PATRICIA GALL v. JOHN GALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3802-11T3

PATRICIA GALL,

Plaintiff-Respondent,

v.

JOHN GALL,

Defendant-Appellant.

March 13, 2013

 

Argued November 27, 2012 - Decided

 

Before Judges Alvarez and St. John.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-944-11.

 

Charles A. Fiore argued the cause for appellant.

 

David M. Lipshutz argued the cause for respondent.

 

PER CURIAM

Defendant John Gall appeals a final judgment of divorce entered February 22, 2012, after trial. We affirm in part, reverse in part, and remand for additional hearings.

The parties married September 11, 1982, had three children, and separated in March 2010. Plaintiff Patricia Gall remained in the marital home with the two youngest children, Brian born in 1991, and a daughter born in 1994.

In reaching its decision regarding support, the trial court found that plaintiff earned approximately $34,922 as an employee in a medical office. Defendant, a supervisor of facilities for a school system, earned $81,400. As a result, the court ordered defendant to pay plaintiff $1300 per month in alimony. Additionally, he was required to pay, after calculations pursuant to the child support guidelines, $204 per week in child support, the children's health insurance, and one-half of any other child-related expenses.

The trial judge also ordered that defendant name plaintiff the beneficiary of the $100,000 life insurance policy provided through his employment. Upon retirement, he was to continue to provide that amount of coverage "as long as he has the responsibility for alimony and child support." Defendant1 was to pay for a separate $30,263.24 whole life policy on defendant's life, naming plaintiff as the insured. The court did not specify any triggering events which would permit defendant to discontinue the policy, cash it in, or change the beneficiary, merely stating that it did "not relieve the defendant from maintaining the life insurance policy . . . through his employment." Plaintiff was also to maintain a $25,485.02 whole life insurance policy on her life, naming defendant as the beneficiary, until the emancipation of the parties' children.

The trial judge noted that plaintiff "withdrew $10,775.54" from her retirement account in order to bring current a mortgage arrearage that accumulated post-separation. The judge interpreted the relevant documents as establishing that with the proceeds, plaintiff paid $8620.27 as a lump sum towards arrears plus $2155.27 to satisfy the tax obligation resulting from the withdrawal. The judge found that plaintiff had made total contributions of $13,042.31, and that the retirement account thus had a remaining value of only $6000. Consequently, she fixed defendant's "share of this debt," or share of the mortgage arrearage payment funded through this withdrawal, at $5387.71. The judge ordered that upon the sale of the house, $10,775.54 from the proceeds be paid into plaintiff's retirement account, and if not possible, defendant was to credit plaintiff for "his share of the debt of $5,387.71 at the time of the sale of the house."

Plaintiff testified that she withdrew only $6000 from the retirement account and her parents funded the $1000 difference to make a lump sum payment. She also testified that she paid an additional $800 monthly to make the mortgage current over twelve months. Defendant was ordered to reimburse plaintiff for two $800 monthly mortgage payments.

Defendant was also required to pay plaintiff $300 per month towards a credit card debt. Finally, defendant was required to pay plaintiff $8500 in counsel fees.

By way of points on appeal, defendant raises the following:

I. THE TRIAL COURT ERRED IN FAILING TO OUTLINE[] THE FACTORS UPON WHICH IT RELIED . . . TO DETERMINE THE DEFENDANT, JOHN GALL'S $1,300.00 PER MONTH ALIMONY OBLIGATION TO PLAINTIFF, PATRICIA GALL.

 

II. THE TRIAL COURT ERRED IN FINDING THAT THE PARTIES' SON . . . IS NOT EMANCIPATED IN ACCORDANCE WITH NEW JERSEY LAW.

 

III. THE TRIAL COURT ERRED IN UTILIZING THE CHILD SUPPORT GUIDELINES TO DETERMINE THE CHILD SUPPORT TO BE PAID FROM DEFENDANT JOHN GALL TO PLAINTIFF PATRICIA GALL FOR BRIAN . . . .

 

IV. THE TRIAL COURT ERRED IN REQUIRING THE DEFENDANT TO MAINTAIN HIS PRUDENTIAL WHOLE LIFE INSURANCE POLICY WHEREIN THE BENEFICIARY IS PATRICIA GALL IN THAT IT WAS DETERMINED THAT HE WAS ONLY REQUIRED TO CARRY $100,000.00 IN LIFE INSURANCE.

 

V. THE TRIAL COURT ERRED IN REQUIRING THE DEFENDANT, JOHN GALL, TO REIMBURSE THE PLAINTIFF'S AXA EQUITABLE RETIREMENT ACCOUNT IN THE AMOUNT OF $5,387.77.

 

VI. THE TRIAL COURT ERRED IN FAILING TO IMMEDIATELY REQUIRE THE FORMER MARITAL RESIDENCE TO BE LISTED FOR SALE AND INSTEAD ALLOWING PLAINTIFF TO HAVE EXCLUSIVE POSSESSION OF SAME AND NOT REQUIRING SAME TO BE LISTED FOR SALE UNTIL 12/1/12.

 

VII. THE TRIAL COURT ERRED IN REQUIRING THE DEFENDANT JOHN GALL, TO BE FULLY RESPONSIBLE FOR THE ADDITIONAL MORTGAGE PAYMENTS FOR THE MONTHS OF MARCH AND APRIL 2012 IN THE AMOUNT OF $800.00 AS WELL AS PAY ALIMONY AND CHILD SUPPORT AS OUTLINED ABOVE.

 

VIII. THE TRIAL COURT ERRED IN REQUIRING THE DEFENDANT, JOHN GALL, TO BE SOLELY RESPONSIBLE FOR THE MONTHLY CREDIT CARD PAYMENTS IN THE AMOUNT OF $300. 00 BEGINNING MARCH 2012 IN ADDITION TO PAYING ALIMONY, CHILD SUPPORT AND THE $800.00 MORTGAGE PAYMENTS.

 

IX. THE TRIAL COURT ERRED IN REQUIRING THE DEFENDANT, JOHN GALL, TO PAY $8,500.00 OF PLAINTIFF'S COUNSEL FEES AT A RATE OF $500.00 PER MONTH BEGINNING IN MAY OF 2012.

 

As a general rule, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Appellate courts should "exercise [their] original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The factual findings and legal conclusions of the trial court should not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).

Family courts "possess special expertise in the field of domestic relations." Cesare, supra, 154 N.J. at 412. The goal of family court is to "achieve a sounder and better form of justice" by "specializ[ing] in and uniquely understand[ing] the problems of families and all matters related thereto." Brennan v. Orban, 145 N.J. 282, 301 (1996). In light of the special jurisdiction of such courts, "appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

I

Defendant challenges the court's award of $1300 per month on the basis that it did not sufficiently analyze the statutory factors found in N.J.S.A. 2A:34-23(b). Additionally, defendant objects that the judge did not make a specific and adequate analysis of the parties' marital lifestyle. See Crews v. Crews, 164 N.J. 11, 26 (2000); Gordon v. Rozenwald, 380 N.J. Super. 55, 76-77 (App. Div. 2005).

We do not agree. The court made extensive findings with regard to the parties' income earning capacities and lifestyle, noting that during the course of this long-term marriage, "[t]he standard of living is modest for these people and not extravagant. They have had difficulties in paying legitimate debts." The parties' weekly earnings and monthly expenses were thoroughly addressed in the trial testimony.

Therefore, we simply do not agree that the trial court "clearly abused its discretion, failed to consider all of the controlling legal principles, or [was otherwise] mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole." Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996) (citing Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993)).

The trial judge included in her analysis: that plaintiff earned less than one-half the annual income of defendant, the fact this was a long-term marriage, that plaintiff was fifty-two and defendant fifty-seven. She found that alimony in this case would "assist with maintaining a modest standard of living, but will not replace it. These parties cannot live the same separately as they did together, [because when] they were together they were having trouble making ends meet as witnessed by [Patricia]'s mother's substantial help . . . ."

The court took into account the tax consequences of payment, noting that the alimony would result in a deduction to defendant and taxable income to plaintiff. In our view, the alimony award was supported by "sufficient credible evidence present in the record," and was not an abuse of discretion. The court adequately weighed the statutory factors and the circumstances of the parties as developed over the course of the trial. Accordingly, we affirm this aspect of the divorce judgment.

II

We are not, however, convinced as to the court's conclusion regarding Brian. He lives at home and, at the time of trial, intended to enroll as a full-time student in the spring semester of 2012. Brian worked full-time and had recently purchased a car. He testified that he had not previously been a full-time student because he felt he could not afford to do so. Brian's academic average at the time was 2.5. With his earnings, he paid for all his personal expenses, including gasoline, clothes, and food outside of the home.

Because the court found that Brian was a full-time student, it awarded child support pursuant to the guidelines. In addition, defendant was required to contribute towards Brian's college expenses in a "proportionate share."

We agree in theory that a full-time college student is not emancipated, as there is no "fixed age" for emancipation, and each child's status requires a fact-sensitive determination. Gac v. Gac, 186 N.J. 535, 542 (2006). It is undisputed, as Brian testified, that despite working full-time, he could not afford to live outside of his mother's home because of his limited earnings. But the court's conclusion that Brian was not emancipated because he was attending college full-time was based on a future eventuality, and was thus not a proper basis for a finding that at the time of trial he was unemancipated. Brian worked full-time, and was only a part-time student. He purchased a vehicle, including a $1750 down-payment, without assistance from his parents. Accordingly, we reverse the order of child support as to Brian.

A child over the age of eighteen, working full-time, and attending school only part-time, absent some unusual circumstances not evident in this record, is emancipated even if residing with a parent because his or her employment income is alleged to be insufficient to allow the child to live independently. This decision, of course, is made without prejudice to any future application should Brian enroll in college full-time and should the parties be unable to reach an agreement, as always the issue can be revisited by way of a post-judgment motion.

III

On the question of life insurance, plaintiff asserts that the court intended to require defendant to maintain a total of $130,263.24 in coverage for her benefit; namely, the $100,000 available at work plus the $30,263.24 whole life policy. Defendant contends that the court erred, as the $100,000 life insurance policy maintained through his employment is sufficient to guarantee his remaining alimony and child support obligations to plaintiff.

On this point, we cannot ascertain the court's intent from the record as to the total amount of coverage. Nor can we ascertain the court's intent as to the events that would allow defendant to terminate the whole life insurance policy, or modify its terms, including a change in beneficiary. We therefore direct that on remand the court clarify the nature of the obligation, including confirming that defendant was the party responsible for the continuation of the $30,263.24 whole life policy. We simply cannot discern if the court was ordering defendant to maintain $130,263.24 in coverage or something else.

 

IV

Plaintiff acknowledges that the court erred in requiring defendant to reimburse her retirement account for the sum of $5387.71. The trial judge acknowledged while rendering her decision: "I don't know if I've interpreted these documents correctly . . . ." Therefore our remand for further proceedings shall include clarification on this issue.

The court appeared, despite defendant's claim that plaintiff should be solely responsible for the arrearage, to make defendant responsible for only one-half the outstanding sum. What we cannot discern, however, is whether the court found defendant owed half of the lump sum amount, the lump sum plus monthly $800 payments, or something else.

V

Defendant's appeal of the deferred sale of the marital home is now moot. Under the terms of the divorce judgment, the house was to be placed on the market on December 1, 2012.

VI

Defendant also contends the court erred by requiring him to make a $300 per month credit card payment until such time as the marital home was sold, when the balance due would be paid in full from the gross proceeds of sale. In imposing this obligation, the court noted that plaintiff testified the credit card was used, among other things, to pay tuition for the parties' oldest child, now emancipated. Plaintiff also testified that defendant refused to contribute towards the credit card or the college expenses after the parties' separation. In the court's view, the debt was marital, and plaintiff alone had been paying towards it. Given the disparity between the parties' annual earnings and the reason for the expenditures, the court had substantial credible evidence in the record upon which to base its ruling. We do not disturb this aspect of the judgment.

VII

Finally, defendant contends the court erred by awarding plaintiff $8500 in counsel fees. That sum represents counsel fees incurred after the parties submitted their dispute to a matrimonial early settlement panel (MESP). The court's award was based on plaintiff's counsel expending 34 1/6 hours on the matter at an hourly rate of $250, which the court found reasonable. We concur.

A decision to award attorney's fees is discretionary with the court. The judge considered the factors enumerated in Rule 5:3-5(c) in her extensive findings on the subject. She stressed the parties' disparate financial circumstances and ability to pay, and defendant's insistence upon proceeding to trial in light of his rejection of the MESP panel's recommendation. See Chestone v. Chestone, 322 N.J. Super. 250, 256-57 (App. Div. 1999). We see no abuse of discretion and therefore affirm this aspect of the judgment.

Affirmed in part, reversed as to child support for Brian, and remanded for additional proceedings regarding mortgage reimbursement payable by defendant to plaintiff and the extent and terms of insurance coverage on defendant's life.

1 The transcript of findings and the judgment of divorce state that plaintiff, not defendant, was to make the payments on the policy. The parties believe the trial judge ordered defendant to maintain the policy. Given the context, we too assume that to be the case, however, it is an issue worth clarifying on remand.