SAMUEL ROTHFELD v. JANE ROTHFELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0436-09T1

SAMUEL ROTHFELD,

Plaintiff-Respondent,

v.

JANE ROTHFELD,

Defendant-Appellant.

______________________________________________________________

Argued January 25, 2011 Decided August 29, 2011

Before Judges Carchman and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FM-14-00323-02.

Edward J. Gilhooly argued the cause for appellant.

Caryl Wolfson Leightman argued the cause for

respondent.

PER CURIAM

In this post-judgment matrimonial matter, defendant Jane Rothfeld appeals from an order dated August 6, 2009, denying her application to increase the amount and extend the term of her limited duration alimony, and to increase child support. For the reasons that follow, we affirm.

Defendant and plaintiff Samuel Rothfeld were married on October 21, 1995, and have two sons, ages fourteen and twelve.1 The parties were divorced on March 17, 2003, and their final judgment of divorce incorporated a property settlement agreement (the Agreement). Pursuant to the Agreement, defendant is designated as the parent of primary residence, and the parties share joint legal custody. Both parties are members of the New Jersey Bar, and plaintiff maintains an active private practice.

Paragraph 4.2 of the Agreement states that the parties "shall share any of [defendant's] work-related child care expenses for the children on a 80%/20% basis," with plaintiff paying 80% of the expense. The parties agreed to allocate the cost of the children's extracurricular activities and their "uncovered/unreimbursed health related expenses" in the same fashion.

With regard to alimony, the Agreement stated that plaintiff would "pay limited duration alimony to [defendant] in the amount of $500 per week for a period of four years effective April 1, 2003." The parties acknowledged in the Agreement that they were aware "of the New Jersey Supreme Court decision in Crews v. Crews, 164 N.J. 11 (2000)," and defendant represented she would "be able to continue the standard of living which she enjoyed during the course of the marriage as a result of her ability to earn income, the receipt of support from [plaintiff], as well as the assets she [was] receiving by way of equitable distribution."

With regard to child support, the agreement provided as follows:

Commencing on April 1, 2003, [plaintiff] agrees to pay child support directly to [defendant] in the sum of $500 per week, representing child support for both [Jonathan] and [Martin] until a child(ren) is emancipated. Said child support is in excess of the level of support required by the Child Support Guidelines in recognition of the total support amount being paid by [plaintiff] including alimony.

In March 2007, defendant filed a motion to increase the amount and extend the term of the limited duration alimony, and to increase child support. In a supporting certification, defendant stated that Jonathan had been diagnosed with multiple disabilities, including "Obsessive-Compulsive Disorder, Attention Deficit/Hyperactivity Disorder and Asperger's Disorder." Defendant also certified that she was unable "to acquire gainful employment" because "caring for Jonathan [had] become a full-time job." Plaintiff opposed the application, arguing that the Agreement was fair and reasonable and that defendant had not sufficiently demonstrated an inability to work part-time. The trial court denied defendant's motion without oral argument on May 4, 2007.

Defendant appealed and, in an unpublished opinion, we reversed and remanded for an evidentiary hearing. Rothfeld v. Rothfeld, No. A-5105-06 (App. Div. Nov. 3, 2008). In our prior opinion, we noted that defendant's "proofs with respect to her efforts to find employment were slim, at best." Id. at 17. Nevertheless, we found there was sufficient support in the record to warrant an evidentiary hearing:

First, we believe that [defendant] has made a sufficient prima facie showing that Jonathan's current mental-health condition was not anticipated at the time of the divorce. Although it appears that, at the time the PSA was being negotiated, there was some manifestation of behavioral problems at school, which were attributed to the possibility of attention-deficit disorder, his later diagnoses of Asperger's disorder and bipolar disorder presented significantly more serious disorders with potentially greater impact on Jonathan's life, as well as [defendant's] as his parent of primary residence. It is by no means clear on the record before us that either parent anticipated that Jonathan would not be able to continue in the public school system or that [defendant] would be required to be as available for intervention during working hours when problems arose at school. While the nature of that impact may be a matter of proof, it is an issue not appropriately decided on the papers and without oral argument.

Second, although [Gordon v. Rozenwald, 380 N.J. Super. 55 (App. Div. 2005)] holds that the basis for the length of the term of limited duration alimony is "primarily historical not predictive," 380 N.J. Super. at 68 (emphasis added), it is by no means clear that such was the case here. [Defendant] certified that the parties assumed she would be able to obtain per diem legal work, which strongly suggests the presence of "predictive" considerations in connection with the length of the term. . . .

The Family Part will need to determine the extent to which there was a "predictive" element in the choice of the termination date. That finding will inform, but not necessarily determine, its analysis of all of the relevant facts in deciding whether this case presents the type of "unusual circumstances" that warrant an extension of limited duration alimony pursuant to N.J.S.A. 2A:34-23(c). The trial court will also need to determine whether any increase in the amount of alimony is warranted.

[Id. at 15-17 (footnote omitted).]

The remand hearing was held on five days between April 20, 2009, and June 11, 2009, and the court rendered a comprehensive written decision on August 6, 2009. The court found that Jonathan's needs were "great" and that defendant's "love and commitment to him [were] impressive," but it concluded that defendant failed to establish she was entitled to an extension or increase in alimony or an increase in child support:

The Court concludes that limited duration alimony, rather than rehabilitative alimony, was agreed upon by the parties because there is no evidence that the defendant would require retraining before returning to the workforce. The defendant not only possesses a college degree, she also has a law degree and practiced workers' compensation law for four years.

. . . .

Clearly, there has been a significant change that was not anticipated at the time of the divorce. . . . However, reviewing the evidence and testimony submitted by both parties, this Court concludes that the defendant has failed to demonstrate [that] "unusual circumstances" have impaired her ability to support herself, and does not provide sufficient evidence to support her request. Specifically, she fails to show the impact of child care responsibilities on her earning capacity.

Notably missing from the defendant's proofs in support of her motion is any proof that the defendant has attempted to find employment. [Jonathan] is in school from nine until 2:30 pm everyday. Defendant has not proven why she cannot work during the hours [Jonathan] is in school, or why someone other than the defendant cannot take care of [Jonathan] when he gets home from school. The court concludes that the evidence presented by the defendant does not support her claim that taking care of [Jonathan's] needs prevents her from finding employment as a workers' compensation attorney.

[Jonathan] is in a special private school for children with his disability funded by his school district. Although defendant testified she had to be constantly available in case she was needed during the school day, the fact is that she was rarely called. Both the plaintiff and one of his contract attorneys testified that Workers' Compensation attorneys can complete their cases in court routinely by the time [Jonathan] returns home. Although both witnesses cannot be said to be neutral, no evidence contradicted their testimony.

On appeal, defendant presents the following argument:

THE TRIAL JUDGE MISAPPLIED THE LEGAL PRINCIPLES ON THE REMAND ISSUES - THE REMAND HEARING WAS UNFAIRLY PREDICATED UPON JANE ROTHFELD PROVING SHE MADE A DETERMINED EFFORT TO FIND WORK AS A PART-TIME WORKERS' COMPENSATION LAWYER WHEN PREDICTIVE ASPECTS OF THE AGREEMENT WERE FRUSTRATED BY A SERIOUS INTERVENING EVENT.

Based on our review of the record and the applicable legal principles, we are satisfied this argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(A) and (E). Nevertheless, we add the following comments.

"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, supra, 380 N.J. Super. at 65-66 (alteration in original) (quoting Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000)). Unlike rehabilitative or reimbursement alimony, "[l]imited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole." Cox, supra, 335 N.J. Super. at 476. Instead, limited duration alimony is appropriate in a case such as this where a spouse with the skill and education to pursue a legal career has devoted herself to a short-term marriage rather than her career. Id. at 483.

In the present matter, the remand court made detailed findings and concluded that defendant was not entitled to the relief she requested. Based on our examination of the record, we are satisfied that the court's findings are "supported by adequate, substantial, credible evidence," Cesare v. Cesare, 154 N.J. 394, 412 (1998), and that it correctly applied the controlling legal principles. We therefore affirm substantially for the reasons stated by Judge Stephan Hansbury on August 6, 2009.

1 We will use fictitious names when referring to the children.