence from job market of party seeking maintenance; (7) parental responsibilities; (8) time and expense necessary to acquire sufficient education or training to enable parties seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisition of capital assets and income; (9) history of 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) 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) income available to either party through investment of any assets held by that party; (12) 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 factor that the court deems relevant. N.J.S.A. 2A:34-23(b).

Some states have attempted to achieve uniformity in alimony awards through guidelines either statutory or rule-of-thumb for alimony awards based on length of the marriage. For example, Maine has a presumption statute providing that a marriage of less than ten years limits a spouse to rehabilitative alimony. In contrast, Florida's rule-of-thumb timeline provides that a marriage of less than six years is considered short-term with rehabilitative rather than permanent alimony generally awarded; the period of sixteen years is considered a grey area with no presumption; and a marriage of more than sixteen years is considered long-term with a presumption of permanent alimony. All states employing guidelines for alimony require consideration of the duration of the marriage. See generally, Virginia R. Dugan and Jon A. Feder, Alimony Guidelines: Do They Work?, 25 Fam. Adv. 20 (2003); see also 24 Am.Jur 2d Divorce and Separation, 785.

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A-1593-06T1

January 27, 2009