STEVEN BRODY v. LISA BRODY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4396-08T3
STEVEN BRODY,
Plaintiff-Respondent,
v.
LISA BRODY,
Defendant-Appellant.
_____________________________
Argued March 9, 2010 - Decided July 2, 2010
Before Judges Gilroy and Simonelli.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Camden County, Docket No. FM-04-1219-08.
Paul R. Melletz argued the cause for
appellant (Begelman, Orlow & Melletz,
attorneys; Mr. Melletz, on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant Lisa Brody appeals from that part of the April 2,
2009 Family Part order denying her request for permanent
alimony, equitable distribution of an Individual Retirement
Account (IRA), and counsel fees, and imputing income to her for
child support purposes. We affirm.
We derive the following facts from the evidence presented
at trial.
The parties were married on September 8, 1990. Two sons
were born of the marriage, one in 1992 and the other in 1995.
In 2002, the parties began sleeping apart. They separated on
June 2, 2003, after the sale of the marital home, from which
they each received $12,500. Thereafter, defendant and the
children began residing with defendant's paramour, which is
where they resided at the time the trial began in January 2009.
Plaintiff filed a divorce complaint on February 20, 2008.
Although the parties testified that they enjoyed a middle
class standard of living during the marriage, they struggled
financially, with both parties filing for personal bankruptcy in
2002, and plaintiff's business going bankrupt that same year.
At the time of trial, plaintiff, then age forty-three, was
employed by a car dealership, earning $1,000 per week plus
commissions. He earned $126,112 in 2008. He also has an IRA,
which had a value of $91,662.83 as of January 28, 2001. He
withdrew $35,350 from January 2002 to May 2003, and $37,200 from
January 2004 to June 2007, allegedly to pay the family's
expenses after his business failed and to support his children.
The IRA had a value of $14,552.67 as of December 31, 2008.
A-4396-08T3
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During the parties' separation, plaintiff paid $441 per
month for defendant's car, $75 per month for her car insurance,
and placed her on his cell phone account. Plaintiff also paid
$200 per week for child support, $133.28 per week for medical
insurance and $8.54 per week for dental insurance for himself,
defendant and the sons, $25 per month for his sons' orthodontia,
$550 per month for his youngest son's sports clubs, and $3,889
for his youngest son's dental bills. He also had a tax judgment
entered against him in 2008 for $12,230.36 owed by his defunct
corporation.
Defendant graduated high school and completed two semesters
of college. She worked part-time during the marriage as a
receptionist and bank teller, earning approximately $17,000 per
year at one point. After the separation, her income steadily
decreased: she earned $10,699 in 2005, $11,947 in 2006, and
$7,744 in 2007. In 2008, she worked an average of ten hours per
week, earning $13 per hour. She became unemployed in September
2008, and received $127 per week in unemployment benefits. In
2008, she earned $6,800 from her employment and $2,052 from
unemployment benefits, for a total income of $8,852. At the
time of the trial, she was forty years old. She had not sought
employment after September 2008, because she wanted to be home
for her then-teenaged sons.
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Defendant's paramour earns approximately $78,000 per year.
During the time defendant lived with him she allegedly paid $500
monthly for groceries. However, the paramour has paid all of
the household expenses since the time defendant became
unemployed in September 2008.
Defendant sought permanent alimony of $300 per week.
Applying the criteria set forth in N.J.S.A. 2A:34-23(b), the
trial judge denied permanent alimony, finding that defendant was
"totally not dependent on plaintiff for support, as plaintiff
[had] not contributed to her lifestyle for the last six
years[,]" and from the time of the separation "defendant was
supported by her cohabitant continuously up to the time of trial
and the cohabitation is to continue for an indefinite time."
The judge found lacking in credibility defendant's and her
paramour's testimony about their cohabitation, emphasizing that
"the paramour's testimony on the issue of cohabitation was
prepared and coached by the defendant. The Court even observed
defendant sending physical signals to her paramour during . . .
his testimony."
The judge rejected defendant's claim that the parties had a
$125,000 annual income during that marriage, and found the
amount to be approximately $75,000. The judge also found that
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during the six years of separation, defendant had maintained the
standard of living the parties enjoyed during the marriage.
Defendant also sought child support. In setting the amount
of child support, the judge relied on the child support
guidelines and plaintiff's 2008 income of $126,112, and
increased the amount from $200 weekly to $356 weekly, with a
weekly credit of $42 for the children's medical insurance. The
judge also imputed income to plaintiff of $13 per hour based on
a forty hour work week, concluding that
There was no evidence presented to the Court
that the defendant is unable to work a full
work week. Instead, defendant relies on her
personal preference to be home with her
children. The children are ages 16 and 13,
and there was no evidence of circumstances
that would require defendant to be home
full-time. Defendant is clearly able and
capable of maintaining full-time employment.
Defendant also sought equitable distribution of fifty
percent of the amount plaintiff withdrew from his IRA during the
marriage and fifty percent of its value as of December 31, 2008.
distribution of the $35,350 in
The judge denied equitable
withdrawals made from January 2002 to May 2003, finding credible
plaintiff's testimony that he used those funds to support the
family and maintain a marital standard of living during a time
when "the parties were experiencing financial difficulties as
plaintiff's business had [gone] into bankruptcy in 2002."
A-4396-08T3
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However, the judge found not credible plaintiff's testimony that
he used the $37,200 withdrawn from January 2004 to June 2007 for
the same purpose, and awarded defendant $18,600. The judge also
awarded defendant $7,276.33, representing fifty percent of the
IRA's value as of December 31, 2008.
The judge also ordered plaintiff to continue paying for
defendant's car, and denied each parties' request for counsel
fees, finding that "[n]either party was overly successful in the
issues presented at trial[,]" and that both parties have the
ability to pay their own attorney's fees. Specifically as to
defendant, the judge found that although a disparity existed
between the parties' income, "this is partially because of
defendant's personal preference not to be employed." This
appeal followed.
On appeal, defendant contends that the judge abused her
discretion in denying permanent alimony and attorney's fees, and
erred in imputing income to her in calculating child support and
in the equitable distribution of the IRA. We disagree.
Our review of the trial judge's factual findings is
limited; if those findings are supported by sufficient credible
evidence, they will not be disturbed. Cesare v. Cesare, 154
394, 411-12 (1998). We defer to the credibility
N.J.
determinations of the trial judge where, as here, the judge has
A-4396-08T3
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made specific credibility determinations after hearing extensive
testimony. See State v. Locurto,
157 N.J. 463, 470-74 (1999).
We give particular deference to the Family Part because of its
expertise in matrimonial matters. Cesare, supra,
154 N.J. at
412.
"In reviewing an alimony award, '[w]e give deference to a
trial judge's findings as to issues of alimony, if those
findings are supported by substantial credible evidence in the
Cox v. Cox,
335 N.J. Super. 465, 473 (App.
record as a whole.'"
Div. 2000) (quoting Reid v. Reid,
310 N.J. Super. 12, 22 (App.
Div.), certif. denied,
154 N.J. 608, (1998)). We will not
disturb the trial judge's award of alimony absent abuse of
discretion:
The award of spousal support is broadly
discretionary. This discretion is codified
in N.J.S.A. 2A:34-23(b) which provides that
'[i]n all actions . . . for divorce . . .
the court may award . . . permanent alimony;
rehabilitative alimony; limited duration
alimony or reimbursement alimony to either
party.' (Emphasis added). Of course, the
exercise of this discretion is not
limitless. In itemizing the thirteen
specific criteria to be considered in fixing
alimony, the statute sets guidelines and
objective standards which frame the exercise
of the court's discretion.
[Steneken v. Steneken,
367 N.J. Super. 427,
434, 843 (App. Div. 2004), aff'd as
modified,
183 N.J. 290 (2005) (alteration in
original).]
A-4396-08T3
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The party seeking alimony bears the burden of establishing
need. Finelli v. Finelli,
263 N.J. Super. 403, 406 (Ch. Div.
1992). Thus, in determining an alimony award, the trial court
must consider "[t]he actual need and ability of the parties to
N.J.S.A. 2A:34-23(b)(1).
pay[.]"
We are satisfied that the trial judge properly determined
that defendant failed to establish a need for permanent alimony.
Except for a car, car insurance and a cell phone, defendant has
not depended on plaintiff for support since the separation.
Rather, she has been cohabitating with her paramour, who has
been fully supporting her and her children for six years, and
has maintained the standard of living she had become accustomed
to prior to the separation. Further, plaintiff must still
provide defendant a car, the monthly cost of which exceeds the
$300 defendant seeks in alimony, thus providing defendant a
benefit she received during the marriage.
As for the imputation of income, if the court finds that a
parent, without just cause, is voluntarily unemployed or
underemployed, it shall impute income to that parent based on
potential employment and earning capacity, among other factors.
Caplan v. Caplan, 182 N.J. 250, 268 (2005); Bencivenga v.
Bencivenga,
254 N.J. Super. 328, 331 (App. Div. 1992); Pressler,
Current N.J. Court Rules, Appendix IX-A to R. 5:6A, ΒΆ12 at 2517.
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Once the trial court decides that income should be imputed, it
must then determine the reasonable amount of income to impute to
that party considering the factors set forth in N.J.S.A. 2A:34-
23(a). Caplan, supra,
182 N.J. at 270-71.
Applying these standards, we discern no abuse of discretion
in the imputation of income by the trial judge. Defendant is
voluntarily unemployed without just cause, and there is no
evidence showing that she is incapable of working full-time,
earning $13 per hour. Her desire to be home for her teenaged
sons does not absolve of her obligation to contribute to their
support.
We also discern no abuse of discretion in the equitable
See Kothari v. Kothari, 255
distribution of plaintiff's IRA.
N.J. Super. 500, 506 (App. Div. 1992) (holding that the trial
court's determination regarding the dissipation of assets lies
within the sole discretion of the trial court and will not be
reversed absent an abuse of discretion). Defendant provides no
competent evidence disputing plaintiff's credible testimony that
he used the funds withdrawn from January 2002 to May 2003 for
the benefit of the joint marital enterprise. Id. at 507.
Finally, an award of counsel fees in matrimonial matters
4:42-9(a)(1);
rests in the discretion of the trial court. R.
R. 5:3-5(c); Williams v. Williams,
59 N.J. 229, 233 (1971). We
A-4396-08T3
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will not disturb such exercise of discretion absent of showing
of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App.
"Discretion, however, means legal discretion, 'in
Div. 1999).
the exercise of which the judge must take account of the law
applicable to the particular circumstances of the case and be
governed accordingly.'" Alves v. Rosenberg,
400 N.J. Super.
553, 562-63 (App. Div. 2008) (quoting State v. Steele ,
92 N.J.
Super. 498, 507 (App. Div. 1966)).
Here, the judge properly considered the Rule 5:3-5(c)
factors in determining whether counsel fees should be awarded.
Although the judge did not make findings as to all nine factors,
she noted the disparity in the parties' income but properly
concluded that this disparity was "partially because of
defendant's personal preference not to be employed." The judge
determined that each party was able to pay his or her attorney
fees, "both parties were somewhat unreasonable in their desire
not to settle before a trial;" and that "[n]either party was
overly successful in the issues presented at trial." Defendant
has not shown that the judge abused her discretion in making
these factual findings.
Affirmed.
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