CAROL MARINARO v. DAVID MARINARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3241-08T3

CAROL MARINARO,

Plaintiff-Appellant,

v.

DAVID MARINARO,

Defendant-Respondent.

______________________________________________

September 17, 2010

Submitted June 1, 2010 - Decided

Before Judges R. B. Coleman and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-31-08.

Einhorn, Harris, Ascher, Barbarito & Frost, attorneys for appellant (Thomas J. Snyder, of counsel and on the brief).

David Marinaro, respondent pro se.

PER CURIAM

Plaintiff Carol Marinaro appeals from the January 21, 2009 order of the Final Judgment of Divorce which (1) awarded defendant David Marinaro permanent alimony; (2) denied plaintiff's request that defendant David Marinaro contribute to their daughter's college expenses and; (3) denied her request to delay the sale of the marital residence until 2011. We have carefully considered plaintiff's arguments in light of the record and applicable law, and we affirm.1

Plaintiff and defendant were married on November 30, 1985. The marriage produced two children, who were nineteen and sixteen years old when the divorce decree was entered. Plaintiff was employed as a school nurse earning approximately $50,000 per annum. Defendant was self-employed as a landscaper throughout the course of the marriage, earning a varying amount yearly. Defendant ceased his landscaping business due to a back injury which precludes him from continuing manual labor associated with employment in the landscaping field; he took a job as a custodian at Picatinny Arsenal, where the court found he earned $29,348 gross per annum.

The Judgment of Divorce directs plaintiff to pay defendant permanent alimony of $175 per week, and directs defendant to pay plaintiff $191 per week in child support for the two children of the marriage. The difference of $16 per week between child support and alimony was ordered to be paid by defendant through the Sussex County Probation Department. The judgment also compels the sale of the marital residence and directs that the proceeds be divided equally, subject to plaintiff's right to buy defendant's interest in the home.

In this appeal, plaintiff raises the following arguments:

POINT I: THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S REQUEST THAT DEFENDANT CONTRIBUTE TO THE COST OF THEIR DAUGHTER'S COLLEGE EDUCATION EXPENSES.

POINT II: THE TRIAL COURT ERRED IN AWARDING DEFENDANT PERMANENT ALIMONY.

POINT III: THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S REQUEST TO DEFER THE SALE AND/OR BUYOUT OF DEFENDANT'S INTEREST IN THE MARITAL RESIDENCE UNTIL 2011 WHEN THE PARTIES' DAUGHTER [C.M.] GRADUATES HIGH SCHOOL.

Our review of a trial court's fact-finding function is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Id. at 413. Where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Considering these standards, our analysis continues.

I.

First, plaintiff asserts that the trial court erred in denying her request that defendant contribute to the cost of their daughter's college education expenses. We disagree.

In evaluating a claim for higher education contribution, the court should consider the factors enunciated in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). These factors include

(1) whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education; (2) the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education; (3) the amount of the contribution sought by the child for the cost of higher education; (4) the ability of the parent to pay that cost; (5) the relationship of the requested contribution to the kind of school or course of study sought by the child; (6) the financial resources of both parents; (7) the commitment to and aptitude of the child for the requested education; (8) the financial resources of the child, including assets owned individually or held in custodianship or trust; (9) the ability of the child to earn income during the school year or on vacation; (10) the availability of financial aid in the form of college grants and loans; (11) the child's relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and (12) the relationship of the education requested to any prior training and to the overall long-range goals of the child.

[Ibid.]

With regard to plaintiff's request for contribution to the older daughter's college expenses, the lower court concluded that "there must be some level of subsistence before addressing a parent's contribution to the college education of a child." Here, the trial court judge decided that the parties' requisite level of subsistence was unfortunately not enough and that "neither party can afford to contribute to [the older daughter's] college education." Judge Farber further observed that "basic living trumps contribution to college" and found that defendant does not have the economic resources to pay his current expenses, not including his medical costs due to his disability. Therefore, defendant was not ordered to contribute to college expenses.

Considering the relevant factors under Newburgh, we affirm the trial judge's decision. Nevertheless, plaintiff takes the position in her appellate brief that the trial court's sole reliance on defendant's lack of ability to pay fails to take into account the principles set forth in Lynn v. Lynn, 165 N.J. Super. 328 (App. Div. 1979). Lynn indeed affirms the notion that current earnings are not the sole criterion to determine a party's child support responsibility and held that:

This court has every right to appraise realistically defendant's potential earning power . . . In treating the matter of support, our courts have always looked beyond the father's claims of limited resources and economic opportunity. They have gone far to compel a parent to do what in equity and good conscience should be done for his children.

[Lynn, supra, 165 N.J. Super. at 340 (quoting Mowery v. Mowery, 38 N.J. Super. 92 (App. Div. 1955), certif. denied, 20 N.J 307 (1956)).]

Nevertheless, the applicable standard is found in Newburgh, supra, 88 N.J. at 545. Although the trial judge determined that "[t]he overriding factor is the ability of the parent to pay," we are satisfied that the court gave due consideration to the remaining Newburgh factors and that the court's findings could have been reached on sufficient credible evidence in the record. Therefore, plaintiff's argument under Lynn is misplaced.

Further, plaintiff contends that the older daughter's college related expenses are a necessity. We recognize that Newburgh supports the idea that education may be considered a necessity under certain circumstances, however, a judge is not required to order every parent to contribute to college expenses. Newburgh, supra, 88 N.J. at 543-44 (emphasis added).

Generally parents are not under a duty to support children after the age of majority. Nonetheless, in appropriate circumstances, the privilege of parenthood carries with it the duty to assure a necessary education for children. Frequently, the issue of that duty arises in the context of a divorce or separation proceeding where a child, after attaining majority, seeks contribution from a non-custodial parent for the cost of a college education. In those cases, courts have treated "necessary education" as a flexible concept that can vary in different circumstances . . . "[i]n general, financially capable parents should contribute to the higher education of children who are qualified students."

[Newburgh, supra, 88 N.J. at 543-44 (quoting Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971)).]

As stated above, the trial court decided that neither party had the financial resources to contribute to the older daughter's college education. The judge emphasized that the "ability to pay" factor weighs the heaviest, yet he did not fail to address all of the various, relevant factors. Therefore, the trial judge was consistent with the notions expressed in Lynn and Newburgh and we defer to that determination.

II.

Second, plaintiff contends that the trial court erred in awarding defendant permanent alimony by miscalculating plaintiff's budget. In our consideration of the challenge to the award of alimony, we must keep in mind its purpose. The basic purpose of alimony 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). "The supporting spouse's obligation is set at a level that will maintain that standard." Innes v. Innes, 117 N.J. 496, 503 (1990) (citing Lepis v. Lepis, 83 N.J. 139 (1980)). "Bare survival is not the proper standard, it is the quality of the economic life during the marriage that determines alimony." Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998).

The courts have the equitable power to fix alimony and child support payments. N.J.S.A. 2A:34-23. The goal of this maintenance is to ensure that both spouse and children may continue to live as they had prior to the divorce. Weishaus v. Weishaus, 180 N.J. 131, 140 (2004); Lepis, supra, 83 N.J. at 150. A judge has broad, but not unlimited, discretion in awarding alimony. His or her discretion must take into account the factors set out in N.J.S.A. 2A:34-23(b) and case law defining the purpose of alimony. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005).

N.J.S.A. 2A:34-23(b) sets forth "guidelines and objective standards which frame the exercise of the court's discretion." Ibid. Thus, in determining whether alimony is appropriate and, if so, in setting the type, amount and duration of an award, the court must consider the following statutory criteria, insofar as they are relevant:

(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 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.

[Ibid.]

An appellate court "'give[s] deference to a trial judge's findings as to issues of alimony, if those findings are supported by substantial credible evidence in the record as a whole.'" Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000), (quoting Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998)). An alimony award will not be disturbed unless it is "manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice." Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999).

Trial courts have a duty, however, to make specific findings of fact and to state reasons on the record that support their conclusions. R. 1:7-4; Heinl v. Heinl, 287 N.J. Super. 337, 347 (1996). "Naked conclusions are insufficient . . . [a] judge must fully and specifically articulate findings of fact and conclusions of law." Ibid. We are satisfied that the trial judge's findings of fact were adequate and amply supported.

With respect to the award of alimony, plaintiff first contends that the trial court erred by determining she overstated her monthly lifestyle budget and thus has the ability to pay alimony to defendant. Plaintiff argues in her appellate brief that her current lifestyle is well below the marital lifestyle found by the trial judge. Second, plaintiff asserts that the court overlooked her actual out-of-pocket expenses for the older daughter's college education. Lastly, plaintiff argues that by awarding defendant alimony of $175 per week, even though offset by defendant's obligation to plaintiff of $191 per week in child support, the trial judge's determination that defendant and plaintiff have a comparable shortfall available for their expenses is in error. We disagree.

The trial judge issued a well-reasoned decision analyzing each applicable factor of N.J.S.A. 2A:34-23.1, thereby thoroughly addressing all of plaintiff's contentions. Furthermore, we have reviewed the transcript of the proceeding over which the trial court ascertained the parties' respective expenses and find that the trial court was within the rational bounds of its discretion.2 Therefore, we decline to second-guess the judge's determinations and find that the decision was supported by sufficient credible evidence on the record. Plaintiff failed to carry her burden of proving the award of permanent alimony was an abuse of discretion.

III.

Lastly, plaintiff asserts that the trial court erred in denying plaintiff's request to defer the sale of the marital residence until 2011 when the parties' daughter graduates high school.

The parties' marital residence is located in Stockholm, Vernon Township. At the time of the trial, plaintiff was residing at the home with both daughters, ages sixteen and nineteen.

It is undisputed that the parties are seeking a fifty/fifty equitable distribution of marital property.3 Nevertheless, plaintiff urged the court to defer the sale of the marital residence until the younger daughter's high school graduation in the Spring of 2011 because she believed her daughter would benefit from her community attachments by remaining in the marital residence and finishing her matriculation where she began. The trial court was not persuaded by plaintiff's arguments and ordered the parties to sell the marital property immediately, so that they may withdraw the equity for their respective expenses.

N.J.S.A. 2A:34-23 provides in pertinent part that:

Pending any matrimonial action . . . or after the Judgment of Divorce or dissolution or maintenance whether maintained in this state or elsewhere, the court may make such order as to the . . . care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just.

The equitable distribution portion of that statute authorizes the court "where a judgment of divorce . . . is entered [to] make such award or awards to the parties . . . to effectuate an equitable distribution of the [marital] property, both real and personal . . . ." N.J.S.A. 2A:34-23(h). Appellate review pertaining to the division of marital assets is narrow. Wadlow v. Wadlow, 200 N.J. Super. 372, 377 (App. Div. 1978).

As noted previously, our role as we see it is to "determine whether the result could reasonably have been reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence." Perkins v. Perkins, 159 N.J. Super. 243, 247 (1978). Clearly, "[m]ore than a feeling of dissatisfaction is needed to fuel an appeal." Id. at 248. "A sharp departure from reasonableness must be demonstrated before our intercession can be expected." Ibid.

When considering plaintiff's request of deferment, the lower court determined that

in the circumstances of these parties, it is not feasible for the plaintiff to remain in the marital residence until June of 2011 when [the younger daughter] will finish school. Though the Court would very much like to maintain stability in a child's life, that is another 2 1/2 years and the parties, and Mr. Marinaro specifically, will need to have the equity from the home. The Court, therefore, finds that either the residence must be sold or Ms. Marinaro must buy out defendant's interest.

Plaintiff challenges the court's decision on appeal by contending that she proposed she would not seek the weekly child support from defendant if the sale of the house was deferred to 2011. The trial court roughly calculated a four percent investment return on each parties' respective $113,626.50 in equity in the property. The court assumed that defendant would be able to use that equity for investment purposes, and a four percent return would yield an additional $4,545 of income per year. However, plaintiff argues that if defendant forebears on the sale of the marital residence, defendant would save $9,932 per year - $191 per week times fifty-two weeks - as opposed to the court's calculation of an anticipated $4,545 return on investments made with his share of equity from the sale of the marital residence. In other words, plaintiff asserts in her appellate brief that if there is a deferment of the sale of the house, "the court would accomplish the goal of providing for the care, custody and maintenance of the children while in the meantime, decreasing Mr. Marinaro's weekly child support outlay which far exceeds the rate of return the court attributed to his anticipated receipt of the proceeds from sale."

Although plaintiff's position is an understandable one and we agree with the trial judge that a delay in the marital residence would be ideal for the children, we are satisfied that the family part judge acted within his flexible authority in ordering the immediate sale of the marital residence.4 The residence is the parties' most valuable asset. The equity from the sale will financially benefit all parties and further ensure defendant's ability to meet his child support obligations. Although the actual value of the marital residence is only speculative, the lower court repeatedly mentions that the immediate sale will be conducive to fulfill the parties' economic needs.

If market conditions no longer support that conclusion, the trial court may reconsider its order. We, however, find no just cause to disturb the trial court's exercise of its sound discretion.

Affirmed.

1 Note that defendant appears pro se and his responses do not assist the court; nevertheless, plaintiff has failed to meet her burden of proof on the issues.

2 The lower court does mention that plaintiff may seek alimony modification under a change of circumstance analysis if she decides to contribute her own money to her children's college education. See Lepis, supra, 83 N.J. at 146.

3 There are some minor disputes as to whether certain property is exempt and whether certain debts belong to either party - however, this is not at issue in this appeal.

4 In Lepis, supra, 83 N.J. at 147 (1980), the New Jersey Supreme Court noted that "trial judges should have the utmost leeway and flexibility in determining what is just and equitable in making allocations of marital assets."