SUZANNE ROSSI v. DAVID K. ROSSI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4179-08T34179-08T3

SUZANNE ROSSI,

Plaintiff-Respondent,

v.

DAVID K. ROSSI,

Defendant-Appellant.

___________________________________

 

Argued March 9, 2010 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Passaic County, Docket No. FM-16-902-07.

Linda A. Mainenti-Walsh argued the cause

for appellant (Einhorn, Harris, Ascher,

Barbarito & Frost, attorneys; Ms.

Mainenti-Walsh, on the brief).

Angelo Sarno argued the cause for

respondent (Snyder & Sarno, attorneys;

Mr. Sarno, of counsel and on the brief; Stacey A. Cozewith, on the brief).

PER CURIAM

Defendant David K. Rossi appeals from a dual final judgment of divorce entered following a bench trial on his counterclaim and plaintiff Suzanne Rossi's complaint. The Rossis reached an agreement to share joint legal custody of their two children, assign primary residential custody to plaintiff and provide liberal parenting time for defendant. Defendant's objections to the judgment are to permanent alimony and excessive pendente lite support; allocation of post-complaint credit card debt; child support above the guidelines amount; college expenses; and counsel fees.

We affirm the judgment as modified by this opinion. The modifications correct errors affecting post-complaint debt, pendente lite support, the counsel fee award and child support.

Plaintiff and defendant were married on September 15, 1995. At that time, plaintiff was twenty-seven years old and defendant was thirty-one. They have two daughters one born in July 1994 and the other in February 1996. When the Rossis married, defendant was a high school graduate and working as a linesman for Public Service Electric and Gas (PSE&G), a job he had then held for about ten years. Plaintiff had not graduated from high school but had worked in retail stores. Although defendant thought plaintiff had obtained a GED, she denied that. During the marriage, plaintiff devoted the majority of her time to caring for the children and their home.

About a year after the Rossis' second daughter was born, plaintiff returned to work in retail stores. Her schedule was generally part-time, and her longest work week was thirty-five hours. At some point during the marriage, plaintiff attended beauty school, but she did not take the test required to obtain a license to work in that field. Although plaintiff was diagnosed with multiple sclerosis in 1998 or 1999, she described her health as "okay" for the most part. She has "little bouts in and out of the hospital when [she is] run down, stressed." The prospect of needing "hospitalization" due to "stress" was her "biggest fear" at the time of trial, but she also observed that her "memory is not as good as it used to be."

By working in retail stores, plaintiff earned less than ten dollars per hour. Her hourly wage at the time of trial was $9.59. She testified that health benefits are available through her employer if she pays for them but did not specify the cost. Between 2005 and 2008, plaintiff's highest earnings were $9700 and her lowest earnings were $8507.

Defendant worked for PSE&G throughout the marriage, and by the time of trial he was responsible for his crew of linesmen. His work is done outdoors in all kinds of weather and involves installing, maintaining and repairing wiring, utility poles and transformers. In 2002, defendant was out of work for four to five months while recovering from surgery to repair his right shoulder's rotator cuff. At the time of trial, both of his shoulders were bothering him. After an MRI, physical therapy three times per week was recommended, but defendant was not attending because he felt he could not afford the twenty-five dollars per session co-pay. Defendant's base pay is about $85,000 per year, but he generally receives additional compensation for working overtime hours. His gross Medicare wages and tips during the years 2005 through 2008 were: 2005, $111,540; 2006, $119,414; 2007, $98,675; and 2008, $113,459. If he needs additional surgery, he will receive his base pay but not overtime.

The Rossis separated in October 2007; plaintiff's mother had been living with them for about ten years. She helped them purchase their home by contributing $10,000 or $20,000, and thereafter helped with some expenses. For example, she paid for the replacement of the windows on the second story of the house and, from time to time, food and clothing for the children. Plaintiff's mother earns about $43,000 at a full-time job in which she works during the day. Plaintiff testified that her mother always paid their PSE&G bill and cared for the children at night when needed.

Plaintiff continues to reside in the marital home with the children and her mother. At the time of trial, plaintiff was forty-one years old. Defendant was forty-five years old and living with his mother and father in his childhood home, as he had been since he left the marital home in October 2007.

The Rossis were able to resolve several issues prior to trial. As noted above, they reached an agreement on custody and parenting time. They also stipulated that their home has a fair market value of $330,000 and, after deductions for the amount due on first and second mortgages, equity in the amount of $157,408.

In addition to the first and second mortgages, the Rossis had other significant debt. In 2005, they borrowed $43,000 from defendant's father to purchase two cars. They agreed to allocate the remaining balance on that loan so as to give recognition to the relative value of the cars plaintiff's share being $12,800, and defendant's share being $17,700. On the initial Case Information Statement (CIS) plaintiff filed with the trial court, she reported a monthly payment of $450 on that car loan. In a subsequent CIS she lists a monthly payment of $100.

The Rossis also agreed, prior to trial, to share their pre-complaint marital credit card debt in the amount of $64,000. They were unable to agree on responsibility for credit card debt incurred by plaintiff after the complaint was filed. Plaintiff "reserved her right to seek the division of the post-complaint Citi credit card debt in her name."

The trial judge addressed post-complaint debt. Although the judge denied plaintiff's request for an order compelling defendant to share in debt incurred after defendant commenced payment of pendente lite support, he granted relief with respect to post-complaint credit card debt incurred when plaintiff was not receiving pendente lite support. The judge ordered defendant to pay one-half of $12,153 the amount that the judge determined plaintiff charged post-complaint and prior to the entry of the first pendente lite order. The $12,153 figure includes, however, $7613 already allocated as part of the $64,000 total that the Rossis had agreed to share. The charges added after December 27, 2006 total $4529. Accordingly, applying the trial judge's reasoning, defendant's share is one-half of $4529 or approximately $2264.

The Rossis were also unable to agree on alimony. The judge determined that permanent alimony in the amount of $600 per week was appropriate. Based on plaintiff's education and experience and obligation to care for the children, the judge found that plaintiff did not have the capacity to earn at a rate higher than $9.59 per hour for thirty-five hours per week, or $336 weekly. The judge concluded that defendant had the capacity to earn $110,760 per year, or $2130 weekly, an amount that closely approximates defendant's average annual earnings during the five-year period immediately preceding trial. Considering the duration of the marriage, a period of eleven to twelve years, plaintiff's contributions to the marriage in the home and her age, limited educational background and skills, the judge concluded that permanent, rather than limited duration, alimony was appropriate.

The Rossis' pretrial agreement also addressed child support. They agreed to have child support set in accordance with the child support guidelines after the judge determined the amount of alimony. Based on the income discussed above $336 weekly earnings for plaintiff plus $600 in weekly alimony and $2130 weekly pay for defendant minus $600 weekly alimony the total child support amount is $403 per week. Defendant's share is $241 per week, and plaintiff's share is $162 per week. Under the guidelines calculation, defendant has 59.71% and plaintiff 40.29% of the family income after taxes and alimony. Setting child support aside and focusing on their individual needs, plaintiff has $560 per week and defendant $829 per week.

Although the judge did not articulate any reasons for doing so, he included a provision in the judgment that addresses the cost of the children's summer camps and extracurricular activities, including lessons, tutors, soccer and school-related events. The judge allocated 60% percent of those costs to defendant and 40% to plaintiff.

Defendant asked the judge to consider awarding him a credit for the excessive support he paid under the terms of the pendente lite orders. The judge denied that request. The judge noted that defendant's obligations under the pendente lite order included all of the shelter and transportation expenses listed on Schedules A and B of plaintiff's CIS plus $400 per month for Schedule C expenses. The judge also recognized that the total obligation was "well over half" of defendant's income. Nonetheless, reasoning that defendant was living with his parents and had minimal expenses during that period and that plaintiff's personal expenses were not fully funded, the judge denied relief.

The judge also addressed plaintiff's request for counsel fees. In doing so, the judge considered the factors set forth in Rule 5:3-5(c). Assessing the Rossis' respective income as a consequence of the support provided under the terms of the judgment, the judge determined that neither would have sufficient funds to meet their proposed budgets, that both had significant debts and that both had limited ability to pay attorneys. The judge found that the parties had litigated reasonable positions in good faith and that the fees charged by both attorneys were reasonable. He concluded that with the exception of $15,000 in counsel fees that defendant was obligated to pay plaintiff under prior orders, each party should pay the fees and costs he or she had incurred. The judge was mistaken about the prior orders, however. There was one order awarding counsel fees, and it required defendant to pay $10,000 not $15,000.

Since the notice of appeal was filed, plaintiff's mother has purchased the marital residence and, by post-judgment order of July 13, 2009, defendant is to receive the amount due him for his interest under the dual final judgment of divorce at the time of closing.

Defendant raises these issue on appeal:

I. THE TRIAL COURT ERRED AND MISAPPLIED

ITS DISCRETION IN AWARDING PERMANENT ALIMONY TO PLAINTIFF IN LIGHT OF THE LENGTH OF THE MARRIAGE, AGE, HEALTH AND ABILITY OF PLAINTIFF TO EARN AND ABILITY TO INCREASE HER EARNING POTENTIAL.

II. THE TRIAL COURT ERRED IN DENYING

DEFENDANT'S REQUEST FOR ADJUSTMENT AND CREDIT FOR OVERPAYMENT OF PENDENTE LITE SUPPORT PURSUANT TO MALLAMO V. MALLAMO.

III. THE TRIAL COURT ERRED IN ORDERING

DEFENDANT TO PAY $15,000 IN PENDENTE LITE COUNSEL FEES ON BEHALF OF PLAINTIFF AS PART OF ITS FINAL DECISION AND DEDUCTING SAME FROM DEFENDANT'S SHARE OF THE EQUITY IN THE MARITAL HOME.

IV. THE TRIAL COURT ERRED IN ORDERING

DEFENDANT TO PAY FROM HIS SHARE OF THE EQUITY IN THE MARITAL HOME THE SUM OF $6076 AND ERRONEOUSLY DETERMINING THIS SUM TO BE ONE-HALF OF PLAINTIFF'S POST-COMPLAINT DEBT INCURRED BY PLAINTIFF PRIOR TO THE ORDER OF JUNE 8, 2007.

V. THE TRIAL COURT ERRED IN INCLUDING

PROVISIONS IN THE JUDGMENT OF DIVORCE WHICH WERE NOT INTRODUCED AT TRIAL AND THEREFORE, WERE NOT DECIDED BY THE COURT, SPECIFICALLY A PROVISION OBLIGATING DEFENDANT TO PAY 60% OF VARIOUS ACTIVITIES FOR THE CHILDREN THAT ARE INCLUDED IN THE CHILD SUPPORT GUIDELINES AND ORDERING DEFENDANT TO BE RESPONSIBLE TO CONTRIBUTE TOWARD MISCELLANEOUS COLLEGE EXPENSES.

I

The standards governing this court's review of alimony are well settled. Determinations about alimony are left to the sound discretion of the trial court. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified on other grounds, 183 N.J. 290 (2005). When the trial judge's conclusions are consistent with the law and not "manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice," we do not disturb them. Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001) (internal quotations omitted). The question is not what the members of this court would have decided on the same record; the question we must consider is whether the trial judge's factual findings are supported by "adequate, substantial, credible evidence" in the record and the judge's conclusions are in accordance with the governing principles. Ibid.; see La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001) (noting that we affirm when "the trial court could reasonably have reached its result from the evidence presented, and the award is not distorted by legal or factual mistake").

Contrary to defendant's assertion, we conclude that the judge gave proper consideration to the types of alimony that are available when permanent alimony is not appropriate. N.J.S.A. 2A:34-23(c). After considering all of the statutory factors relevant to alimony and articulating his factual findings with respect to each, N.J.S.A. 2A:34-23(b), the judge discussed whether limited duration or permanent alimony is appropriate in this case. He explained:

The court carefully considered the issue of whether the alimony should be for a limited duration or permanent alimony. . . . [O]bviously age, education and work experience are the prime considerations in determining whether the supported spouse can return to the work force and achieve a comparable lifestyle. It is clear in this case that the plaintiff cannot. She has limited education and very little work experience. At this point in her life, still having the charge of the two children, it is doubtful that she will in any way be able to return to the work force and achieve a similar lifestyle. Hence, the need for permanent alimony.

It is apparent that the judge did not overlook the availability of limited duration alimony or misapply the law. The primary distinctions between cases in which limited duration and permanent alimony are awarded are the duration of the marriage and the degree of dependency that has developed while one spouse focuses on the home rather than advancement in the workplace. "Limited duration alimony is available 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) (internal quotations omitted). Permanent alimony "is awarded after a lengthy marriage for [an] unlimited duration in recognition of prolonged economic dependence and sustained contribution to a marital enterprise." Id. at 66. Thus, limited duration alimony is proper "where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate," and permanent alimony is proper where the marriage is long-term and there is economic need. Cox v. Cox, 335 N.J. Super. 465, 476 (App. Div. 2000).

There is nothing that would permit this court to disturb the judge's decision rejecting limited duration alimony as arbitrary. The record supports the underlying factual findings. This marriage endured for a period of eleven years and three months, which does not include the first year of their first child's life. During the entire period, plaintiff devoted most of her time to her family and defendant primarily devoted his efforts to the workplace. She came to depend on defendant's earnings while he enhanced his capacity to earn. At the end of this marriage, plaintiff has limited education and skills, and defendant has risen to supervise a crew of linesmen employed by PSE&G.

On the facts as the judge found them to be, defendant is compensated well for his demanding work. Moreover, at her age and with her background and experience, plaintiff can, at best, earn about 16% of the amount defendant earns. On that income, she cannot support herself at a standard reasonably comparable to the marital standard of living. See Crews v. Crews, 164 N.J. 11, 16 (2000) (explaining that "the goal of a proper 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").

Permanent alimony is appropriate. Defendant's claimed error based on denial of limited duration alimony overlooks the express direction provided by the Legislature. "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).

Defendant correctly notes that the judge did not address the possibility of rehabilitative alimony, but there was no evidence in this case raising a question of rehabilitative alimony. Defendant's reliance on Heinl v. Heinl, 287 N.J. Super. 337 (App. Div. 1996) is misplaced. In that case, we remanded because the judge failed to articulate a reason for an award of permanent rather than rehabilitative alimony despite evidence raising the issue. Id. at 346-47. The Heinls had been married for fewer than eight years, the supported spouse was only thirty-four years old, had graduated from secretarial school, had previously been employed full-time and offered no explanation as to why she could not seek full-time employment. Id. at 342, 346-47. Again, the Legislature has provided direction that defendant's argument does not address: rehabilitative alimony should be awarded "based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur." N.J.S.A. 2A:34-23(d). No evidence of that sort was presented in this case.

II

Defendant was subject to three different pendente lite support orders. He claims that the orders were based on facts proved to be erroneous at trial and that relief is required to avoid injustice to him.

The initial order was entered on June 8, 2007, while defendant was still residing in the marital home. It required him to pay all shelter expenses, "including, but not limited to, mortgage, home equity loan, taxes, repairs, maintenance, water and sewer, lawn care, land line telephone and cable television," a total of $3497, and all transportation expenses, a total of $786, as set forth in Schedules A and B of plaintiff's CIS of February 28, 2007. In addition, defendant was obligated to pay $400 per month in cash support to cover a portion of plaintiff's Schedule C expenses. That gave him a monthly support obligation of $4683.

When defendant left the marital home in October 2007, plaintiff filed another motion for pendente lite support. On April 11, 2008, the judge modified support and required defendant to pay cash support rather than cash support plus bills. Under that order, defendant's total obligation was $4633 per month $2000 for child support and $2633 for alimony. The judge based the amount on the expenses listed by plaintiff in her CIS.

By order of May 8, 2008, which was entered on defendant's motion for reconsideration, the judge reduced support, effective April 11, 2008, to $4130 per month $1750 for child support and $2380 for alimony. The $503 reduction corrected for a double counting of property taxes mistakenly included in the April 11, 2008 order. The judge declined to address defendant's additional objections to the amount of his support obligation: that it included $200 for plaintiff's monthly cell phone bill, $263 for the PSE&G bill paid by plaintiff's mother, a monthly home equity loan payment erroneously stated as $709 that was actually $550 according to defendant and $579 according to plaintiff, and $450 for a car payment that plaintiff was not making. With the exception of the cell phone bill, which the judge said he intended to include, the judge viewed the questions as matters better addressed at the conclusion of trial.

Defendant again sought relief based on the alleged overcharges at trial, but it was denied. With respect to the car payment, the judge reasoned that plaintiff's failure to pay did not redound to defendant's detriment because the Rossis had agreed that she would assume responsibility for the loan. Overlooking plaintiff's testimony acknowledging that her mother paid the PSE&G bill, the judge found that there was no evidence indicating defendant's mother-in-law was paying fixed expenses. The judge did not expressly address plaintiff's overstatement of the monthly payment on the home equity loan, but the evidence did not establish the amount of any overstatement. Indeed, on their initial CISs, both plaintiff and defendant stated that the payment was about $700 per month. In the end, the judge reasoned that because defendant was living with his parents he had minimal expenses and because plaintiff's budget was not fully funded, an adjustment was not warranted.

A decision to correct a flawed pendente lite order is left to the sound discretion of the trial judge in light of the equities. Jacobitti v. Jacobitti, 263 N.J. Super. 608, 618 (App. Div. 1993), aff'd, 135 N.J. 571 (1994). Like any other exercise of judicial discretion, retroactive modification must be based on an application of relevant legal principles to facts supported by the record. For example, in Jacobbiti, we concluded that a retroactive adjustment was necessary to "reimburse this physically disabled defendant for the debts incurred by her during the pendency" of the divorce action due to the "woefully inadequate" pendente lite support she received. Ibid.

The starting point for the inquiry on a motion for this relief is whether there is a deviation sufficiently significant to warrant a modification. The analysis should begin with a comparison between support awarded at the end of trial and support ordered prior to that date, disregarding, of course, differences explained by the parties' post-judgment access to marital assets that were not available during the pendente lite period. Here, the monthly support awarded after trial was about $1000 less than the support paid pending judgment. Given the enormity of the Rossis' credit card debt, their combined income and their few marital assets, the $1000 monthly difference is significant.

There are other facts relevant to the equities. In this case, the amount of cash support defendant was obligated to pay effective April 11, 2008 was based on expenses listed in plaintiff's CIS. To the extent those expenses were overstated or not paid, plaintiff received support for expenditures the judge did not intend to shift to defendant, and he bore an unintended burden. Under these circumstances, the fact that defendant opted to live with his parents does not weigh in favor of allowing plaintiff to reap an undue benefit flowing from the misstatement of expenses.

For those reasons, we conclude that the trial judge erred by ignoring undisputed evidence of overstatements. Defendant is entitled to an adjustment for the ten-month period between April 11, 2008 and entry of the dual final judgment of divorce in the amount of $263 per month for the PSE&G bill and $450 per month for the car loan minus what plaintiff actually paid on the loan. In contrast, we see no abuse of discretion in the denial of a credit for any cell phone payments. In addressing the motion on May 8, 2008, the trial judge indicated that he intended to require defendant to pay that expense, and that determination was well within the judge's discretion and supported by evidence that plaintiff's personal expenses were not fully funded.

III

There are several other technical errors in the judgment that warrant correction. As noted above, the judge double charged defendant for credit card debt in the amount of $3812. That mistake must be corrected by reducing the $6076 amount to $2264.

There is another error relevant to counsel fees. As we understand the judge's decision, he intended to have defendant contribute to plaintiff's counsel fees in the amount he was obligated to pay under pendente lite orders. The judge mistakenly awarded $5000 more than the $10,000 defendant was required to pay under those orders. That error should be corrected.

Finally, the judgment includes a provision that obligates defendant to pay 60% of his children's expenses for "summer camps and extracurricular activities, including but not limited to, lessons, tutors, soccer and school-related events for the unemancipated children." The error here is one of law.

The Rossis agreed to have the judge determine child support in accordance with the guidelines. A child support award calculated pursuant to the guidelines includes an amount for "[f]ees, memberships and admissions to sports, recreational, or social events, lessons or instructions . . . ." Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2390 (2010). In contrast, "[t]he average cost of child care, including day camp in lieu of child care, is not factored into in the schedules." Ibid. Thus, the court was correct in dealing with the non-recurring cost of camp in a separate provision of the judgment but not in duplicating expenses covered by the guidelines support "[f]ees, memberships and admissions to sports, recreational, or social events, lessons or instructions." See ibid.

We do not suggest that a judge may not, on proper application and adequate evidence, identify extraordinary expenses appropriately incurred for the activities of the children in a particular case. It is quite common for parents to agree to fund special activities for their children beyond the level provided by a guidelines award of support. Nonetheless, absent a record and findings of fact permitting a judge to determine that it is appropriate to require an extraordinary expenditure on such activities in a particular case, a court should not require it. See R. 5:6A (permitting modification of support required by the guidelines on a showing of good cause).

We have considered defendant's remaining arguments in light of the record and concluded that none of them has sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed as modified and remanded for entry of an order amending the judgment in conformity with this opinion.

 

The separation was required by temporary and final restraining orders entered, respectively, in October and December 2007.

(continued)

(continued)

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A-4179-08T3

July 30, 2010