NANCY R. GENTILE v. PIETRO GENTILE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3150-11T2

NANCY R. GENTILE,

Plaintiff-Respondent,

v.

PIETRO GENTILE,

Defendant-Appellant.

_______________________________________

March 14, 2013

Submitted February 26, 2013 Decided

Before Judges Yannotti and Hayden.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1566-10.

Fontanella Benevento Galluccio & Smith, attorneys for appellant (Laurence Desind, on the brief).

Forster & Arbore, attorneys for respondent (Lawrence D. Forster, on the brief).

PER CURIAM

Defendant appeals from and challenges certain provisions of the final judgment of divorce entered in this matter on January 30, 2012. We affirm.

I.

The parties were married on August 17, 1991. Two children were born of the marriage, one in 1993 and the other in 1999. The parties separated in 2008, and plaintiff filed her complaint for divorce on June 10, 2010. A trial in the matter was conducted on several disputed issues.

Thereafter, the trial judge filed a written opinion in which he determined that: (1) the parties would have joint legal custody of the children; (2) defendant must pay plaintiff child support in the amount of $217 per week; (3) defendant must pay plaintiff permanent alimony in the amount of $500 per week; (4) defendant's annuity shall be divided equally between the parties and defendant's share paid to plaintiff for child support and alimony arrears, counsel fees, and other obligations; and (4) defendant must pay plaintiff's attorney's fees and costs in the amount of $15,782.45. The judge entered a final judgment of divorce memorializing its decisions. This appeal followed.

II.

Defendant argues that the trial judge erred by awarding plaintiff permanent alimony of $500 per week. Defendant contends that the judge failed to acknowledge the present economic downturn and its impact upon his earning capacity, imputed too much income to him, failed to impute sufficient income to plaintiff, and did not appropriately assess his lifestyle needs. We disagree with these arguments.

"The scope of appellate review of a trial court's fact-finding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). The trial court's findings of fact are binding on appeal if they are supported by sufficient, substantial credible evidence. Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).

Furthermore, our deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Deference to the Family Part's fact findings is also warranted because of that court's special jurisdiction and expertise in family matters. Id. at 413.

At the trial of this matter, defendant testified that he is a tile installer and obtains work through a union. Before March 2010, defendant worked seven hours per day, five days per week, and earned forty-seven dollars per hour. Before 2009, defendant also worked overtime and earned an additional $300 to $500 each week.

In 2007, defendant earned $93,827 and received $2,274 in unemployment benefits. In 2008, defendant earned $90,557 and collected $1,317 in unemployment benefits. In 2009, defendant earned $75,354. Between January 1, 2010, and March 17, 2010, defendant's earnings were $23,720.62. Defendant testified that after March 17, 2010, he could not find work as a tile installer and he collected unemployment benefits.

However, in October 2011, defendant secured two jobs through his union. On the first job, defendant worked twenty-four hours and earned forty-seven dollars per hour. The second job was ongoing when the trial continued on October 31, 2011. In that job, defendant was working five days per week and earning forty-seven dollars an hour. Defendant testified that he believed opportunities for work were improving in the tile installation field.

During the marriage, plaintiff had worked from time to time. She had her own businesses, selling jewelry, then handbags, and then kitchenware. In 2007, plaintiff began working as a receptionist in a beauty salon on a part-time basis. She was paid in cash, and her income was not reported on the parties' joint tax returns. Plaintiff was still working at the salon when the matter was tried, and she had been reporting her income since the parties became involved in litigation.

In his opinion, the trial judge found that both parties were underemployed. The judge imputed annual income of $100,000 to defendant, and $20,800 to plaintiff. The judge found that defendant's testimony that he had been out of work from March 2010 to October 2011 was "incredible and unbelievable." Based on defendant's manner and demeanor throughout the trial, the judge found that defendant was "intentionally unemployed to avoid" his financial obligations to plaintiff and the children.

The judge stated that defendant had "developed a pattern of deception throughout his marriage which was evident throughout the trial." The judge said that defendant was "a conniver and manipulator." The judge found that defendant was capable of earning nearly $100,000 per year "on the books," noting that this level of income was consistent with the parties' marital lifestyle and what the judge called defendant's "exceptional work ethic and tenacity."

Defendant contends that the trial judge should have taken notice of the recent, severe economic conditions, which he claims have had a substantial impact on his ability to work as a tile installer. He asserts that the judge erred by relying on his gross earnings in 2008 and 2009, when "the construction industry was happily humming along[.]" He also says that his actual wages in 2009 were $75,354. Defendant contends that the judge should have imputed no more than $83,000 a year to him, and should have imputed at least $34,000 to plaintiff.

In addition, defendant contends that the judge erred by finding that his monthly budget was $2,000 per month. Defendant submitted what he calls "an exceedingly modest budget" of $3,405 per month. He argues that the judge erred by finding his expenses were "dramatically inflated." He says the judge should not have eliminated the rent he allegedly paid to his brother with whom he was living at the time of the trial.

It is well established that the court may impute income to a party when that party, without just cause, is voluntarily unemployed or underemployed. Larrison v. Larrison, 392 N.J. Super. 1, 19 (App. Div. 2007) (citing Caplan v. Caplan, 182 N.J. 250, 268 (2005)). In determining the amount of income to impute to a party, the court considers the party's potential employment and earning capacity, based on that individual's "work history, occupational qualifications, educational background, and prevailing job opportunities in the region." Child Support Guidelines, Pressler & Veniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2551 (2013).

We are satisfied that the trial judge properly considered these factors in arriving at the amounts of income to impute to the parties, and there is sufficient credible evidence in the record to support the judge's factual findings. The imputation of income of $100,000 per year to defendant was based on his history of earnings and earnings capacity. Furthermore, defendant provided no factual basis to impute more than $20,800 per year to plaintiff. In addition, the judge's assessment of defendant's monthly budget was based on the record and the court's evaluation of defendant's credibility.

III.

Defendant further argues that the trial judge erred by awarding plaintiff permanent alimony. He maintains the judge should have awarded plaintiff a combination of permanent and rehabilitative alimony or, alternatively, limited duration alimony. Again, we disagree.

In a matrimonial action, the trial court "may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party." N.J.S.A. 2A:34-23(b). In doing so, the court must consider the following:

(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, 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 . . . 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 payments on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(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.

[Ibid.]

Here, the trial judge considered the relevant factors under N.J.S.A. 2A:34-23(b) and concluded that plaintiff should be awarded permanent alimony in the amount of $500. We are satisfied that the evidence presented at trial supports the judge's determination.

In his opinion, the judge noted that the parties had a nineteen-year marriage, which was initially fruitful but later became troubled. The parties had a home in Randolph, but they sold that home and moved to a smaller residence in Sparta. The parties lived in Sparta several years and, during that time, separated occasionally.

The parties sold the Sparta residence, divided the proceeds of the sale equally and moved to a rented home. Defendant later moved to Rutherford and now resides with his brother in Garfield. As noted previously, the judge found that defendant was capable of earning $100,000 per year, and plaintiff was capable of earning $20,800 per year.

The judge found that plaintiff required alimony to maintain the modest, middle-class lifestyle that the parties had enjoyed during the marriage. The judge noted that, while they were married, the parties had no extra money for extravagant purchases or vacations. They did not have any significant savings and investments.

The judge additionally noted that the only marital asset remaining for distribution was defendant's retirement annuity. The Sparta home had been sold and the net proceeds divided. The parties had used their respective shares of the sales proceeds to pay marital debts owed to family members. The judge also considered the tax treatment of the sales proceeds in his analysis.

Defendant contends that the judge erred by awarding plaintiff permanent alimony. He argues that, although the parties were married nineteen years, they had separated in 2005 and there were unsuccessful attempts at reconciliation. Defendant contends that "a more balanced and nuanced approach" would have led the court to determination that this was "a functioning marriage" for only fourteen or fifteen years.

Defendant additionally contends that the judge failed to give sufficient weight to plaintiff's earning capacity. He maintains that plaintiff has the ability to work on a full-time basis. In addition, defendant contends that, in view of plaintiff's willingness to increase her employment to full-time work, the court should have considered a combination of permanent and rehabilitative alimony. Defendant says that a certain portion of the alimony award should have been deemed rehabilitative for a short time, to afford plaintiff time to secure full-time employment, after which this portion of the award would terminate.

We find no merit in these arguments. We are convinced that the record supports the judge's award of permanent alimony to plaintiff in the amount of $500. The judge properly weighed the relevant factors under N.J.S.A. 2A:34-23(b). The record indicates that the parties did, in fact, have a nineteen-year marriage, during which plaintiff worked intermittently and defendant was the principal provider for the family. The court also considered the parties' earnings capacities and the other relevant factors and reasonably found plaintiff required alimony to maintain the lifestyle the parties enjoyed during the marriage. We are satisfied that the court did not abuse its discretion by awarding plaintiff permanent alimony of $500 per week.

IV.

We turn to defendant's contention that the trial judge erroneously applied his share of the annuity to pay certain amounts due to plaintiff. Again, we disagree.

The scope of our review of a trial court's equitable distribution of marital property is strictly limited. Genovese v. Genovese, 392 N.J. Super. 215, 222 (App. Div. 2007). We determine whether the court's decision is supported by sufficient credible evidence in the record and whether the decision represents a proper exercise of the court's broad authority to divide the parties' property. Ibid. (citing Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968); Valentino v. Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998)).

Here, the trial judge found that the amount of defendant's annuity was $106,733.56. The judge divided the annuity equally between the parties, and determined that defendant must apply his monies to pay plaintiff $175 for his share of the cost of preparing tax returns; $1,487.20 for his share of dental expenses for one of the children; $6,196 for plaintiff's share of the income tax refund for 2010; $4,242 for plaintiff's share of the 2009 income tax refund; $12,759.63 for plaintiff's share of the monies defendant had withdrawn from the annuity; $12,724.50 for child support and alimony arrears; and $15,782.45 for plaintiff's counsel fees and costs.

Defendant contends that, other than the award to plaintiff of $12,759.63 for her share of the funds withdrawn from the annuity, the judge erred by ordering him to pay his share of the annuity to plaintiff. Defendant contends that the support arrears should be vacated because they are based on an "improperly excessive award of support." He contends that the other credits given to plaintiff should be set aside because the judge failed to make proper findings of fact regarding those credits.

We are satisfied that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). Defendant contends that the amount of his support obligations was excessive but there is no indication he ever sought a reduction in those obligations. Furthermore, defendant has provided no basis to dispute his obligations to pay plaintiff: her share of the tax refunds received in 2009 and 2010, his share of the dental expenses incurred for the child, or part of the cost for preparing the tax returns.

V.

Defendant also challenges the trial judge's award of counsel fees and costs to plaintiff.

A judge in a matrimonial action may award a party reasonable attorney's fees and costs. N.J.S.A. 2A:34-23. In doing so, the judge must consider the factors set forth in the court rules pertaining to the award of counsel fees, the financial circumstances of the parties, and whether the parties acted in good faith or bad faith. Ibid. The award of counsel fees and costs is committed to the discretion of the court. Williams v. Williams, 59 N.J. 229, 233 (1971).

In his opinion, the trial judge noted that he had considered the factors in Rule 5:3-5(c) in determining whether to award plaintiff counsel fees. The judge stated that defendant was in "a substantially better financial position" than plaintiff to pay the fees. The judge found that defendant had acted in bad faith in the past, and "his position[s] on legal issues before the [c]ourt were largely unrealistic and untenable."

The court awarded plaintiff counsel fees and costs in the amount of $15,782.45. The court placed particular emphasis upon the financial circumstances of the parties, their ability to pay their own fees, the reasonableness and good faith of the positions advanced in the litigation, the results obtained, the degree to which fees were incurred to enforce the court's prior orders, and other relevant factors.

Defendant argues, however, that the award reflects a desire on the part of the judge to punish him for being underemployed. He contends that the record does not support the judge's findings that he acted in bad faith and advanced positions that were unrealistic and untenable. According to defendant, the judge's findings were unfair and against the weight of the evidence.

We do not agree. We are convinced that the record supports the court's findings, and the award of counsel fees was not an abuse of discretion.

Affirmed.