EILEEN WILSON v. MARK WILSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6073-07T36073-07T3

EILEEN WILSON,

Plaintiff-Respondent,

v.

MARK WILSON,

Defendant-Appellant.

_____________________________________________________________

 

Submitted July 15, 2009 - Decided

Before Judges R.B. Coleman and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth

County, Docket No. FM-13-1617-06A.

Maurice J. Maloney, attorney for appellant.

Respondent Eileen Wilson has not filed a brief.

PER CURIAM

Defendant Mark Wilson appeals from a dual judgment of divorce dated July 3, 2008. On appeal, defendant contends his alimony obligation is excessive, and the trial court erred when it failed to consider plaintiff's inheritance funds as joint marital property, failed to require plaintiff to account for approximately $13,000 in allegedly missing funds, and required defendant to pay counsel fees. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm substantially for the reasons stated by Judge English in his comprehensive twenty-page written decision on July 3, 2008.

The parties were married on October 18, 1980, in Queens, New York, and moved to Freehold Township, New Jersey, soon thereafter. The marriage lasted more than twenty-five years until plaintiff filed for divorce on April 28, 2006. During the marriage, the parties acquired various assets, including a marital home in Freehold, retirement and annuity accounts, and bank accounts.

Throughout the marriage, defendant was the primary wage earner as an elevator installer and repairman. Plaintiff stayed at home to care for the child born of the marriage, who is now emancipated. After the child entered school, plaintiff worked in the school cafeteria as a cashier and obtained a real estate license, which generated additional commission income.

In April 1999, plaintiff received an inheritance of approximately $100,000 from her aunt that she deposited into the joint bank account used to pay marital bills. Approximately two months later, in June 1999, plaintiff transferred $50,000 of the inheritance into her personal account. Plaintiff also inherited approximately $100,000 from her mother that she kept in a segregated account.

In January 2006, plaintiff informed defendant she was unhappy and was looking to purchase a home in South Carolina. Plaintiff testified she purchased a home in February 2006 with inherited funds and relocated to South Carolina prior to trial.

Initially, defendant challenges his alimony obligation in the amount of $1500 per month. He contends plaintiff is voluntarily underemployed and that he earns substantially less than the $88,000 in annual income the court used to compute alimony. Judge English correctly observed that the "purpose of alimony is to provide the depend[e]nt former spouse with sufficient funds to maintain the marital standard of living, provided that the other spouse has the financial ability to maintain such ends." See Innes v. Innes, 117 N.J. 496, 503 (1990); Lepis v. Lepis, 83 N.J. 139, 152 (1980).

The factors the court must consider in determining an award of alimony are codified in N.J.S.A. 2A:34-23(b) as follows:

(1) The actual need and ability of the

parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union 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 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 or civil union 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.

The trial court analyzed each of these statutory factors before determining defendant's alimony obligation. In assessing plaintiff's need for alimony after her relocation to South Carolina, the court utilized plaintiff's budget from her most recent case information statement and her reported income from her new job. The court observed that plaintiff obtained employment as a part-time cashier in South Carolina, earning $8 per hour, and that equal sums of $175,000 were being held in the trust accounts of the attorneys for the parties from the sale of the marital home.

Although plaintiff's cost of living had been reduced by her relocation to South Carolina, the court found she still demonstrated economic need to maintain the marital standard of living. There was no evidence that plaintiff had obtained a real estate license in South Carolina, and the court took judicial notice of the "slumping real estate market on the east coast." With respect to defendant's income, the court observed that while he "periodically experienced periods of unemployment with his job," defendant was a skilled elevator mechanic "who had been employed in that profession for thirty-four (34) years."

Despite defendant's pendente lite alimony obligation of $600 per week, the court determined the sale of the marital home in November 2007 was a "substantial change in circumstances" that justified a reduction in alimony from $2580 per month (4.3 weeks x $600) to $1500 per month. See Schiff v. Schiff, 116 N.J. Super. 546, 563 (App. Div. 1971), certif. denied, 60 N.J. 139 (1972) ("The party who seeks modification of an order for alimony or support has the burden of establishing that changed circumstances call for the relief."); Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995) ("Pendente lite support orders are subject to modification prior to entry of final judgment and at the time of entry of final judgment.") (citations omitted). Based on the trial court's findings and conclusions, which are fully supported by the record, we find no basis to disturb the alimony determination.

Defendant also challenges the court's decision regarding the inheritance that plaintiff received from her aunt in the amount of $100,000. Applying Dotsko v. Dotsko, 244 N.J. Super. 668 (App. Div. 1990), the court found plaintiff established that $50,000 of the inheritance that had been transferred into plaintiff's personal account in June 1999 was immune from equitable distribution. Defendant claims "the testimony taken as a whole" demonstrates the $50,000 plaintiff transferred to her personal bank account should have been subject to equitable distribution. Nevertheless, the record supports the trial court's determination that "[p]laintiff did not intend to make an interspousal gift by merging the funds in the joint account." The court ruled, however, that the $50,000 that remained in the parties' joint bank account was subject to equitable distribution. See Landwehr v. Landwehr, 111 N.J. 491, 504 (1988) ("To the extent that the parties fail to prove that a portion of the award represents their separate property, it shall be classified as a marital asset subject to equitable distribution.").

Defendant also claims the court overlooked evidence that plaintiff withdrew approximately $13,000 from a joint account in June 2006 without properly accounting for the funds. According to defendant, this sum should have been evenly divided between the parties. Defendant relies on plaintiff's admission at trial that she kept residual cash in her home in South Carolina, which was not listed on her case information statement. However, when plaintiff testified she explained how the money was spent, and it is evident that the court accepted plaintiff's testimony, which included the following:

Q. And the purpose for D-2 was to account to Mr. Wilson for the $13,000 that you had withdrawn . . . [W]hen did you take that $13,000 out? If you remember?

A. I believe it was June 2nd.

Q. Of 2006?

A. Yes.

Q. Okay. And when you took the $13,000 out, how much money was left in the account?

A. Approximately $1,300.

. . . .

Q. You took all the money that Mr. Wilson deposited --

A. Yes.

Q. -- is that correct?

A. Yes.

Q. And you [paid] household bills?

A. Yes.

Q. And then . . . if you were short on bills, you took the money out of this $13,000?

A. Exactly. Exactly.

. . . .

Q. [Y]our monthly expenses according to your case information statement, were, approximately $6600 per month, correct?

A. Correct.

Q. So necessarily, every month you had a deficiency?

A. Yes.

Q. Now what monies did you use to bridge that gap?

A. Well, I depleted the $13,000.

Finally, we consider defendant's claim that he should not be required to contribute to plaintiff's counsel fees. As the trial court noted, an award of counsel fees in matrimonial matters is discretionary under Rule 4:42-9(a)(1). The party requesting an award of counsel fees must act in good faith out of financial need, and the court must determine the other party has the financial ability to pay. Williams v. Williams, 59 N.J. 229, 233 (1971); Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998).

In considering whether to award counsel fees in a family action, a court must also evaluate the following factors, pursuant to Rule 5:3-5(c):

(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 reasonableness and good faith of the positions advanced by the parties both during and prior to trial;

(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 court found that defendant had the ability to contribute to plaintiff's counsel fees. In addition, the court noted there were "issues which should have been resolved without the Court's intervention," but "[d]efendant's objective was to simply avoid the inevitable; i.e. paying permanent alimony to his ex-spouse for as long as possible."

Our scope of review is limited. As a general rule, "[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "We 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." Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). Moreover, we accord deference to the trial court's findings where the evidence is largely testimonial and involves questions of credibility. Cesare v. Cesare, 154 N.J. 394, 412 (1998). "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) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Our deference is particularly appropriate when we review findings by Family Part judges, who possess special expertise in family matters. Id. at 413.

In this case, we are satisfied that the trial court's findings and conclusions are supported by sufficient credible evidence and defendant's additional arguments do not warrant further discussion. R. 2:11-3(e)(1)(A) and (E). The court carefully considered the proofs, and in our view, the matter was correctly decided.

Affirmed.

(continued)

(continued)

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A-6073-07T3

December 18, 2009