THOMAS D. JACKSON v. RANDI B. JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4868-07T14868-07T1

THOMAS D. JACKSON,

Plaintiff-Respondent,

v.

RANDI B. JACKSON,

Defendant-Appellant.

 

Submitted October 26, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-392-05C.

Nina Rossi, attorney for appellant.

Szaferman, Lakind, Blumstein & Blader, attorneys for respondent (Brian G. Paul, of counsel and on the brief).

PER CURIAM

Defendant Randi B. Jackson appeals from portions of a judgment of divorce entered February 27, 2008. Specifically, defendant seeks relief from Judge Fleming's award of limited duration alimony, allocation of loans and credit card debt, and counsel fees. We affirm, essentially for the reasons set forth in Judge Fleming's cogent, thorough and comprehensive written opinion.

We make the following brief comments. The parties married January 7, 1995, when plaintiff Thomas D. Jackson was approximately forty-six years old and defendant was thirty-nine. No children were born of the marriage. Defendant suffers from significant mental health disabilities, and has received Social Security disability benefits as a result since 1989. At the time of trial, her monthly benefit was $920. Plaintiff was aware of defendant's mental health conditions prior to the marriage. The marriage was "chaotic," and the parties separated many times over the years.

The parties' marital lifestyle was quite modest in the beginning. This changed commencing in February 2000 when plaintiff began to perform consulting work for a pharmaceutical company where he now works full-time. At the time of trial, he earned an annual salary of $162,553. Except for a brief period early in the marriage, defendant has not worked. She did acquire a second graduate degree during the marriage and engages fully in her hobbies, which include weightlifting and dog training.

Plaintiff testified that the parties borrowed $40,000 from his father as a down-payment on the marital residence. He and defendant paid back $10,000 of that debt in two installments over two years, and although the installments were paid by checks written by plaintiff, the check entries were in defendant's handwriting. Defendant denied any knowledge of the loan, and denied that the parties were expected to repay the money.

When the parties separated in August 2003, defendant remained in the marital residence. Plaintiff voluntarily paid her support, settling upon $1000 weekly by November 2003. In February 2005, plaintiff was ordered to continue to pay defendant that amount pendente lite.

By the time the pendente lite order was entered, defendant had accumulated credit card debt of approximately $8500, despite the fact no credit card debt existed when the parties separated. At trial, defendant testified that she accumulated an additional $30,000 in credit card debt in maintaining and repairing the marital residence, but did not supply the court with any documentation regarding this indebtedness.

After ten days of trial and consideration of the written trial summations provided by counsel, the court entered a dual final judgment of divorce dissolving the marriage. Plaintiff was ordered, among other things, to pay defendant limited duration alimony of $5000 per month for a period of eight years. The court determined that defendant was responsible for fifty percent of the loan made by plaintiff's father, and the court did not require plaintiff to satisfy any portion of defendant's credit card debt. Plaintiff was required, however, to pay approximately $15,000 in counsel fees in addition to the $3500 pendente lite award. The total amount of counsel fees sought by defendant was $52,627.42.

The court found plaintiff to be "honest and sincere in his testimony . . . . completely credible." In contrast, defendant's testimony was described as:

inconsistent. It changed and wavered throughout her testimony. At times, her testimony was poignant and compelling; at other times, confusing and unclear; and at still other times it was hostile and evasive. The Court . . . factored defendant's disability into its weighing process as to credibility, but [defendant] nevertheless was not as credible as plaintiff.

We give a trial judge's credibility determination particular deference because of his or her superior vantage point, the immediate and direct opportunity to evaluate "'the veracity of witnesses.'" Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132-33 (1997) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Our review of this record does not reveal information that would cause us to disturb the judge's conclusions as to the credibility of the parties. Defendant's testimony was indeed inconsistent, contradictory and, at times, illogical. Plaintiff's testimony was logical, consistent and in accord with other evidence.

i.

A judge has broad discretion in awarding alimony. See N.J.S.A. 2A:34-23. This judge appropriately analyzed the statutory factors pursuant to N.J.S.A. 2A:34-23b. His award took into account that:

Limited duration alimony is not intended to facilitate the earning capacity of a dependant spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate.

[Cox v. Cox, 335 N.J. Super. 465, 476 (App. Div. 2000).]

Limited duration alimony is awarded "to a dependent spouse who made 'contributions to a relatively short-term marriage that . . . demonstrated the attributes of a "marital partnership"' and has the skills and education necessary to return to the workforce." Gordon v. Rozenwald, 380 N.J. Super. 55, 65-66 (App. Div. 2005) (quoting Cox, supra, 335 N.J. Super. at 483). "All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded." Ibid.

By today's standards, a ten-year marriage is not considered short-term. Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998). "However, the length of the marriage and the proper amount or duration of alimony do not correlate in any mathematical formula." Lynn v. Lynn, 91 N.J. 510, 518 (1982).

This judge concluded that "in addition to the three years of support that plaintiff has paid pendente lite, limited duration alimony for a period of 8 years is warranted under the facts of this case." He fixed the amount at $5000 monthly after detailed consideration of each of the thirteen factors enumerated in N.J.S.A. 2A:34-23b.

In our view, the length of time plaintiff is required to pay alimony is, if anything, generous to defendant. She suffered from the same psychiatric difficulties at the end of the marriage as she did in the beginning. Defendant actually acquired a graduate degree during the marriage. She was able to excel in her hobbies, winning prizes in body building and dog training competitions. Other than a generalized disagreement with the concept of limited duration alimony in her case, and the complaint that the actual amount is insufficient, defendant does not direct us to a specific error or abuse of discretion committed by the court.

ii.

As to defendant's claim that she should not be responsible for any portion of the loan from plaintiff's father used for a down-payment on the marital residence, our standard of review is "whether the trial judge's findings are supported by adequate credible evidence in the record." Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-444 (App. Div. 1978). See also Rothman v. Rothman, 65 N.J. 219, 233 (1974); Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978). The rationale for this standard of review is that we face the cold record, unlike the trial judge whose findings are based on his "opportunity to hear and see the witnesses and to get a 'feel' for the case that [a] reviewing court cannot enjoy." Twp. of W. Windsor v. Nierenberg, supra, 150 N.J. at 132.

In deciding how the marital estate should be equitably distributed, both the liabilities and assets must be taken into account. Monte v. Monte, 212 N.J. Super. 557, 567 (App. Div. 1986). Marital debts, "which are directly traceable to the acquisition of marital property . . . are subtracted from the total value of the marital property before distribution." Ibid.

In reaching his decision regarding the loan repayment, the judge relied upon the benefit the loan conferred on both parties because they were able to reduce the mortgage on their marital home. Defendant agreed, when the loan was taken, that a reduction in the mortgage for the purchase of the house was reasonable. Despite defendant's denials, the court found that the repayment of $10,000 from the parties' joint checking account, and defendant's handwritten notations about it in the parties' checkbook register, established that she knew the funds were indeed a loan. The court did not find convincing defendant's explanation that she must have been drunk when she entered two $5000 payments a year apart in the checkbook register. This debt incurred in purchasing the marital home was therefore correctly factored in to the equitable distribution calculation. See Monte, supra, 212 N.J. Super. at 567.

iii.

To reiterate, reviewing courts "'do not disturb the factual findings and legal conclusions of the trial judge 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. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).

The trial judge concluded that "[d]efendant has credit card debt in her name, all of it incurred after the parties separated." Accordingly, the judge ordered that "each party shall be responsible for the credit card debt incurred in their own name." The court also stated that defendant "provided no evidence of the debt she claimed existed during trial." Defendant "attached to her trial summation an exhibit listing credit card debt in the amount of approximately $8880," but the court agreed with plaintiff that because the attachment was not introduced at trial it should not be considered. Furthermore, "at the time of the parties' separation, it was undisputed that there was no credit card debt, and that the Court's February 25, 2005 pendente lite order makes each party responsible for their scheduled CIS expenses including credit card debt."

At trial, defendant testified that she incurred $30,000 in credit card debt repairing and maintaining the marital residence. Because plaintiff received fifty percent of the value of the marital residence as equitable distribution, defendant contends, "plaintiff should have been liable for half of the debt incurred to maintain the residence." She acknowledges that "[t]he Trial Court failed to hold plaintiff liable for the debt because it had not been documented by the defendant," but asserts that because she is psychiatrically disabled "[i]t was her counsel's responsibility to provide documentation of the debt." She requests that the issue be remanded in order to allow her "the opportunity to provide documentation of the debt."

Plaintiff counters that defendant "is inappropriately attempting to misuse the appellate process to present evidence that she could have, but failed to, produce during the trial." Plaintiff adds that "[t]o the extent Defendant feels her attorney made trial strategy errors by not presenting available evidence during the trial, then her recourse is to pursue a legal malpractice claim, not to subject [plaintiff] to additional litigation through the guise of a remand."

On February 25, 2005, three years prior to the divorce, defendant's request to have plaintiff pay her credit card debt was denied pendente lite, as it was undisputed that there was no credit card debt at the time of separation and that plaintiff had regularly voluntarily paid a reasonable amount of support. Instead, the court granted plaintiff's motion "to prohibit Plaintiff from incurring any debt for which Defendant would be held responsible." The trial court's finding, therefore, that defendant is solely liable for her credit card debt, is not "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," and should not be disturbed. Rova Farms Resort, Inc., supra, 65 N.J. at 484. Defendant's accumulation of indebtedness in her name was at her peril.

iv.

Defendant also contends that plaintiff should have paid all of her counsel fees. The decision to award counsel fees rests within the discretion of the trial judge. Rule 5:3-5(c). See also Clarke v. Clarke ex rel. Costine, 359 N.J. Super. 562, 572 (App. Div. 2003); Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007). Such fee determinations "will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). See also Berkowitz v. Berkowitz, 55 N.J. 564, 570 (1970). Judge Fleming first closely scrutinized the requested amount and calculated a fair counsel fee to be $35,273, not $52,627.42. The court then turned to consideration of the specific factors in Rule 5:3-5. Our review of the ensuing analysis does not indicate any error.

That defendant claimed to be struggling financially at the time of the divorce is not itself a sufficient basis to set aside the trial judge's counsel fee award. Funds received by way of equitable distribution, plus $5000 per month in alimony, plus $920 in monthly Social Security disability benefits, established defendant's ability to pay counsel fees. We will therefore not disturb the judge's award of counsel fees either. Early on, plaintiff paid $3500 an additional $15,000 appears reasonable. These discretionary determinations are to "be disturbed only on the rarest of occasions, and then only because of the clear abuse of discretion." Packard-Bamberger & Co., supra, 167 N.J. at 444. We see no such abuse of discretion in the limited award of counsel fees.

 
Affirmed.

(continued)

(continued)

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A-4868-07T1

December 9, 2009