ALLEN RAEVSKY v. CELY J. BRODY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6148-08T1
ALLEN RAEVSKY,
Plaintiff-Respondent,
v.
CELY J. BRODY,
Defendant-Appellant.
_______________________________
Argued May 10, 1010 Decided May 26, 2010
Before Judges Reisner and Chambers.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Camden County, FM-04-1637-02.
Ronald G. Lieberman argued the cause for
appellant (Adinolfi and Goldstein, P.A.,
attorneys; Mr. Lieberman, on the brief).
David C. Epler argued the cause for
respondent.
PER CURIAM
Defendant Cely J. Brody appeals from Family Part orders
dated June 30, 2009 and July 21, 2009, entered after a remand
from our earlier decision in Raevsky v. Brody, No. A-0377-07
(App. Div. Feb. 25, 2009). We affirm.
I
The factual background is detailed in our 2009 opinion and
need not be repeated here. To summarize, the parties divorced
in 2002, after a twenty-year marriage. Pursuant to their
property settlement agreement (PSA), plaintiff Alan Raevsky was
obligated to pay defendant $1667 per month in "rehabilitative
alimony," and $3780 per month as "spousal consideration,"
including child support, until July 15, 2006. Plaintiff agreed
to be solely responsible for "any and all college educational
expenses" for the parties' children, including housing expenses,
to the extent that he was able.
The PSA provided that defendant would remain in the marital
home, which the PSA valued at $190,000 at the time of the
agreement. The mortgage note, for which defendant assumed
responsibility, was approximately $61,800 when the PSA was
signed. Plaintiff was to receive a credit for approximately
$65,000, representing one-half of the value of the house after
deductions for the remaining mortgage note and hypothetical
realtor commissions. Plaintiff held a mortgage on the marital
home to secure the debt. Raevsky, supra, slip op.
In our opinion, we noted that "the amount of alimony was
more than the minimum defendant needed for support, because it
took into account the shorter duration of the obligation.
A-6148-08T1
2
Plaintiff likewise testified that the amount of alimony was
'difficult for me to swallow,' but he accepted it because he
Id. at 13.
knew it would end on a date certain."
Shortly before plaintiff's alimony obligation was scheduled
to end, defendant moved to vacate the PSA:
contending that it was the product of fraud
and overreaching, that its terms were
unconscionable, and that at the time the
agreement was negotiated she was under
psychiatric care and not capable of entering
In the alternative, she
into an agreement.
moved to convert her rehabilitative alimony
into permanent alimony, arguing that she was
incapable of supporting herself.
[Id. at 2.]
We remanded the case for reconsideration of whether
defendant was entitled to an extension of alimony based on her
alleged disability. In that context, we also directed the trial
court to determine the marital lifestyle during the marriage, as
a basis for determining the reasonableness of any alimony award.
We suggested that the court consider the budget documents the
parties had used in negotiating the PSA, as well as possible
additional testimony.
The parties negotiated for several months before the
scheduled remand hearing, and both sides indicated to the trial
judge that "the matter was virtually settled." However, after
speaking with another attorney about the propriety of the
A-6148-08T1
3
settlement, defendant informed plaintiff and the trial judge "on
the eve of trial" that she would not be settling and that she
wished to proceed.
The following evidence was presented at the remand hearing.
On September 6, 2007, after the initial trial, defendant applied
for disability benefits from the Social Security Administration
(SSA) based on several medical conditions. On August 30, 2008,
the SSA notified defendant that she was eligible for $743 in
monthly benefits.1 At the time of the trial in June 2009, she
had received an increase to $792 monthly after a Medicare
deduction. Because the SSA found her qualified to receive
benefits as of August 2006, defendant also received two
retroactive lump sum payments. However, defendant was "not
certain" of the amounts, indicating that one payment was between
three to five thousand dollars and the other was around five
thousand dollars. She "didn't know what happened" to another
$5000 in retroactive payments that she apparently received from
SSA. She provided no documentation as to how she spent the
retroactive payments.
1
It is unclear from the record why defendant failed to apprise
us, at the time of her initial appeal, that she had already
applied for and had begun receiving disability benefits. When
we rendered our prior opinion, the record presented to us
reflected that defendant had not yet applied for those benefits
and was not receiving them. See Raevsky, supra, slip op. at 40.
A-6148-08T1
4
Defendant received approximately $80,000 from the sale of
the marital home. She claimed she spent this amount repaying
loans for legal fees and repaying her mother for living
expenses. Additionally, she testified that she gave $10,000 of
the lump sum Social Security benefit to her mother for living
expenses. She testified that she spent the $72,600 that she
received from IRAs on the children and her "[l]iving expenses
that were not covered by the estimated budget."
Addressing the marital lifestyle, defendant testified that
during the marriage she regularly spent approximately $1000 per
month on clothing for herself, plus $1000 a month on the
children's clothing. She also stated that she purchased five
suits for plaintiff every year, which cost approximately $1000
each. Defendant stated that she and plaintiff went out to
dinner once a week, and that she and the children would dine out
twice per week. They did not frequently entertain in their
home. According to defendant, the couple spent over $25,000 on
their daughters' bat mitzvah celebrations. However, they did
not routinely buy expensive gifts for each other.
The marital home was purchased in 1985 for $107,000.
Approximately ten years later, new carpets and lighting were put
into the home, and the children got new furniture. However,
according to defendant, plaintiff's parents paid for some of the
A-6148-08T1
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improvements and furniture. The family occasionally took
vacations for a week or two to Ocean City, New Jersey or
Virginia Beach, and took one trip to Disney World for a week.
Additionally, plaintiff and defendant would take a vacation to
the Caribbean for five days every year.
With regard to her current expenses, defendant explained
that after the marital home was sold, she moved in with her
mother, who leases a townhouse in an adult community in
Voorhees. Defendant's Case Information Statement (CIS) listed
her rental payment as $2050 per month, but defendant admitted
that figure represented the total rental payment, not her share,
and that she was not actually paying rent. Defendant also
testified that her mother paid all of the maintenance expenses
and utility bills, as well as the lease on defendant's 2003
Acura automobile. She did not, however, produce a copy of the
house or automobile leases or any other documentation to
substantiate her housing expenses. Defendant testified that her
mother did not pay any of the couple's shelter or transportation
expenses during their marriage. On cross-examination, defendant
disputed the amounts in the budget form that the parties used to
negotiate their PSA, although she had agreed to them at the time
of the negotiations.
A-6148-08T1
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In his testimony, plaintiff explained in detail how the
parties arrived at the numbers used for the budget they used to
negotiate the PSA. Defendant's household expenses, with the
children, were calculated to be $3810 per month. With the
spousal consideration and rehabilitative alimony, plaintiff paid
an additional $103,950 above and beyond defendant's expenses
over the sixty-four months of alimony required by the PSA.
Plaintiff testified that he was also paying the college tuition
expenses for his daughters, totaling $2049 per month.
Plaintiff disputed defendant's characterization of their
spending habits during the marriage. He testified that
defendant did not spend anywhere close to $2000 a month on
clothing, nor did she buy him $1000 suits. He also testified
that most of the money for the daughters' bat mitzvah parties
came from his grandfather, and from gifts. He testified that
the family took very modest vacations, and his parents paid for
their daughter to take a trip that the couple would not have
been able to afford. His parents also paid for some of the
improvements to the marital home.
After the two-day remand hearing, the trial judge issued a
written opinion dated June 30, 2009, setting forth a detailed
analysis of the factors set forth in N.J.S.A. 2A:34-23b. The
court determined that the defendant's current expenses totaled
A-6148-08T1
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$1388 per month. Although defendant claimed a monthly budget of
$5035, she was not actually incurring most of those expenses.
Specifically, the court noted that defendant's mother paid the
$2050 monthly rental expense, which was "consistent with
defendant's trial testimony that the lease was in [her mother's]
name." Additionally, the court noted defendant did not provide
a copy of the rental agreement at the remand hearing to justify
the expense.
The court found that defendant's income was limited to the
$792 monthly Social Security disability benefit. Defendant filed
her SSA disability application on August 17, 2007, after the
June 26, 2007 trial decision. On or about August 20, 2008, the
SSA notified the defendant that she would receive benefits. The
court found "no basis to impute additional income to defendant
over and above her Social Security Disability benefit," because
plaintiff presented no evidence rebutting the defendant's prima
facie showing of her inability to work. (citing Golian v.
Golian,
344 N.J. Super. 337, 342-43 (App. Div. 2001)).2
The court found that plaintiff's monthly expenses were
$10,535, a "significant portion" of which was attributable to a
2
However, the court added that "plaintiff should not be
precluded from challenging the Social Security Disability
finding in a subsequent motion should he deem it appropriate."
A-6148-08T1
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$2049 monthly payment for college expenses for the parties'
youngest daughter. Plaintiff's CIS reported his gross earned
income for 2008 as $168,000, with a net income of $113,223. The
court noted that "for the time period leading up to the PSA,"
plaintiff's income averaged $130,000, which was "precisely the
income utilized in the budget . . . the parties prepared in
anticipation of their PSA."
Noting the "considerable disparity in the income of the
parties," the court concluded that "plaintiff would have enough
money to meet his monthly budget, but the defendant would fall
short even should the court reduce the defendant's budget per
month due to the fact that defendant's mother pays most of the
bills." However, the court found that defendant had failed to
disclose the "lump sum" she received or would receive from
Social Security.
The court concluded, "[i]n the absence of any evidence of a
clear and convincing nature that refutes the presumption that
defendant wife is unable to work, . . . the defendant wife does
exhibit a physical and/or mental impediment to engaging in full-
time gainful employment." Consequently, an award of permanent
alimony was appropriate.
Considering the standard of living established during the
marriage, the court concluded that "the pre-divorce lifestyle
A-6148-08T1
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had been quite modest and involved a constant struggle to make
ends meet." The judge noted that the marital "home was
essentially of the ilk of a middle-class subdivision," and that
the family occasionally took vacations which were not
"extravagant or extraordinary." No evidence demonstrated that
the family was able to amass substantial savings, "beyond an
otherwise normal and ordinary attempt to provide for
retirement." They did not have any "expensive hobbies" or
collections, and did not regularly dine at expensive
restaurants. The court described the testimony about the
marital life as "reveal[ing] nothing more than a classic middle-
class lifestyle."
The court did not find defendant to be a credible witness
on the financial issues that were key to his decision. The
court considered the budget used during the PSA negotiations to
be the "best evidence of the marital lifestyle that existed at
the time the parties separated," and was "persuaded that that
the parties' marital lifestyle, at about the time of separation,
is reflected in the numbers as set forth in the budget." The
court found that "defendant's attempts to challenge the accuracy
of those numbers . . . was not at all convincing. Defendant had
no corroborating proof that the numbers were low or otherwise
inaccurate." The court specifically rejected defendant's
A-6148-08T1
10
assertion that she spent over thirty thousand dollars a year on
the family's clothing during the marriage.
Relying on "the numbers as set forth in the budget," the
court found that "three thousand eight hundred ten dollars
($3810) per month is a fair approximation of the financial
marital lifestyle for defendant and the two children." However,
the court found that defendant does not currently incur any
financial obligation for her children. Neither child was living
with a parent, and plaintiff assumed the financial obligation
for the children's college expenses and provided their medical
benefits. Noting that the PSA provided child support to
defendant as part of an overall "spousal consideration" payment
of $3780 monthly, the court found that the child support
guidelines could reasonably have supported an allocation of $375
per week, leaving $2177.50 per month as actual spousal support.
The court determined that meeting defendant's needs as
currently listed in her CIS, with adjustments for the bills that
she listed but is not paying, would reasonably maintain her
marital lifestyle. In determining defendant's current needs,
the court found "defendant's expenses as set forth in her CIS
dated April 13, 2009 to be generally reasonable." "The court
note[d] that defendant's current budget reflects a spartan
lifestyle, but is nevertheless somewhat consistent with the no-
A-6148-08T1
11
frills lifestyle as portrayed in the budget figures computed for
purposes of the PSA." The court noted that the "transportation
costs in defendant's Schedule B would certainly seem
reasonable," in light of the lack of any evidence to support the
conclusion that her disability rendered her incapable of
driving.
In considering the previously ordered equitable
distribution, the court found:
[T]he defendant has failed to offer a
credible explanation as to whether she made
prudent use of assets from the equitable
distribution or rather unreasonably
dissipated same. The court is not persuaded
that defendant did make prudent use of the
assets stemming from the PSA. Plaintiff
should not be required to replace assets
given to defendant for her support but which
she unreasonably dissipated.
The depleted assets included $72,600 in IRAs that defendant
received, and funds generated by the sale of the marital home.
The court rejected defendant's testimony that she used those
funds to pay legal fees. The court also found that our prior
decision precluded defendant from challenging the equitable
distribution provisions of the PSA.
However, the court concluded that modification of the PSA's
support provisions was appropriate in light of defendant's
disability and her inability to engage in gainful employment.
He concluded that a permanent alimony award of $325 per week
A-6148-08T1
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($1387.50 monthly), "would be sufficient to permit defendant to
meet her budget (as adjusted and analyzed by the court above)
while taking into account the taxable nature of these alimony
payments." The court further noted that the alimony award and
defendant's disability benefit would give her a total monthly
income of $2189.50, which "closely approximates the PSA monthly
spousal support amount ($2177.50) once [$375 per week for] child
support is subtracted out."
The court declined to award the alimony retroactively, and
ordered plaintiff's obligation to be effective as of July 1,
2009. Citing the unique circumstances, given defendant's
initial failure to meet her burden to establish the parties'
marital lifestyle and show a change in circumstances, the court
determined the effective date pursuant to "equitable principles
and fairness to the parties."
The court declined to use the date of our 2009 decision
because the parties were then in a position to amicably resolve
the dispute, and "neither party should be penalized or rewarded
by the fact that ultimately additional hearing days were
required to reach resolution." The court found the effective
date of defendant's disability as determined by the SSA to be
"entirely inappropriate," citing a lack of evidence in the
record explaining how the SSA arrived at the date.
A-6148-08T1
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The trial judge issued an order on June 30, 2009: (1)
ordering plaintiff to pay $1397.50 per month in permanent
alimony beginning July 1, 2009; (2) refunding, with interest
"[a]ll overpayments made by plaintiff to defendant after July
15, 2006" from the monies held in escrow; (3) awarding defendant
$15,667 plus interest commencing March 9, 2009 as a "set off"
from the plaintiff's overpayments; (4) disbursing, with
interest, plaintiff's share of the proceeds from the sale of the
marital home; and (5) awarding any residuum from the monies in
escrow to defendant. Neither party was awarded attorney's fees.
Defendant filed a motion for reconsideration on July 20,
2009. In a letter to the parties date July 21, 2009, the judge
stated that his June 30, 2009 decision and order "adequately
addresses the issues raised during the remand hearing." The
judge issued an order that same day denying defendant's motion.
In response to a letter from defendant's counsel urging him
to reconsider his denial of the defendant's motion for
reconsideration, the judge issued a five page letter opinion
dated July 23, 2009, detailing his reasons for denying the
motion. Specifically, the judge noted that defendant's motion
for reconsideration raised, for the first time, the contention
that plaintiff should be required to maintain life insurance for
defendant's benefit. Similarly, defendant had not sought
A-6148-08T1
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attorney's fees during the remand hearing. Further, the judge
noted that defendant had not prevailed at the trial or appellate
level, but the case was remanded in anticipation of a future
support motion.
The judge reiterated that the effective date of plaintiff's
permanent alimony obligation represented a balancing between the
court's enforcement of the PSA, defendant's failure to sustain
her burden at the time of the initial trial and appellate
decisions, and defendant's current economic need. With regard
to defendant's assertions that the trial court erred in finding
that the child support guidelines could have supported a
determination of $375 per week, the judge noted that "an
appropriate Guidelines figure could well exceed $375 per week
for the two girls."
II
On this appeal defendant argues, among other things, that
she is entitled to a higher alimony award; that the judge should
not have commenced the permanent alimony on July 1, 2009 but
rather on an earlier date; and that plaintiff was not entitled
to repayment for alimony that he paid defendant between July 15,
2006, the date on which the PSA provided that alimony would
terminate, and April 30, 2008. Defendant presents the following
points for our consideration:
A-6148-08T1
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A. The Trial Court Abused Its Discretion
in Awarding an Amount of Permanent Alimony
Which Relegated the Dependent Spouse to a
Subsistence Existence.
B. The Trial Court Erred When it Failed to
Direct the Supporting Spouse to Have Life
Insurance in Place for the Benefit of the
Dependent Spouse as Protection for His
Permanent Alimony Obligation.
C. The Trial Court Erred in Commencing
Permanent Alimony to Defendant Seven Years
after the Parties' Divorce.
D. The Trial Court Erred in Creating Gaps
of Time Between Termination and Commencement
of Permanent Alimony.
E. The Trial Court Erred in Denying
Defendant's Request for Counsel Fees.
F. The Trial Court Erred in Refusing Oral
Argument On Defendant's Motion for
Reconsideration and Further Erred By Denying
Her Motion.
G. The Trial Court Erred in Providing Full
Retroactive Support Credits to Plaintiff
Without Providing Any Retroactive Support to
Defendant.
Having reviewed the record, we conclude that these points
are all without merit and, except as addressed herein, they do
2:11-
not warrant discussion in a written opinion. R.
3(e)(1)(E). We affirm substantially for the reasons stated by
the trial judge in his written opinions. We add the following
comments.
A-6148-08T1
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Our review of the trial judge's factual findings is
limited; if those findings are supported by sufficient credible
Cesare v. Cesare, 154
evidence, they will not be disturbed.
N.J. 394, 411-12 (1998). We defer to the credibility
determinations of the trial judge where, as here, the judge has
made specific credibility determinations after hearing extensive
See State v. Locurto,
157 N.J. 463, 470-74 (1999).
testimony.
And we owe particular deference to the Family Part because of
its expertise in matrimonial matters. Cesare, supra,
154 N.J.
at 412.
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 (App. Div. 2004), aff'd as modified, 183
N.J. 290 (2005).]
In determining an alimony award, the trial court must
consider the following statutory factors:
A-6148-08T1
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(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;
A-6148-08T1
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(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.
[N.J.S.A. 2A:34-23b.]
In the context of the remand, the trial judge appropriately
considered these factors and determined that defendant should
receive permanent alimony even though the parties had originally
agreed to term alimony. Following our 2009 opinion, the trial
court properly considered the resources defendant had already
received under the PSA, including support payments far in excess
of her alimony needs and substantial amounts of equitable
distribution.
In calculating the defendant's current needs, the judge
properly considered defendant's unreasonable depletion of assets
previously received. In determining whether and to what extent
a modification of a PSA is appropriate, the court may consider
whether any of the equitable distribution was intended to
provide for future needs. For example:
[A]lthough a spouse cannot maintain the
marital standard of living on the support
payments received, this would not ordinarily
warrant modification if it were shown that a
A-6148-08T1
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single large cash payment made at the time
of divorce was included with the express
intention of meeting the rising cost of
living. In other cases, the equitable
distribution award -- which we have
recognized is intimately related to support,
-- might have been devised to provide a
hedge against inflation.
[Lepis v. Lepis, 83 N.J. 139, 153 (1980)
(citation omitted.]
Moreover, in determining the extent of the defendant's
alimony benefit, the court may consider the "trade-off" that the
defendant bargained for and received in the PSA. As we have
recognized,
in exchange for receiving a larger share of
assets, a spouse may agree to limit either
the amount or the duration of alimony, or
both. Where such trade-offs are shown to
have occurred, this may be taken into
account along with all other circumstances
in determining whether an award of alimony
should be modified and, if so, to what
extent . . . .
[Shifman v. Shifman,
211 N.J. Super. 189,
195 (App. Div. 1986).]
Here, the PSA awarded the defendant a larger alimony payment
than she would have otherwise been entitled to for six years.
She received the full economic benefit of the PSA before filing
her modification application.
In addition to recognizing that plaintiff had "overpaid"
defendant approximately $104,000 in support, the trial judge
considered that defendant had no credible explanation for having
A-6148-08T1
20
spent the entirety of $72,000 in IRAs and $80,000 in proceeds
from the sale of the marital home. As the judge noted,
"defendant spent all of this money and presented herself in
court as essentially destitute, having no assets whatsoever."
In our 2009 opinion, we observed that "the parties understood
that plaintiff would provide defendant with assets beyond those
required as alimony, in exchange for a termination of his
alimony requirement after six years." Raevsky, supra, slip op.
at 38 (citing Miller v. Miller,
160 N.J. 408, 420 (1999)). See
also Lepis, supra,
83 N.J. at 153. Therefore, the judge's
consideration of the defendant's unreasonable depletion of her
assets when determining her current needs was not an abuse of
discretion.
Defendant's reliance on Glass v. Glass,
366 N.J. Super. 357
(App. Div.), certif. denied,
180 N.J. 354 (2004), is misplaced.
Unlike the defendant in Glass, who lived frugally in order to
save for her future needs, the defendant here provided no
credible explanation for depleting her share of the equitable
distribution and the excessive alimony payments she received for
six years.
Moreover, defendant grossly inflated her calculation of the
marital lifestyle, as well as her own post-divorce financial
needs. It was defendant's burden to establish changed
A-6148-08T1
21
circumstances justifying a departure from the terms of the PSA.
Lepis, supra,
83 N.J. at 157. We cannot fault the trial judge
for limiting the permanent alimony award to an amount supported
by the evidence he found credible. Further, given the financial
resources defendant received in the PSA, we find no abuse of
discretion in the judge's decision to make plaintiff's permanent
alimony obligation prospective rather than retroactive.
We likewise find no abuse of discretion in the judge's
refusal to address the issue of life insurance, because
defendant failed to raise that issue at the trial. Nor do we
find any basis to disturb the judge's discretionary decision not
to award counsel fees to either party.
Affirmed.
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