KATHLEEN TROY v. THOMAS TROY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4947-09T2

KATHLEEN TROY,

Plaintiff-Appellant/

Cross-Respondent,

v.

THOMAS TROY,

Defendant-Respondent/

Cross-Appellant.

_______________________________

April 10, 2012

 

Argued November 2, 2011 - Decided

 

Before Judges Lihotz, Waugh and St. John.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1449-09.

 

Emery Z. Toth argued the cause for appellant/cross-respondent (Emery Z. Toth, attorney; Mr. Toth and Chad Weiss, on the brief).

 

Jennifer R. Rubin argued the cause for respondent/cross-appellant(Pellettieri, Rabstein & Altman, attorneys; John A. Hartmann, III, of counsel and on the brief; Ms. Rubin, on the brief).

 

PER CURIUM

In this matrimonial matter, plaintiff Kathleen Troy appeals from provisions in a May 7, 2010 Dual Final Judgment of Divorce (JOD), challenging the trial court's award of alimony and denial of her request for counsel fees. Defendant Thomas Troy filed a cross-appeal also challenging the amount of awarded alimony. Following our review of the arguments presented on appeal, in light of the record and applicable law, we affirm.

In January 2009, following over twenty-one years of marriage, plaintiff filed a complaint and defendant filed a counterclaim seeking divorce. The parties have one child who will be nineteen shortly.

During the ten-day bench trial, the parties presented proofs supporting their respective requests for dissolution of the marriage and the attendant collateral issues. This appeal, however, is limited to their respective challenges to the amount of support paid to plaintiff in the form of alimony and counsel fees. Consequently, our factual recitation will be limited to these challenges, which requires analysis of the parties' incomes, earning potential, and marital lifestyle.

Plaintiff, who is now age sixty-two, is a high school graduate with limited college coursework, who was employed from 1987 to 1994 as a sales associate and then a real estate agent. She ceased outside employment to provide care for the parties' child. During trial, both parties presented expert testimony on the level of income to be imputed to plaintiff. After considering all of the evidence, the trial judge found plaintiff could earn $21,000 per year.

Defendant, now age fifty-five, worked for Sharbell Development Corporation (Sharbell), which is involved in the purchase and development of land for residential housing. Sharbell is owned by Glenside Holding (Glenside), an off-shore entity located in England, which is equally owned by Hanan Kalish, of Israel, and Christopher Weatherhill, of Bermuda.

Defendant began his employment with Sharbell as a construction manager in 1986. By 2002, he was named Sharbell's Senior Vice President. A related entity, Hawthorne Inc. (Hawthorne), was formed on March 19, 1997. Hawthorne, a Sub-Chapter S corporation, provided "day-to-day management of the operating aspects of Sharbell and its subsidiary companies." Initially, Kalish owned 100% of Hawthorne. Defendant was a Hawthorne director and, as of May 23, 1997, Hawthorne's Senior Vice President. Hawthorne's services were limited to two contracts: one with a Dutch company and the other with Sharbell. At the time of trial, under the terms of their service contract, Sharbell paid Hawthorne $50,000 per month.

In 2002, defendant entered into a Shareholder Agreement (Agreement) to become a minority owner of Hawthorne. The Agreement allocated Hawthorne's stock: twenty-eight percent to defendant and seventy-two percent to Kalish. Defendant's compensation from Hawthorne was $70,000 per year plus his percentage of distributable income, amounting to $38,000 every two months. His total income from Sharbell and Hawthorne was approximately $300,000 per year, plus a monthly car allowance.

On May 23, 2002, amendments were drafted to the Sharbell-Hawthorne service contract, adding contractual "milestone" payments awarded upon completion of stages of a 900-unit residential housing project, which included single and multi-family units along with retail stores and professional office space in Robbinsville (the Robbinsville project). There were a series of five amendments executed, each providing for a milestone payment from Sharbell to Hawthorne once specified units of the Robbinsville project closed. Defendant, as a twenty-eight percent owner of Hawthorne, received his share of these milestone payments between 2006 and 2008.

The parties' joint income tax returns reported defendant's income as: $599,3351 in 2004; $592,594 in 2005; $753,406 in 2006; $999,715 in 2007; $594,181 in 2008 and $330,000 in 2009. It is agreed that the increases resulting from the milestone payments received during these years, were: $270,049 in 2004; $269,794 in 2005, $411,604 in 2006; $415,472 in 2007; $280,490 in 2008 and $5,071 in 2009. Also, defendant's 2007 income included profits from the one-time sale of a liquor license.

Plaintiff argued defendant's decrease in income in 2009 was purposely designed to affect her alimony claim. She alleged defendant, as the de facto head of Hawthorne, controlled day-to-day operations and made all business decisions, including whether to make distributions and the level of his salary. Defendant disputed these claims, and advocated the court must use his $330,000 salary when determining alimony because no outstanding or contemplated milestone agreements remained.

Judge Andrea G. Carter "recognize[d] the decline in the economy and [its] effect on . . . real estate development[.]" However, she found "the decrease in the milestone[s] [were] notably significant and somewhat suspect." The judge computed the average annual additional income above defendant's salary for the years 2004, 2005, and 2008 as $273,444. She excluded the increases above salary defendant received in 2006 and 2007 because the sums "appear[ed] to be out of the ordinary."2 The judge then added this sum to defendant's annual $300,000 salary, obtaining $573,444, which was used as defendant's income for the purpose of calculating his support obligations.

Defendant characterized the marital lifestyle as "fairly modest." He and his expert opined on plaintiff's needs. Plaintiff disagreed and characterized the marital lifestyle as "lavish." Her expert also related an opinion on the marital lifestyle and plaintiff's monthly needs.

Plaintiff submitted an initial case information statement (CIS) claiming the monthly expenses for her and the parties' child were $22,498. During trial, plaintiff filed an amended CIS reporting her current and projected monthly expenses as $15,078 per month.

The trial judge found the parties' positions unreasonable. She rejected defendant's expert because "the methods utilized . . . to reduce [plaintiff's] monthly budget . . . did not adequately account for and/or reflect the marital lifestyle[,]" and rejected plaintiff's proposed budget because it included "items that appeared to be inflated or not a part of the marital lifestyle[.]" In fixing plaintiff's "reasonable [monthly] budget [at] $8,495.83 or $8,500[,]" the judge evaluated the evidence presented, reducing certain items because they were found duplicative or inflated, and eliminating items attributed solely to the parties' child.

In her opinion, the trial judge summarized her findings relative to the marital lifestyle, stating:

They lived in a large single family home in Plainsboro . . . . The home sits on over an acre of land. The home includes five bedrooms, three and a half baths, a fireplace, a finished basement, a patio and other amenities.

 

The plaintiff drove a Mercedes, a Land Rover Discovery for a period of time, and is now driving a leased Toyota Land Cruiser.

The family vacationed frequently. They vacationed in the Bahamas, Long Beach Island, Disney World, Mexico, Canada, Lake Tahoe, Rhode Island, Ocean City and Bar Harbor, Maine. The plaintiff and the minor child also took an occasional cruise.

 

The plaintiff shopped at places like Bloomingdale's, Nordstrom's, Lord & Taylor, Macy's, Ann Taylor, The Gap, certain specialty stores, Wegmans and Whole Foods. They entertained frequently at their home. They lived comfortably and relatively debt free.

 

She concluded the parties enjoyed a "high-middle class lifestyle." Then, tracking the statutory factors of N.J.S.A. 2A:34-23b,3 Judger Carter made findings to support her conclusion that plaintiff successfully proved her claim for permanent alimony. After deducting plaintiff's net imputed income, the trial judge calculated plaintiff's remaining need as $7022 per month, which was awarded. The trial judge also calculated child support as $402 per week or $1729 per month. Defendant was ordered to pay these sums to plaintiff and disclose his tax returns for five years, to allow plaintiff to monitor possible increases in his income.

Judger Carter considered plaintiff's request for legal fees. She ordered plaintiff to pay $1,337.50 towards defendant's counsel fees because plaintiff and her attorney failed to appear for a scheduled Early Settlement Panel (ESP) appearance on July 7, 2009. Otherwise, the parties were responsible to pay their respective counsel fees and expert costs.

On appeal, plaintiff argues the trial court erred in its calculation of defendant's average income, failed to properly compute the marital lifestyle resulting in an alimony award that was too low, and abused her discretion in denying plaintiff's request for counsel fees and costs.

Defendant offers no legal or factual support for his contention of error in the calculation of his earnings. Consequently, the cross-appeal is dismissed. We consider plaintiff's arguments.

Generally, our review of a trial judge's factfinding is limited; such findings will be binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Family Part factfinding receives particular deference because of "the family courts' special jurisdiction and expertise in family matters[.]" Id. at 413. Moreover, "'substantial weight'" must be given to the trial judge's "observations of the parties' 'demeanor, comprehension and speech' when they appeared before the court," Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (quoting Barrie v. Barrie, 154 N.J. Super. 301, 307 (App. Div. 1977), certif. denied, 75 N.J. 601 (1978)), recognizing that "'[t]he trial judge ha[s] the distinct advantage of observing the demeanor of the witnesses and a better opportunity to judge of their credibility than a reviewing court.'" Ibid. (alterations in original) (quoting Friedman v. Friedman, 37 N.J. Super. 52, 57 (App. Div.), certif. denied, 20 N.J. 135 (1955)). Only upon a showing that the trial court's conclusions are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence'" will we intervene to ensure there is not a denial of justice. Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The discrete issues challenged in the cross-appeals, that is, the calculation of an alimony award and the award of counsel fees and costs, manifest a claim of abuse of the trial court's exercise of discretionary authority. In that regard, these additional principles apply.

The family court is given broad discretion in awarding alimony, and an alimony determination will not be disturbed absent an abuse of that reasoned discretion. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified on other grounds, 183 N.J. 290 (2005). "Of course, the exercise of this discretion is not limitless[,]" and remains guided by the thirteen specific criteria to be considered in fixing alimony set forth in N.J.S.A. 2A:34-23b, itemizing the "objective standards which frame the exercise of the court's discretion." Steneken, supra, 367 N.J. Super. at 434.

Similarly, "[w]e will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

In her attack of the alimony calculation, plaintiff argues the defendant's actual income from the five years preceding the filing of the complaint for divorce should have been averaged and the exclusion of his two highest years' earnings contravened the requirements stated in Platt, supra, 384 N.J. Super. at 426-27. Further, she asserts the court inadequately stated the necessary factual findings when determining plaintiff's needs and defendant's ability to pay. As a consequence of this error, she requests we vacate that portion of the judgment and remand for the recalculation of her alimony award. We reject each of these contentions.

In reaching "the goal of a proper alimony award . . . 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[,]" Crews v. Crews, 164 N.J. 11, 16 (2000), each party's income or earning ability must be examined. See Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.) (noting that earning capacity or prospective earnings are proper elements for the court's consideration when determining the amount of alimony to be paid), certif. denied, 81 N.J. 52 (1979).

The use of averaging to fix a party's income for support calculation purposes is commonly accepted and used when substantial variations in income occur year to year. In Platt, the husband was a seventy-percent owner and sole operator of an automotive repair shop. Supra, 384 N.J. Super.at 421-22. He "determined the salary he would be paid each year[,]" which was subject to annual fluctuations. Id.at 422. Adhering to "the bedrock proposition that all alimony awards . . . must . . . satisfy basic concepts of fairness[,]" Steneken, supra, 183 N.J. at 298, we found it was reasonable for the trial judge to average the husband's income over a five-year period, including the two most recent years following the filing of the divorce complaint. Platt, supra, 384 N.J. Super.at 426. This result was driven by the fact that the husband "chose to drastically reduce" his income even though his business was "doing well financially." Id.at 426-27.

The Supreme Court has also adopted income averaging principles when analyzing sporadic or fluctuating income of a parent when determining child support. Use of the Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2521(2012) (stating "[i]f income from any source is sporadic or fluctuated from year-to-year . . . gross income shall be determined by averaging the amount of income over the previous 36 months") (emphasis removed). This recognition aims at achieving an award that fairly accounts for the highs and lows inherent in seasonal work, commissions, royalties and the like. Ibid.

In this case, plaintiff does not challenge the application of income averaging to compute defendant's income, rather she believes its implementation requires use of all income received over a consecutive five-year period. We disagree with plaintiff's assertion that the use of a five-year period for income averaging in Plattmust be employed here. Noting that "[e]very case turns on its own facts," Barr v. Barr, 418 N.J. Super.18, 44 (App. Div. 2011), we conclude the methodology employed by the trial judge to fix defendant's income was an appropriate adaptation of the income averaging tool warranted by the facts presented.

Here, Judge Carter properly observed that although defendant was not the sole owner of his employer, he held an ownership interest, was responsible for the day-to-day management decisions of the business operation, and had some influence on milestone contract awards. However, unlike Platt, the evidence did not show defendant alone set his salary or that he had manipulated his earnings. Defendant's employment carried no guarantee of annual milestone income and plaintiff offered no evidence to dispute proffers that the milestone payments concluded and no new agreements were executed or contemplated.

The trial judge's analysis considered the substantial variations in defendant's income, as well as the nature and source of each year's earnings, including the milestone payments and capital gain income. She rejected not only the aberrational income increases in 2007 and 2008 at the height of the Robbinsville project, but also the limited receipts in 2009, the year the divorce complaint was filed, finding it "out of the ordinary." Judge Carter's determination that a true measure of defendant's incomewarranted the inclusion and averaging of some, but not all of the past five years, was "completely logical and reasonable" in light of the facts and circumstances presented. Platt, supra, 384 N.J. Super.at 426.

We reject as unfounded plaintiff's assertion that the factual underpinnings for the court's findings were not properly set forth. R.2:11-3(e)(1)(E). The trial judge's bench opinion augmented by the provisions of the JOD clearly elucidates the rationale for excluding defendant's earnings from 2007 and 2008 because they would unfairly skew the income calculation. The use of only three non-consecutive years of income was properly explained as being more representative of defendant's earning ability because of the sources of income in the two excluded years, the inclusion of which would result in an unfair portrayal of defendant's earning capacity. The trial court's opinion was rational and reasonable and properly allows our meaningful review. See Strahan, supra, 402 N.J. Super. at 310. We also note additional protection for plaintiff was provided by future income disclosure requirements imposed upon defendant. In this way, plaintiff may discern increases in defendant's earnings, which may warrant modification to the support award.

We conclude the approach employed was sound and designed to achieve equity and fairness to both parties when "determin[ing] an amount of alimony . . . that is fit, reasonable and just." N.J.S.A. 2A:34-23g. We find no abuse of discretion.

Turning to plaintiff's actual needs, plaintiff argues the court's factual analysis was incorrect and suggests the court's award of $7022 per month "make[s] it virtually impossible for her to maintain the lifestyle she enjoyed during the course of the parties' marriage." We are not persuaded.

Other than a general claim that the court's award was too low and must be increased by $15,000 per year, plaintiff offers no specific challenge to the court's findings supporting its conclusion. The trial proofs resulted in the court's finding the parties enjoyed a "high-middle class lifestyle." We do not consider the annualized alimony award of $84,264 "relatively diminutive," as plaintiff suggests. Further, when adding the imputed income of $21,000 and defendant's child support obligation of $20,904 plus costs for medical expenses, counseling, education costs, and insurance expenses, we conclude she can afford her computed needs found by the trial court of $8500 per month.

Any award of equitable distribution must also be considered when fixing alimony. N.J.S.A. 2A:34-23b(10). Here, plaintiff was awarded significant assets, including half interest in the marital home, $253,176.50 in liquid assets, personal property and her equitable share of retirement assets.4

We determine the alimony award was fully supported by substantial credible testimonial evidence found in the record as a whole. Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998). Accordingly, we discern no basis to interfere with the trial court's determination. Steneken, supra, 367 N.J. Super. at 434.

Finally, plaintiff argues that the court abused its discretion in failing to award her counsel fees and costs. We disagree.

A request for a counsel fee award in a Family Part action is governed by Rule 5:3-5(c). See Gotlib v. Gotlib, 399 N.J. Super. 295, 314 (App. Div. 2008) ("Rule 4:42-9(a)(1) authorizes the award of counsel fees in a family action on a final determination pursuant to R[ule] 5:3-5(c)."). See also N.J.S.A. 2A:34-23; Strahan, supra, 402 N.J. Super. at 316-17. In making a discretionary determination whether to award fees, Rule 5:3-5(c) provides:

Subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discre tion may make an allowance, . . . on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for divorce, . . . support, alimony, custody, parenting time, equitable distribution, . . . . In determining the amount of the fee award, the court should consider, in addi tion to the information required to be sub mitted pursuant to R. 4:42-9, the following factors: (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 reason ableness and good faith of the positions advanced by the parties . . . ; (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 discov ery; and (9) any other factor bearing on the fairness of an award.

 

The trial judge faithfully applied these factors. After weighing the applicable findings, she concluded the parties had proceeded in good faith, except for plaintiff's failure to appear at ESP, and each party had sufficient ability to satisfy his or her attorney fee obligations. Plaintiff's bald assertion that the factors weigh in her favor "necessitating a counsel fee award" offers no analysis of how the trial court's assessment went wide of the mark. Accordingly, we defer to the judge's discretion with respect to this issue.

Defendant filed a motion seeking to strike portions of plaintiff's letter reply brief suggesting it included evidence not considered by the trial court. Essentially, plaintiff discussed the events surrounding the parties' agreement reached during CASP and set forth the terms of a consensual amendment to the JOD regarding equitable distribution. Based on our review, we deny both the motion to strike and the request for sanctions.

The provisions of the JOD are affirmed. Defendant's cross-appeal is dismissed.

1 Plaintiff asserts the total income for this year was $605,728. We have used the amount stated in the trial judge's findings.

2 The court also excluded 2009 income, defendant's lowest year, when averaging defendant's earnings because the divorce complaint was filed in that year.

3 N.J.S.A. 2A:34-23(b) requires a court consider:

(1) The actual need and ability of the parties to pay;

 

(2) The duration of the marriage. . . ;

 

(3) The age, physical and emotional health of the parties;

 

(4) The standard of living established in the marriage . . . 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 . . . ;

 

(9) The history of the financial or non-financial contributions to the marriage . . . 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 . . . ;

 

(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 . . . ; and

 

(13) Any other factors which the court may deem relevant.

4 The parties participated in the Civil Appeals Settlement Program (CASP) resulting in a limited remand allowing the trial court to enter a consent order modifying equitable distribution. The consent order permitted plaintiff to retain the marital home rather than requiring its sale, and defendant's interest in the home would be offset by $298,000 of her equitable distribution interest in other assets. On November 1, 2010, the trial court entered the consent order modifying provisions within the JOD to effectuate the parties' agreement.