LEE M. FOX v. EILEEN R. FOX
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3875-05T1
LEE M. FOX,
Plaintiff-Respondent,
v.
EILEEN R. FOX,
Defendant-Appellant.
Submitted October 19, 2009 - Decided January 5, 2010
Before Judges Lisa, Baxter and Alvarez.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Gloucester County, Docket No. FM-08-357-04.
John M. Makowski, attorney for appellant.
Berg & Pearson, attorneys for respondent
(Joy A. Pearson-Schneck, on the brief).
PER CURIAM
Defendant Eileen R. Fox appeals from an alimony award
entered post-divorce, claiming it is inadequate, and the denial
of her request for counsel fees and costs. For the reasons set
forth below, we affirm.
Plaintiff Lee M. Fox and defendant married on June 4, 1988
and have two adult children. The parties separated on August
18, 2003; a dual final judgment of divorce was granted on
February 17, 2006. In the divorce action, each was made
responsible for their individual counsel fees.
Defendant appealed but almost immediately sought a
temporary remand to the trial court for reconsideration of
alimony in light of her Social Security Disability (SSD) award.
An order was entered remanding the matter for that purpose on
January 31, 2007.
As a result of the remand hearing, the trial court on
January 11, 2008 ordered plaintiff to pay $492 per week in
permanent alimony until February 2009, when the payment would
decrease to $365 per week due to defendant's anticipated
eligibility for Medicare.1 On January 31, 2008, an amended order
was entered, which is unrelated to this appeal. Plaintiff
simultaneously filed a motion seeking reconsideration of the
January 11 alimony order and requesting the court to compel
defendant to provide proof of medical insurance coverage.
Defendant cross-moved for a recalculation of alimony based on
changed circumstances triggered by the sale of her residence in
Clayton, New Jersey, the loss of rental income that had been
imputed to her as the owner of the Clayton property, and her
relocation to Kentucky. In an April 18, 2008 order, the court
1
The divorce judge had awarded defendant permanent alimony of
$325 weekly, which included $50 towards defendant's medical
expenses.
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granted plaintiff's request to compel defendant to provide proof
of health insurance and denied both parties' requests for
reconsideration of the January 11 alimony order. Thereafter, in
orders dated July 28, 2008 and August 11, 2008, the court also
denied defendant's motion for reconsideration of the denial of
her request for counsel fees and costs.
Plaintiff is in the business of repairing school bus seats
and also conducts antiques auctions. Plaintiff's position
throughout all proceedings in the trial court has been that
despite defendant's physical conditions, she is able to work on
at least a limited basis. Defendant suffers from lupus and
progressive hearing loss. She received approximately $110,000
by way of equitable distribution, including her share of the
proceeds of sale of the marital home.
Plaintiff's most recent case information statement (CIS)
indicated 2004 net income of $41,700, plus an additional $2020
in unearned gross income. Defendant's February 20, 2008 CIS
indicated net 2007 income from alimony of $22,210 as well as
monthly unearned income of $771 in SSD. She currently pays her
brother $1000 monthly rent for the modular three-bedroom, two-
bath home she now occupies in Kentucky. According to the
settlement statement attached to defendant's moving papers, she
netted only $7600.20 from the sale of the home she purchased
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individually in New Jersey after the sale of the marital
residence. The home was actually in foreclosure at the time of
sale. While residing in that second property, defendant had
unrelated adults living with her who paid no rent. At the time
of the remand hearing, defendant claimed she had no health
insurance because she could not afford any, and that she had not
had health insurance since the divorce trial. She further
testified that she could not afford to pay for regular doctor
visits or medication for her lupus condition without insurance.
She also claimed that to have maintained medical insurance after
the divorce would have cost her $328.55 monthly for a policy
having a $10,000 deductible.
Defendant has not worked, or attempted to find work, since
October 2003 because of her medical conditions. She did
acknowledge at the remand hearing having worked a couple of
auctions earning $360 in one year. She testified that she was
permitted to earn up to $900 a month without the loss of SSD.
Defendant's position was that her medical expenses would
decrease substantially once she was on Medicare, but she did not
provide more detailed information with regard to those expenses.
Defendant's SSD payments of $771 per month began in February
2007. She became eligible for Medicare as of February 2009.
Defendant's points on appeal are:
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POINT I. THE COURT ERRED IN FAILING TO
CALCULATE THE DEFENDANT'S TAX CONSEQUENCE
WHEN DETERMINING HER NEED FOR SUPPORT.
POINT II. THE REMAND JUDGE ERRED IN
ARBITRARILY DESIGNATING A DATE FOR THE
DECREASE IN SUPPORT WITHOUT CONSIDERING THE
COST OF MEDICARE AND A MEDICARE SUPPLEMENT
AND ASSUMING THAT THE DEFENDANT WOULD NO
LONGER HAVE MEDICAL INSURANCE COSTS.
POINT III. THE REMAND JUDGE ERRED AND
ABUSED HER DISCRETION BY DETERMINING THAT
THE DEFENDANT WAS ABLE TO GENERATE INCOME
FROM A NON ASSET.
POINT IV. THE REMAND JUDGE ERRED IN FAILING
TO THE DEFENDANT [SIC] WITH AN AWARD OF FEES
AND COSTS AND FAILED TO CONSIDER THE
STATUTORY CRITERIA FOR AN AWARD.
I.
The ordinary standard for modifying support post-judgment
under Lepis v. Lepis,
83 N.J. 139 (1980) is "changed
circumstances." See generally Donnelly v. Donnelly,
405 N.J.
Super. 117 (App. Div. 2009) (explaining the Lepis requirements).
As a general matter, alimony "is an economic right that
arises out of the marital relationship . . . [.]" Mani v. Mani,
183 N.J. 70, 80 (2005). It "provides the dependent spouse with
'a level of support and standard of living generally
commensurate with the quality of economic life that existed
during the marriage.'" Ibid. (quoting Stiffler v. Stiffler,
304 N.J. Super. 96, 99 (Ch. Div. 1997)). These objectives of
alimony are codified in a thirteen-factor test set forth in
A-3875-05T1
5 N.J.S.A. 2A:34-23b. Modest fluctuations in income, particularly
over a short period of time, do not automatically require
See Larbig v. Larbig, 384 N.J.
alimony to be recalculated.
Super. 17, 22-23 (App. Div. 2006).
We will not overturn alimony awards unless we conclude that
the trial court "clearly abused its discretion, failed to
consider all of the controlling legal principles, or . . . [are]
well satisfied that the findings were mistaken or that the
determination could not reasonably have been reached on
sufficient credible evidence after considering the proofs as a
Heinl v. Heinl,
287 N.J. Super. 337, 345 (App. Div.
whole."
1996) (citing Rolnick v. Rolnick,
262 N.J. Super. 343, 360 (App.
Div. 1993)); see also Reid v. Reid,
310 N.J. Super. 12, 22 (App.
Div.), certif. denied,
154 N.J. 608 (1998) (stating that alimony
awards should be affirmed if supported by substantial credible
evidence in the record as a whole).
II.
Defendant contends that the court erred in failing to
appropriately consider tax consequences to defendant in
calculating the amount of alimony. We are not entirely clear on
the precise nature of the asserted error; however, the trial
court's final judgment of divorce stated the obvious, that
defendant would be taxed on the alimony award as income and
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plaintiff would be able to deduct it from his gross taxable
income.
The January 11, 2008 decision increasing defendant's
alimony to $492 a week, automatically decreasing upon
defendant's receipt of Medicare, did not change the tax
consequences to either party. Although the court made a passing
reference to the fact that defendant might be able to deduct her
medical expenses, the judge's calculation of a fair amount of
alimony did not hinge upon that possibility. The judge merely
reiterated that, as with any other alimony order, the payments
would be taxable to defendant and deductible by plaintiff.
Defendant's reliance upon Streader v. Streader,
18 N.J.
Super. 433, 437 (App. Div.), certif. denied,
10 N.J. 145 (1952)
is misplaced. Nothing in that case required the judge to do
more than acknowledge that the payor can deduct alimony and the
payee must declare it as income. Defendant does not provide any
justification, legal or otherwise, for the suggestion that the
award should be increased to compensate for the fact the
payments are taxable income.
The remand judge was well aware that defendant was renting
in Kentucky, thereby losing some of the tax benefits of home
ownership she enjoyed prior to the move. That factor alone,
A-3875-05T1
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however, did not constitute so significant a change of
circumstances such as would warrant an increase in alimony.
III.
Defendant also contends that the automatic reduction in
alimony scheduled for February 2009, when she became eligible
for Medicare, was error. It is her position that the reduction
does not take into account her Medicare insurance premiums or
any other unreimbursed costs associated with her medical care.
Defendant had the opportunity to present more detailed
information about these alleged expenses and chose not do so.
She merely agreed that her need for alimony would decrease once
she was eligible for Medicare. If, in hindsight, she should
have addressed the issue in some other fashion, that alone does
not justify reversal of the order.
The court explained that the $127 per week reduction
beginning in February 2009 when defendant would become eligible
for Medicare, "represents the cost of health insurance in the
amount of $6600 per year which is the amount utilized to
determine the defendant's need for this benefit." Defendant's
own submissions were in accord.
On appeal, defendant contends that this date for a decrease
was arbitrary, yet does not explain the error the court
allegedly made in the selection of the date. Defendant had the
A-3875-05T1
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opportunity to produce evidence which would establish why no
reduction should ensue, and did not do so. Under the
circumstances, we do not think it appropriate, as defendant
requests, for the matter to be remanded yet again for defendant
to be given another opportunity to provide information. No
explanation is proffered as to why she did not supply the
details previously.
IV.
Defendant also contends that the remand judge erred by
continuing to impute income to her even after the sale of her
New Jersey real estate. Income was imputed to defendant because
she allowed adults not related to her to live with her without
paying rent. The imputed income came to $450 per month. On the
subject, the remand judge stated the following:
At the time the matter was tried Ms.
Fox represented her budget. That was based
on the circumstances where she was living at
a home that she had purchased. The Court
acknowledges that it was under sheriff's
sale, but that the need or the basis for the
request for alimony was assuming or based on
Ms. Fox paying the bills for that residence.
She now has moved to another residence in
Kentucky. She says her rent is $1,000 a
month. The Court does note and it doesn't
appear to be disputed, that it is her
brother who's the landlord that's renting
her this property, and the Court does not
find that the imputed income that I imputed
to her previously of 450 per month for a
rent [sic] is a substantial changed
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circumstance that would warrant me
increasing Ms. Fox's alimony.
Quite frankly, she's renting, according
to the documentation that's provided, a
three-bedroom home with at least two
bathrooms. I would understand or I would
not think her brother is going to deny her
the opportunity to take on tenants or bring
in a boarder if she so desires.
Nonetheless, I already made a finding that
based on the marital standard of living the
income that Mr. Fox made of $68,000 per year
at the time of the divorce as determined by
Judge McMaster that quite frankly Mr. Fox
has any [sic] ability to pay any more
alimony than that which the Court ordered.
The court also said:
based [on] her renting a three-bedroom home
there's no preclusion of subleasing or
otherwise. It just says that she would have
to get the permission of the landlord, which
is her brother. So she certainly has the
ability if she would like with a three-
bedroom, two-bathroom home to take on a
boarder or a tenant if she so desires, but,
again, the Court does not find that $104 per
week that I imputed is a substantial change
that would warrant me increasing the
alimony.
In addition to noting that defendant was again living in a
home large enough to accommodate renters, the court reiterated
that plaintiff did not have the ability to pay additional
alimony. Although defendant's contention is that the court
essentially imputed income to her from a nonexistent asset, that
is a mischaracterization of the court's analysis. The court
ruled that defendant had not met her burden of proving a
A-3875-05T1
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substantial change in circumstances because all she did was
replace one three-bedroom home with another. Additionally,
defendant's brother stated on the record that he had waived the
$2000 security deposit called for by the lease, which defendant
implied she had paid. The court questioned defendant's
credibility as to her financial needs because of her inflated
budget. We accord great deference to the credibility
determinations made by the trier of fact, particularly by the
matrimonial courts. Cesare v. Cesare,
154 N.J. 394, 412 (1998).
Therefore, there was no error in the court maintaining alimony
at the same level.
V.
Lastly, defendant contends that the remand court erred in
failing to award counsel fees and costs. Because the court
awarded defendant an increase in alimony but did not award
counsel fees and costs due to defendant's "bad faith in failing
to negotiate and . . . unreasonableness in requesting excessive
alimony," defendant contends the court's analysis was illogical
and factually flawed.
The award of counsel and expert fees in a matrimonial
matter rests in the discretion of the trial court. Williams v.
Williams,
59 N.J. 229, 233 (1971); Heinl v. Heinl, supra,
287 N.J. Super. at 349-50; Fellerman v. Bradley,
191 N.J. Super. 73
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(Ch. Div.), aff'd,
192 N.J. Super. 556 (App. Div. 1983), aff'd,
99 N.J. 493 (1985). Absent a clear abuse of discretion, a trial
court's award of counsel fees should not be disturbed. Strahan
v. Strahan,
402 N.J. Super. 298, 317 (App. Div. 2008) (citing
Rendine v. Pantzer,
141 N.J. 292, 317 (1995)).
Rule 5:3-5 lists the factors to be considered in deciding
the question of counsel fees:
(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.
[R. 5:3-5(c).]
Focusing on the reasonableness and good faith of the positions
advanced by the parties, the court found defendant's
credibility, good faith, and the reasonableness of her position,
doubtful:
Regarding her health, Defendant
testified that she suffers from Lupus.
However, she testified she has not taken her
Lupus medication since her medical insurance
lapsed after the February 2006 Dual Final
Judgment of Divorce. Defendant did not
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produce current or past due medical bills
even though she is uninsured and testified
that her past due bills are "up at the
Appellate Division." Defendant complained
that she could not afford medical insurance
since after the divorce yet received more
than $157,000.00 from equitable distribution
and an inheritance of $50,000.00 in addition
to Plaintiff's alimony payments of $325 per
week.
Regarding her employability, while the
Defendant claimed she went on a two month
vacation to Florida for health reasons, her
daughter, who resided with her testified
that Defendant went to Florida to be with
her boyfriend and help him clean up his
hurricane damaged property. Defendant's
daughter testified that it was virtually
impossible to reach the Defendant by
telephone as the single telephone line
always rang busy because of Defendant's
continuous computer usage of up to 10 to 12
hours a day. Yet, Defendant testified that
she is exhausted, has to lay down and sleep
every couple of hours in the afternoon and
has no energy to do anything and that is why
she has not even attempted to work since
2003.
Regarding the tenants and Defendant's
residence, Defendant testified that she last
made a mortgage payment in October, 2006.
She made no attempt to make any further
payments, has made no attempt to contact her
mortgage company, has not listed the
property for sale until recently, never
offered a Deed in lieu of foreclosure, never
filed for bankruptcy and yet refused rent
from her tenants. She admitted that she
took a vacation to Kentucky leaving her
bills unpaid during this period of time
while the tenants continued to reside in the
property rent free.
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As to the reasonableness of Defendant's
position, Defendant submitted in her Plenary
Hearing Brief and Summation that she has a
present need, before taxes of $54,060 per
year alimony. Utilizing Judge McMaster's
calculation of need, she submits she has a
shortfall in her budget of $420 per week.
Defendant's request for $420 per week in
addition to the current $325 per week
payment is unreasonable based on the marital
lifestyle standard and all other factors
addressed in the opinion. Defendant's
budget was admittedly exaggerated and
included usage of the property and the
utilities by the tenants. She receives
yearly SSD of $9,564. If her request of
$420 per week is granted, her income would
be $48,304, far greater than the standards
enjoyed by Defendant during the course of
the marriage. There was a resulting
inability to negotiate due to the
unreasonableness of Defendant's excessive
request for alimony. Despite the fact that
the Court awarded Defendant additional
alimony to sustain her standard of living
and to obtain health benefits due to her
disability, based on the totality of the
circumstances and testimony in this matter,
the Court will not award Defendant counsel
fees.
As the court summarized it, although plaintiff had the
greater ability to pay counsel fees, defendant's "credibility
continues to be at issue with the Court." Because she relocated
to Kentucky within a month after testifying about her New Jersey
expenses without any mention of the projected move, the court
felt that "clearly at that time [defendant] had no intention of
remaining in the home in Clayton, [and she] knew that she wasn't
going to be incurring those expenses."
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In this context, there is no merit to defendant's
contention that the trial court failed to consider the
appropriate factors on remand. The court appropriately focused
on defendant's credibility. Defendant had access to substantial
funds from the sale of the marital home, her share of the
marital businesses and from her inheritance, yet failed to
obtain health insurance or medication for her lupus condition or
even to pay the mortgage on her new home. At the same time,
defendant took trips to Florida and Kentucky and allowed others
to reside rent-free in her home. Her claim of need was
accordingly found to be exaggerated. The court therefore did
not abuse its discretion in denying defendant an award of fees.
Accordingly, we affirm.
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