JODIE M. FIORE v. ROBERT V. FIORE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4436-06T24436-06T2

JODIE M. FIORE,

Plaintiff-Appellant/

Cross-Respondent,

v.

ROBERT V. FIORE,

Defendant-Respondent/

Cross-Appellant.

__________________________________

 

Argued November 3, 2008 - Decided

Before Judges Reisner, Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FM-21-250-05.

John D. Williams argued the cause for appellant/cross-respondent (Gruber, Colabella, Liuzza, Kutyla & Williams, attorneys; Mr. Williams, of counsel; Virginia D. Liotta and Racquel C. Hiben,

on the brief).

James M. Cerra argued the cause for respondent/cross-appellant (Morris, Downing & Sherred, L.L.P., attorneys; Mr. Cerra, of counsel; Michelle M. Beatty, on the brief).

PER CURIAM

Plaintiff Jodie M. Fiore appeals, and defendant Robert Fiore cross-appeals, from a dual final judgment of divorce entered on March 21, 2007. We affirm in part and remand in part.

I

Plaintiff and defendant were married in 1982, in Massachusetts. At the time of the marriage, plaintiff, who had a bachelor's degree in pharmacy, had spent six months working as a consulting pharmacist and one year working as a retail pharmacist, while defendant had just completed a degree in dentistry. Immediately after the marriage, the parties moved to New Jersey, where plaintiff worked for a year as a retail pharmacist at a local Shop Rite, and defendant completed a dental residency program at Mountainside Hospital. The parties then moved back to Massachusetts where plaintiff spent the next three years working full-time as a consulting pharmacist while defendant completed a master's program in orthodontics at Harvard University. In late 1986, defendant accepted a teaching post at the University of Medicine and Dentistry and the parties moved back to New Jersey.

On November 19, 1986, the parties' first child was born. Plaintiff thereafter returned to work as a part-time consulting pharmacist between 1987 and 1988. Between 1987 and 1989, she also assisted defendant with the small private orthodontic practice he had started in Montclair. On February 1, 1988, plaintiff gave birth to the parties' second child. By the time the parties' third child was born on August 18, 1989, plaintiff had stopped working as a pharmacist. The parties agreed that she should focus her energies on being a homemaker and raising the children. The parties' fourth child was born on February 22, 1992.

In 1989, defendant closed his practice in Montclair and the family moved to Warren County where defendant set up a new orthodontic practice with locations in Blairstown and Newton. The parties purchased two commercial properties, which they placed in the name of the Fiore Family Partnership. Defendant rented space in each building and operated his practice out of those locations. Plaintiff and defendant each held a thirty percent interest in the partnership, while each of the children held a ten percent interest. Defendant's practice was successful and he reported income of $238,271 in 2003, $225,496 in 2004, and $274,856 in 2005.

According to defendant, the parties lived in a moderate fashion, preferring to save rather than spend. They generally took only two vacations per year, one to the mountains to ski, and the other to the beach in Maine. As a result, there were no mortgages on any of the residential or commercial properties, and they accumulated substantial savings. Plaintiff insisted, though, that she spent lavishly on clothing and food.

On February 22, 2005, plaintiff filed for divorce. Nonetheless, the parties continued living together in the marital home located in Blairstown until December 22, 2005, when defendant moved into a new home in Fredon Township. He had previously closed on this home on September 9, 2005. Defendant took out a $343,200 mortgage to cover the $429,023 purchase price of the home.

At the time of trial, both parties were forty-nine years of age. The two oldest children were full-time college students living on campus during the school year. They both lived with plaintiff during the summer and while on school breaks. The two younger children, boys ages seventeen and fourteen, both attended the same local high school. The older son resided with plaintiff, while the younger son spent most nights at defendant's home. The older son, who was in his senior year of high school, planned to attend college the following year.

Addressing her career plans, plaintiff testified that she intended to return to work on a part-time basis, but not as a pharmacist. She testified that she enjoyed painting and was looking into obtaining an associates degree in the arts and someday working in a gallery. Plaintiff testified that she had been diagnosed with hypothyroidism in 1994, for which she took medication, and that she considered her health a factor as to whether she could work full time since she napped two hours every day. However, while plaintiff filed a motion in the middle of the trial for leave to present a medical expert, she did not proffer a formal expert report on the issue of her health. The judge denied her application.

Plaintiff's pharmacy license was set to expire in the spring of 2007, and she needed to complete twenty-seven continuing education credits (by completing online tests) and pay $95 to renew the license. She contended that she did not feel prepared to resume the career she had left behind nearly two decades before. She also did not believe she possessed the stamina needed to work as a full-time pharmacist and further maintained that she was not up to the travel required of a consulting pharmacist. As directed by the court in an order dated July 20, 2006, plaintiff had inquired about a number of pharmacist positions, but had not been offered any jobs. She testified that several potential employers told her that she had been out of the market too long and that they were not interested in retraining her.

Donna Kolsky, an employability expert, testified on behalf of defendant that she interviewed plaintiff as part of an employability assessment. During the interview, plaintiff advised her that she had no intention of returning to work until the youngest child was in college, that she was not interested in resuming her career as a pharmacist, and that she hoped one day to open an art gallery. Kolsky administered several tests to plaintiff in order to assess her other marketable skills, but was unable to draw any conclusions regarding other potential fields of employment because plaintiff refused to complete all of the tests. Plaintiff, in fact, walked out of the interview, stating that she resented being forced to "jump[] through hoops."

Because of plaintiff's failure to cooperate, Kolsky was forced to focus her employability analysis on whether plaintiff was employable as a pharmacist, without considering other possible career options. Kolsky contacted the Board of Pharmacy and learned that plaintiff could work as a pharmacist provided her license was current. Kolsky testified that, according to the United States Department of Labor, pharmacy was a growing field and there were expected to be twenty-one to thirty-five percent more pharmacist positions within the next ten years. She further stated that, according to the New Jersey Department of Labor's Occupational Employment Statistics, pharmacists in Warren, Sussex, and Passaic counties earned between $72,000 and $90,000 per year.

Kolsky performed a labor market survey by contacting placement agencies and also responding to newspaper and internet ads. Every potential employer she spoke to stated that the lengthy gap in plaintiff's employment history would not preclude her from being hired. According to Kolsky, there were numerous jobs in the immediate area for which plaintiff was qualified, including an entry level retail pharmacy job in Oakland paying $99,000, and entry level positions at local hospitals paying $70,000 to $80,000, plus benefits. Based upon her survey, Kolsky concluded that plaintiff was employable as a pharmacist earning between $70,000 and $90,000 per year. Kolsky insisted that, while some employers might not consider plaintiff because of her lengthy absence from the workforce, most would because there were simply not enough pharmacists to fill the available positions in the job market.

Before the trial judge issued a decision, the parties entered into a number of agreements and stipulations. They entered into a consent order in which they agreed to share joint legal custody of the children. With respect to their financial issues, they stipulated that the marital home was worth $825,000, the commercial properties were collectively worth $850,000, and defendant's practice was worth $415,000. The parties had agreed that 40% of the value of the commercial properties ($340,000) would be set aside for the children, that plaintiff would receive one-third ($138,333.33) of the value of defendant's practice, and that all retirement and cash accounts would be split on a fifty-fifty basis.

Following the trial, the judge issued a comprehensive twenty-seven page written opinion dated December 31, 2006, addressing the remaining disputed issues. After evaluating the credibility of the witnesses, the judge found as fact that defendant's home in Fredon was purchased with non-marital assets, defendant's $130,000 inheritance from his mother was never treated as a marital asset, and a $10,000 gift plaintiff received from her mother was likewise not a marital asset. Accordingly, those assets were all exempt from equitable distribution. However, the judge awarded plaintiff in excess of $1,500,000 in assets, including the marital home.

Based upon Kolsky's testimony, which he found believable, the judge concluded that plaintiff was eminently employable as a pharmacist, despite her desire to avoid working in that field. Accordingly, he determined that income in the amount $76,150 should be imputed to plaintiff.

The trial judge's opinion also set forth an exhaustive, eight-page discussion of the alimony issue. After taking into account the marital standard of living as reflected on defendant's Case Information Statement (CIS), and defendant's average net income for the past three years of $194,638, the judge ruled that plaintiff was entitled to permanent alimony in the amount of $58,850 per year. This amount included a savings component of $17,238.

In determining alimony, the judge noted that he did not find plaintiff's lifestyle testimony credible. Instead, he concluded that she had inappropriately spent tens of thousands of dollars both before and after the divorce filing, in an effort to artificially inflate her claim to a lavish lifestyle:

This matter has been pending since February 22, 2005, and is now approaching two (2) years in duration. During that entire time the plaintiff has remained unemployed. During that same time period, she has spent tens of thousands of dollars, all of which has been paid by the defendant. Her unrestrained spending continued until the pendent lite order was put in place in July. Even after that order was entered she made over $11,000.00 in credit card purchases which was a clear violation of the court's order that the credit card be used for emergencies only. She was found by the court to be in violation of litigant's rights for having done so.

The importance here is she had the time, stamina and ability to spend thousands of dollars.

The court finds this activity was all focused on attempting to inflate the parties['] standard of living pre and post filing.

It is clear that this unrestricted spending was not the parties['] standard of living. Their standard of living was moderate with savings as the rule, not spending as the plaintiff wished the court to believe.

The judge also concluded that plaintiff had unreasonably refrained from seeking appropriate employment during the two-year pendency of the case, despite the court's previous order that she should be looking for work as a pharmacist.

The judge calculated defendant's child support obligation at $263 per week based on what he believed to be the current Child Support Guidelines. Although defendant's income was above the Guidelines levels, the judge concluded that no "additional discretionary child support" was appropriate beyond the Guidelines amount, because the two oldest children were living at college during the school year and hence had reduced need for additional support, and "their college expenses are being paid for from monies put aside by the parents for that purpose." Additionally, the youngest son spent most of his time with defendant and thus plaintiff needed less financial support for this child. See Caplan v. Caplan, 182 N.J. 250, 266 (2005); N.J.S.A. 2A:34-23(a).

After considering the factors set forth in Rule 5:3-5(c), the judge declined to award plaintiff counsel fees. He reasoned that her substantial equitable distribution and alimony awards would enable her to pay her own attorney fees. He also concluded, among other things, that "many of the plaintiff's arguments had no basis in law or accounting and she had acted in bad faith in attempting to inflate the marital lifestyle as well as violating a Court Order."

II

On this appeal, plaintiff raises the following points for our consideration:

POINT I: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED THE PLAINTIFF'S COUNSEL TO BE RELIEVED AS COUNSEL DURING THE PENDENCY OF THE TRIAL.

A. The Trial Court Committed An Abuse Of Discretion In Granting Mrs. Fiore's Attorney Leave To Withdraw During The Trial Without Considering The Material Adverse Effects This Would Have On Her Case.

B. The Trial Court Committed A Clear Error In Judgment Amounting To An Abuse Of Discretion In Granting Mrs. Fiore's Attorney Leave To Withdraw During The Trial Without First Considering The Ten Statutory Factors Enumerated Under R. 5:3-(D)(2).

POINT II: THE TRIAL COURT FAILED TO CONSIDER ALL OF DEFENDANT'S INCOME WHEN ESTABLISHING ALIMONY.

A. The Trial Court Did Not Adequately Consider The Tax Consequences Of Alimony, Specifically Defendant's Right To Deduct The Payments, When Calculating Defendant's Income For Alimony Purposes.

B. The Trial Court Did Not Consider Defendant's Unearned Income Or Business Expenses That Personally Benefited The Defendant.

POINT III: THE TRIAL COURT ERRED IN APPLYING THE WRONG CHILD SUPPORT GUIDELINES WHEN CALCULATING DEFENDANT'S CHILD SUPPORT OBLIGATION AND IN FAILING TO ADJUST THE CHILD SUPPORT AMOUNT IN CONSIDERATION OF THE CHILDREN'S AGES.

POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION WHEN IMPUTING INCOME TO PLAINTIFF AS A FULL-TIME PHARMACIST FOR THE PURPOSES OF SUPPORT.

POINT V: THE TRIAL COURT FAILED TO CONSIDER ALL ASSETS AVAILABLE FOR EQUITABLE DISTRIBUTION AND ALIMONY.

A. The Trial Court Failed To Consider The Parties' Mellon Account When Distributing The Property.

B. The Trial Court Incorrectly Held That The Fredon Property Was Not Subject To Equitable Distribution, Despite The Fact That Defendant Used Marital Assets To Purchase The Property.

POINT VI: THE TRIAL COURT ABUSED ITS DISCRETION BY NOT DIRECTING THAT DEFENDANT MAINTAIN A LIFE INSURANCE POLICY TO PROTECT PLAINTIFF'S ALIMONY.

POINT VII: THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO ALLOW PLAINTIFF TO AMEND HER WITNESS LIST TO INCLUDE AN EXPERT AS TO HER MEDICAL CONDITION.

POINT VIII: THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO AWARD PLAINTIFF COUNSEL FEES.

POINT IX: THE CUMULATIVE EFFECTS OF THESE ERRORS CAUSED SUBSTANTIAL PREJUDICE TO MRS. FIORE SUCH THAT REVERSAL IS WARRANTED.

Defendant raises the following contentions in support of his cross-appeal:

POINT I: THE TRIAL COURT IMPROPERLY EXCLUDED PLAINTIFF'S $10,000 GIFT FROM EQUITABLE DISTRIBUTION.

A. The Trial Court Committed Harmful Error By Excluding Plaintiff's $10,000 Gift From Equitable Distribution.

B. The Trial Court's Decision To Exempt Plaintiff's $10,000 Gift Was Not Supported By Substantial Credible Evidence.

POINT II: THE LEVEL OF ALIMONY AWARDED TO PLAINTIFF WAS EXCESSIVE AND THE PRODUCT OF ERRONEOUS FINDINGS OF FACT.

A. The Trial Court Awarded Alimony Based On An Unadjusted Standard Of Living.

B. The Trial Court Imputed Too Little Income To Plaintiff.

C. The Trial Court Failed To Impute Income To Plaintiff Based On Her Investment Income.

D. The Trial Court Did Not Make Findings Of Fact To Support The Entitled Savings Account.

POINT III: THE TRIAL COURT ERRED BY FAILING TO ORDER PLAINTIFF TO PRODUCE COPIES OF ALL FAMILY PHOTOGRAPHS.

Defendant concedes that the trial judge used the wrong version of the Child Support Guidelines. Moreover, in response to our request for supplemental submissions, both sides agreed that the trial judge's decision contained two mathematical errors, one concerning equitable distribution and the other concerning alimony. With the exception of those issues, and an issue concerning family photographs, we conclude that the trial judge's decision is supported by substantial credible evidence, R. 2:11-3(e)(1)(A), and is legally correct. Further, except as discussed below, the parties' appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We begin with the issue of child support. The parties agree that the trial judge relied on an outdated version of the Child Support Guidelines, R. 5:6A, Appendix IX-F. Plaintiff contends that the court should have used the September 1, 2006 version of the Guidelines, which was applicable as of the date of the court's decision. See Child Support Guidelines, Pressler, N.J. Court Rules, Appendix IX-F to R. 5:6A at 2289 (2007). Defendant agrees. Plaintiff also contends that the child support amount should have been increased by 14.6% to account for the age of the children since the Guidelines recognize that older children need a greater average level of support. Using the correct calculations, plaintiff contends that the court should have ordered an award of $414 per week instead of the $263 per week the court ordered. Defendant agrees.

Accordingly, we remand for the limited purpose of correcting the final judgment to reflect a child support award of $414 per week. Because we find no error in the trial judge's conclusion that an award above the Guidelines amount was not justified under the facts of this case, no further relief is warranted on this issue. See Caplan, supra, 182 N.J. at 268; Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999).

We next address the trial court's decision to permit plaintiff's counsel to withdraw during the trial. At oral argument, both counsel contended that this was a key appellate issue and it was the main focus of their presentations to us. Hence, we discuss the issue at some length.

In the middle of the trial, plaintiff's attorney, Kimarie McDonald, filed a motion to be relieved as counsel. McDonald contended that plaintiff's father, George Luker, a Massachusetts attorney who had attended the trial daily, was repeatedly second-guessing McDonald's trial strategy. McDonald attested that her communication with plaintiff had broken down, to the point where plaintiff refused to speak to her about the case directly and insisted that McDonald communicate with her through Luker. McDonald also contended that plaintiff owed approximately $25,000 in counsel fees and was refusing to pay the fees, even though defendant was willing to allow the fees to be paid from joint marital assets.

Plaintiff initially opposed the motion. However, on October 12, 2006, plaintiff's father filed a motion to be admitted pro hac vice for the purpose of representing plaintiff in the litigation. In his motion, he stated:

The Plaintiff's trial counsel has filed a motion to withdraw from this case due to issues between them. The Plaintiff is willing to assent to such motion. In anticipation of the hearing on the motion to withdraw, Plaintiff has made arrangements for me, if allowed, to appear pro hac vice as trial counsel, to be associated with [local New Jersey counsel].

The motion was supported by a certification from plaintiff stating that she consented to her attorney's motion to withdraw:

I, Jodie M. Fiore, do hereby assent to the appointment of George P. Luker as my attorney Pro Hac Vice, and I assent to the withdrawal of Attorney Kimarie McDonald as my attorney, subject to the allowance of Attorney George P. Luker. We have arrived at a point where I have issues with Attorney McDonald's service and financial matters, which I reserve the right to contest.

Moreover, when the parties appeared before the trial judge on October 19, 2006 for oral argument, no party disagreed with McDonald's assertion that her motion to be relieved was unopposed. The only adversarial proceedings concerned defendant's objection to Luker representing plaintiff based on an asserted conflict of interest. Luker assured the trial judge that he had prior experience trying divorce cases, and that he was quite familiar with this case, having attended the entire trial. He also denied having had a prior attorney-client relationship with defendant.

After taking testimony concerning defendant's objections, the judge granted McDonald's motion to be relieved on the record on October 20, 2006. He also concluded that Luker did not have a prior attorney-client relationship with defendant so as to preclude his representing plaintiff in the divorce action. Accordingly, the judge also permitted Luker to represent plaintiff and granted a short trial adjournment so that Luker could have additional time to prepare.

Plaintiff now contends that the trial court erred in granting McDonald's motion. The short answer to this argument is that plaintiff consented to the motion and cannot raise on appeal an issue she abandoned in the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). Moreover, in light of plaintiff's consent, and her father's assurance to the court that he had matrimonial litigation experience and was familiar enough with the case to complete the trial, we find no abuse of discretion or other error in the court's decision to grant McDonald's motion. See Kreigsman v. Kreigsman, 150 N.J. Super. 474, 479 (App. Div. 1977); Haines v. Liggett Group, Inc., 814 F. Supp. 414, 422 (D.N.J. 1993); R.P.C. 1:16; R. 5:3-(d).

We also address the issue of family photographs. Defendant contends that the trial court should have ordered plaintiff to produce copies of family photographs. The record reflects that defendant made a request for copies of the photos on the record; the trial judge directed plaintiff to "preserve" the photos and indicated that the court would ensure that plaintiff made copies. However, this determination was not memorialized in an order, and the judge did not state which party should bear the cost of having the photos copied.

In her brief, plaintiff advises us that she has no objection to providing defendant with copies of the photographs, at his sole expense. However, since both parties have a reasonable claim to the originals of the photographs, we conclude that they should share equally in the cost of duplicating them. Accordingly, we remand for entry of an order directing plaintiff to provide defendant with copies of the photographs and directing each party to pay one-half the cost of having the copies made.

We find no abuse of discretion in the trial judge's well-supported determination to impute income to plaintiff. Nor do we find any basis to disturb his alimony award, except for a mathematical error noted later in this opinion. The income and alimony decisions were largely based on credibility determinations to which we must defer, and they are supported by sufficient evidence in the record. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998). We agree with defendant that plaintiff received a sufficient alimony award to enable her to maintain the marital lifestyle. See Crews v. Crews, 164 N.J. 11, 16 (2000)("[T]he goal of a proper alimony award is 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.")

In reviewing the trial judge's opinion, we noted two mathematical errors, which we raised sua sponte in a letter to counsel dated November 10, 2008. One error concerned the division of $510,000 in half as yielding $205,000 instead of $255,000, resulting in an approximately $50,000 error in equitable distribution. In their responses to our letter, the parties agreed that this was an error. The other matter involves a subtraction error. In calculating alimony the trial court subtracted $40,392 from $118,000 and arrived at $94,608 instead of $78,408. Both sides agreed this was an error, but defendant contended that it should not increase the ultimate alimony award. We remand these issues to the trial court to (a) mathematically correct the equitable distribution award and (b) re-calculate alimony. As to issue (b), the court may wish to permit supplemental briefing.

We find no abuse of discretion in the judge's decision to deny plaintiff's application for counsel fees, for the reasons the judge stated in his written opinion.

Finally, having reviewed the entire record, including the twenty-seven volumes of transcript, we conclude that the parties' appellate arguments do not merit further discussion here. R. 2:11-3(e)(1)(E). Except for the very limited issues previously discussed, as to which we remand to the trial court, we affirm substantially for the reasons stated in the trial judge's cogent and comprehensive written opinion.

Affirmed in part, remanded in part.

In 2003, the youngest child was diagnosed as suffering from certain medical problems. However the judge concluded that this child's "special needs" would not preclude plaintiff from holding a full-time job, particularly since the child spent more time with defendant than with plaintiff.

Plaintiff has not properly appealed from this ruling. Her appendix does not include either her motion or the apparently very brief doctor's note she presented in support of the motion.

The decision was memorialized in an order dated November 9, 2006.

(continued)

(continued)

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A-4436-06T2

December 9, 2008