JEFFREY BORRELL v. JOANNE BORRELL

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-0451-12T2

 

JEFFREY BORRELL,

 

Plaintiff-Respondent, v.

JOANNE BORRELL,

 

Defendant-Appellant.

 

 

 

 

Submitted December 10, 2013 Decided

 

Before Judges Espinosa and Koblitz.

February 4, 2014

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1380-11.

 

Goldstein and Bachman, P.A., attorneys for appellant (Howard A. Bachman, of counsel; David R. Cardamone, on the briefs).

 

Jeffrey Borrell, respondent pro se. PER CURIAM

Defendant Joanne Borrell (wife) appeals from the provision of the June 21, 2012 final judgment of divorce awarding her

$4000 per month in permanent alimony after a six-day trial. She also appeals from the August 10, 2012 denial of her motion for reconsideration. After review of the facts in light of the issues raised by wife, we affirm.

ThepartiesweremarriedinJune1985andhadthree children. PlaintiffJeffreyBorrell(husband)isanattorney whoowns afifty-percentinterest as apartnerin hisownlaw firm,whichoperatesinbothNewYorkandNewJersey,witha focus on personal injury andmedical malpracticematters. Throughoutthemarriage,heearnedsubstantial additionalmoney from various investments, such as "interest, dividends, municipal bond interest, and real estate."

Theparties hiredajointexpertto provideacash flow analysisofhusband'sincome. Theystipulatedtotheexpert's findingthat husband hada three-yearaverageincome of $224,595 before taxes and$198,358 after taxes.

The trial judge determined permanent alimony was

 

appropriate, stating,"Thisis a25-year marriage, the wife has beenastay-at-homeMom. She'soflimitededucation. Shehas somehealthissues,thoughit'sneverbeenestablishedthat she's in any waydisabled. There's beenno proof she's readily employable. . .."

Thejudgethenmadesomeadjustmentstowife'sexpensesas

 

reflectedonhercaseinformationstatement. First,herefused to considerherclaimed$2500for a mortgage, reasoningthat she didn'thaveamortgageonanypropertyatthetime. Shewas stilllivinginthemaritalhomemortgage-free. Husbandpaid

 

therealestatetaxes. Whileshemaywellacquire a mortgagein thefuture,thejudgefound that to betoospeculative tobe consideredinanalimonyaward. Hespecificallypermittedher to file a motionfor changed circumstanceswhenshe acquired a mortgage or rental expense.

Thejudgecutwife'sfoodcostof$860to$500permonth. The $1000wife claimed to spendon private school was eliminated becausethatchild'sparochial-schooltuition waspaid forby husband'slawpractice. Wife'sdebt service payments,which she claimedamountedto $1,036, werereducedto$637per month. In all,herindividualmonthlybudgetwasreducedto$5,048from

$11,681by theseadjustments.

 

The judgethenawardedwife$4,000 a month inpermanent alimony,or $48,000ayear, taxable to her anddeductibleto husband. When added to the income from the equitable distribution award, which the judge determinedwould generate approximately$52,000ayear,wifewouldreceive$100,000a year,or$8,333.33amonth. Assumingaten-percenttaxrate, whichthejudgedeemedappropriateinlightofthefactthat many ofherassetswere taxexempt,the taxconsequencesofthis award weredetermined to be $800a month.

Thejudgethenanalyzedhusband'sincomeaftertaxesand

 

the alimony award were deducted, determining it to be

approximately $139,000,comparedtowife's$100,000. Thejudge reasoned thatthis was an appropriate outcome, in light of the fact that thegoalofalimonyis to beabletomaintainboth parties at the marital lifestyle.

Appellate review "of the amount of an alimony award is

 

limited." Gordonv.Rozenwald,380N.J.Super.55,76(App.

 

Div.2005). Thetrialcourthasdiscretiontoset alimonybased upontheevidencebeforeitanditsrulings"insuchmatters [should not be] overturned unless the court abused its discretion,failed to considercontrollinglegalprinciplesor madefindingsinconsistentwithorunsupportedbycompetent

evidence." Ibid.SeealsoJ.E.V.v.K.V.,426N.J.Super.475,

 

485 (App. Div. 2012).

 

I

Wifearguesthatthetrialjudgefailedtoconsiderallof therequiredstatutoryfactorsinawardingalimony. N.J.S.A.

 

2A:34-23(b)providesthat"[i]nallactionsbroughtfordivorce

 

...thecourtmayaward...permanentalimony[.]" "When awardingalimony,thecourtshallconsider,butnotbelimited

to" the factors enumerated in the statute. Ibid. N.J.S.A.

 

2A:34-23(c) provides that in "any cases in which there is a request for an award of permanent alimony, the court shall

 

were made in the context of his equitable distribution

 

determination. SeeN.J.S.A.2A:34-23.1. Hemadethefollowing

 

findings as to each statutory factor:

 

(1) Theactual need andability of the parties to pay

 

Thejudgeobserved thatwifehadneverearnedsignificant income and would likely have a difficult time gaining substantial employment. Hestatedthathusbandwasabletopay thealimonyandthateachpartywouldberesponsiblefortheir owndebtsbecausetheequitabledistributionleftthemwith ample resources to do so.

(2) Thedurationof themarriageor civil union

 

Thejudgenotedthatthepartieswere married fortwenty- five years,a long-termmarriage.

(3) Theage, physical and emotional healthof the parties

 

Thejudgestatedthat thepartieswere then fifty-fouror fifty-fiveyearsoldwithsometangible,butnotdisabling healthissues.

(4) The standardof living established in the marriage and the likelihoodthateach partycanmaintainareasonably comparable standard ofliving

 

 

three-bedroomhomevaluedat$425,000inOldBridgeTownship. Theyoungestchildattendedparochialschoolatthereported cost of $10,000ayear for tuition andbooks. The judgefurther statedthattheparties"investedwisely.... Theydidn't deprivethemselvesofanything. Theytookmodestvacations, theyhadsometimeshares." Thejudgeobservedthat"thisis therarecasewherethere'sactuallyenoughmoneytomaintain both lifestyles."

(5) The earning capacities, educational levels, vocational skills,andemployability of theparties

 

The trial courtfoundthathusband had been the primary earnerduringthe marriage,earning an averageof $198,358after taxes,whilewifewasnotemployednorwasshelikely to find employment.

(6)Thelengthofabsencefromthejobmarketoftheparty seekingmaintenance

 

In hisequitabledistribution findings,the judgeobserved that wifehadnotworked"inmany, manyyears." Whileshehad workedinthepast,"thatceasedbasicallyatthetime ofor shortlyafter the marriage."

(7) Theparentalresponsibilities for the children

 

 

husband.

 

(8)Thetimeandexpensenecessaryto acquiresufficient educationor trainingtoenablethe partyseeking maintenanceto findappropriateemployment,theavailabilityofthetraining and employment,and theopportunity forfutureacquisitions of capitalassets and income

 

Inperformingequitabledistribution,thecourtobserved thatithadinsufficientevidencetodetermine"whatitwould take to renderwifeemployable,if in fact thatcould be done." "[S]hehasn'twork[ed]basicallytheextentofthemarriage..

.shehassignificanthealthproblems,andshehasarelatively

 

limitededucation.... Ican'treasonablydrawaconclusion that she is employable." Wife does not seek rehabilitative

alimony. SeeCoxv.Cox,335N.J.Super.465,474-75(App.Div.

 

2000) (explaining that rehabilitative alimonyis a short-term awardmeanttosupportaformerspouse untilshebecomes economically self-sufficient).

(9)Thehistoryofthefinancialornon-financialcontributions to themarriage or civilunion byeach party including contributions tothecare and educationof thechildrenandthe interruption of personal careersor educational opportunities

 

As part of equitable distribution,thejudgeobservedthat thiswasa"traditionalmarriage. Mr.Borrellworkedoutside the home [and] was the primary financial provider. Mrs. Borrell maintainedthefamilyhouse[andwastheprimary]caregiver

 

 

childrenhad college fundsestablished forthemandno careers wereinterruptedbecauseofthemarriage. Husbandvoluntarily paid thecar insuranceforthetwoemancipatedchildren and privatehighschoolcostofthethirdchildforherremaining year ofhigh school.

(10) The equitable distributionof the propertyorderedandany payoutsonequitabledistribution,directlyorindirectly,out of current income, to the extent this consideration is reasonable,justand fair

 

The equitable distributionawardprovidedwifewithover$1 million,withincomefrom investment returnsonthat principal estimated to be approximately $52,000 annually.

(11) The incomeavailable toeither party through investmentof any assetsheld by thatparty

 

The judgedetailed the incomewife couldreceive on the equitable distribution award at an assumedfour-percentrateof return and advisedher to seekprofessional guidance on how to increasethatreturn. Inadditiontothealimonyawardof

$48,000, this afforded wifewithincomeof$100,000 a year.

 

(12) Thetax treatment and consequencesto bothpartiesof any alimonyaward, including the designation of all or a portion of the paymentas anon-taxable payment

 

Thetrialcourtdeterminedthatthealimonyawardwas taxabletowifeand deductibleto husband. Thejudge"lookedat thetaxtables,"andobservedthatwife's"effectivetaxrate

 

[wouldnot exceed] ten-percent." Thejudgeconcluded thatwife couldweatherthetaxconsequencesoftheawardbasedonthe incomeshewouldreceive. Neitherpartyprovidedinformation concerningothertax consequences.

(13) Any other factors thecourtmay deem relevant

 

Finally,thejudgespecificallystated that"there maybe a needforanapplication[tomodifythealimonyaward]"ifand when wifeacquired amortgage,but fornow,"thatshouldbemore than adequate income tosustain her."

In sum, every factor in N.J.S.A. 2A:34-23(b) was

 

considered. Althoughsomeofthe alimonyfactors werediscussed in thecontextof equitabledetermination,whichrequiresan analysis of manyof the same factors, all alimony factors were consideredin the judge's decision.

Wifealsoarguesthatthetrialcourtmadethreeerrorsin

 

calculatingthepermanentalimony award. First,thatthejudge usedhusband'spost-taxincome,butwife'spre-tax income when comparing each party'sfinalincomeafter considerationof the alimonyawarded. Second, thatthejudgefound the husband's investment earnings to be $36,532, but attributed to the wife an incomeof$52,000ayearbaseduponafour-percentrateof return on the same principal. Third,she arguesthatthejudge failedtoappreciatethathehadorderedthemaritalhomesold,

which would forcewife to payahousingcost, whichwas not consideredin the alimony award.

II

 

Wifearguesthatthejudgecomparedhusband'spost-tax cash-flow butwife'spre-taxcash-flow. The judgefirst determinedhusband'scash-flowtobe $198,000,thenumberboth parties stipulated to as his income after taxes. After deductinghousingandalimony,thehusband's cash-flowwas reduced to$139,000. Thejudgestatedthatthiswouldleave husbandwith"acushionfortaxes,"eventhoughthecourtused thepost-tax figure. Hadthejudgeusedthepre-taxfigurewith the same deductions, the resultant figure would be $165,966.

Forwife,thealimonyawardwastobetaxabletoherand

 

deductibletothehusband. Thejudgenotedthat,assuminga ten-percent taxrate of hercombinedincomeof alimonyand equitabledistributionwife'staxeswouldapproximatelybe$800 a month. Thus,thejudgecompared the parties'respectivecash- flows underdifferent standards one before tax, one aftertax.

Thisdifferentialtreatmentdoesnotconstitutereversible

errorbecause"[a]limonyhastodo withsupportandstandard of living"notwhateachpartyearns. Mahoneyv.Mahoney,91N.J.

 

488,502(1982). "[T]hegoalofaproperalimonyawardisto assist the supported spouse in achieving a lifestyle that is

 

reasonablycomparabletotheoneenjoyedwhilelivingwiththe

 

supportingspouseduringthemarriage." Stenekenv.Steneken,

 

183N.J.290,299(2005)(internalquotationmarksandcitation

 

omitted). "'The supporting spouse's obligation is set at a

 

levelthatwillmaintainthatstandard.'" Tannenv.Tannen,416

 

N.J.Super.248,260(App.Div.2010)(quotingInnesv.Innes,

 

117 N.J.496, 503 (1990)),aff'd, 208 N.J.409 (2011).

 

The judge determined the standard of living during equitabledistributionandfoundthatthealimonyawardwould allow the supported spouseto continue to enjoy that standard.

III

 

Wifedoes notattack the amountof income imputed to her baseduponinvestmentreturns,$52,000,rather,shemaintains thathusband'sinvestmentearningsshouldhavebeenimputedto be the same. She argues that had husband been imputed investmentreturns of $52,000insteadof$36,000, hisnetincome wouldhave beenhigher,andthereforeshewouldhave receiveda higher alimony award.

Wife,however,stipulatedtohusband'sinvestmentearnings.

And"[a]partfromrareinstances...stipulationsoffactare binding ontheparties." Kurakv.A.P.GreenRefractoriesCo.,

 

298 N.J.Super. 304, 325 (App. Div. 1997). Indeed, "trial

 

courts [should not] sidestep the binding nature of factual

 

stipulations. Quiteto the contrary, it isimportantfor attorneys to haveconfidence instipulationsasatool to avoid theexpense,trouble,anddelayofcomingforwardwithproofs whencertainotherwise-contestablefactsareadmitted. The basicthoughtisthatgenerallylitigantsshouldbeheldto

theirstipulationsandtheconsequencesthereof." Negrottiv.

 

Negrotti, 98 N.J.428, 432(1985).

 

Also, as we noted above, husband's income is not dispositive ofaproperalimonyaward. Ifwifereceives sufficientsupport to maintainthemaritallifestyle,thefact that husband earns moreisnot relevant.

IV

 

Wife'sfinal claimis thatthetrialcourtcommitted reversibleerrorwhenitrefusedtoconsiderwife'shypothetical

$2,500 mortgage expense. However, N.J.S.A. 2A:34-23(b)(1)

 

requiresatrialcourttoconsidertheparties"actualneed" when fashioning an alimonyaward.

Wife'smortgageexpenseisnot"actual"yet. Tobesure,a

 

mortgage expensewaspartofthe parties'marital standard of living,butthatwastomaintainthemaritalhome, wherewifeis currentlyallowedto residerent-freeuntiltheyoungestchild graduates highschool. Wifepresented no evidence of a move or havingamortgageof$2,500permonth,onlythatshewas

 

thinkingofmovingtoFlorida. Whenthejudgedeniedwife's mortgageexpenseclaim,heinstructedherthatonceshehas movedandincurred mortgageorrentpayments,shemaymake a motion fora change in circumstances.

Because the trial judge carefully considered all of the

 

appropriatestatutoryfactorsanddidnotabusehisdiscretion in awardingpermanent annual alimony of$48,000,we affirm.

Affirmed.