EILEEN SLEEPER v. EDWARD M. SLEEPER

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4342-08T3

EILEEN SLEEPER, (n/k/a Eileen

Ingling),

Plaintiff-Respondent,

v.

EDWARD M. SLEEPER,

Defendant-Appellant.

________________________________________________________________

December 3, 2010

 

Submitted November 9, 2010 - Decided

 

Before Judges Carchman and Messano.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No.FM-03-910-07-Z.

 

Hurley & Laughlin, attorneys for appellant (Thomas J. Hurley, on the brief).

 

Flaster Greenberg, P.C., attorneys for respondent (Steven B. Sacharow and Rachel E. Licausi, on the brief).

PER CURIAM

Defendant Dr. Edward Sleeper appeals from a March 25, 2009 amended judgment of divorce, which among other things, awarded alimony to plaintiff Eileen Sleeper and granted equitable distribution. Relying on her expansive findings of fact and her determination that defendant's testimony lacked credibility, Judge Claypoole ordered that defendant pay plaintiff the sum of $6,757 per month. We conclude that defendant's appeal is without merit and affirm.

These are the facts and the judge's findings. Plaintiff and defendant were married on April 11, 1986. Plaintiff is retired teacher, and defendant is a veterinarian.

The parties owned two homes a vacation home in Knowlton and their marital home in Medford, N.J. Defendant owned his own veterinary practice until he sold it, and he also owned the land housing the practice (the Mt. Laurel property). It was disputed at the time of trial as to whether the Mt. Laurel property had been sold, or whether defendant still owned it and collected rental income. Defendant and plaintiff also formed a limited liability company Sleepy Hollow LLC in which defendant had a ninety-nine percent interest and plaintiff had a one percent interest. The veterinary practice paid rent to the LLC.

Prior to trial, the parties stipulated to the equal division of a number of assets, including: the Knowlton property, bank accounts, IRAs, the marital home, defendant s life insurance policy, plaintiff s pension, plaintiff s 403(b) account and plaintiff s LSW annuity. The parties also stipulated that defendant paid plaintiff $500,000 in January 2006, and this represented plaintiff s share of the sale of the veterinary practice.

Following completion of the testimony and introduction of evidence, the judge made significant findings that informed her ultimate determination. She concluded:

Plaintiff was credible and forthright in all regards. Her record keeping was meticulous. Defendant, to the extent he was permitted to testify, was not credible. Several examples follow. On cross-examination, when asked whether he was lying, he replied that he was not lying under oath that I know of. He also admitted that he instructed his brother, who prepared the corporate tax returns for the veterinary practice, to create a number for the business rental obligation so the business would not show a profit. Defendant s deposition testimony that he did not know who a Dr. Mirabella was, was contradicted by his testimony at trial. Dr. Mirabella was a plastic surgeon to whom Defendant wrote a business check for $4,0001; the Court does not accept Defendant s trial testimony that he learned of Dr. Mirabella s identity only in Court. In short, defendant withheld, misstated or changed testimony throughout the discovery process and at trial.

 

Judge Claypoole noted that the parties were married for twenty years. She determined that both parties were in "reasonably good physical and emotional health."

With respect to the parties' marital lifestyle, the trial judge concluded that the parties enjoyed an "upper middle class lifestyle" and noted,

They ate out frequently at nice restaurants in Philadelphia and New York City and, locally . . . They attended plays and many concerts by artists such as Jimmy Buffett and Bruce Springsteen. The parties entertained at their home on holidays. They took many vacations, some for business and some purely personal. They traveled to places such as Canada, Bermuda, Florida, New Orleans, Germany, the Canadian Rockies, Jackson Hole, Wyoming, Vieques, Saint John s, Arizona, Panama and the British Virgin Islands. They stayed in higher end hotels . . . . They included their children and their families in the vacations. The parties had a family home as well as a second home in Knowlton. They had pets, usually four or more. Both parties will be able to reasonably maintain a marital lifestyle based on alimony and equitable distribution . . . even if slightly different from that which they enjoyed during the marriage.

The judge observed that plaintiff, a retired teacher, has been absent from the job market for almost nine years. Judge Claypoole found that defendant has an employment agreement from which he is to "receive $60,000 per year for working twenty hours per week plus production bonuses." Defendant additionally had other income from rental property.

She also noted that:

Ms. Sleeper was responsible for maintaining the household and taught school full-time for the majority of the marriage. She was responsible for cooking, cleaning, food shopping, entertaining, taking care of pets, washing clothes and paying the bills that came to the marital home. She tried to make Defendant s life comfortable and easier for him due to the hours that he worked. She was a supportive spouse and assisted the Defendant in his personal responsibilities for the family; she bought gifts for him, picked-up his clothing, cleaned-up after him, picked-up his prescriptions, etc. She often accompanied him to the animal hospital in the middle of the night or when he was called out on emergencies. She did all of this while working full-time.

The trial judge assessed defendant s financial situation as follows:

Defendant s W-2 for 2006 showed earnings of $57,228.17. Defendant s employment contract with Primary Care was for twenty hours per week at an annual salary of $60,000 plus a production bonus. In addition, Defendant had income from the profit of Sleepy Hollow, LLC, in the amount of $84,696.92. As such, Defendant had income of approximately $141,925.09 in 2006. Defendant s W-2 for 2007 reflects earnings of $50,964.92. Defendant s 2007 CIS indicates that his income for 2007 represents only eight months of income. On an annualized basis, his income would be $76,447.38. This sum does not include the Sleepy Hollow income and expenses for 2007, which at the time of

the filing of his 2008 CIS, had not yet been set, but were expected to be similar to 2006, or $46,224. Using the actual profit for 2006, $84,696.92, Defendant had income for 2007 of approximately $135,661.84, and an annualized amount of $161,443. No portion of this was shared with Mrs. Sleeper. Utilizing Defendant s 2007 tax return for Sleepy Hollow and his handwritten notes, his 2007 income is set at $137,047. This represents the $83,896 shown on his return plus $53,151 from Sleepy Hollow.

She also found that,

Defendant is receiving $2,967 per month in payments for the balance due on the $250,000 from the sale of the veterinary practice as set forth in the Asset Sale Agreement and admitted to by Defendant. Defendant also receives a minimum income from excess rent from the Mount Laurel property in the amount of $3,000 per month. Defendant offers uncorroborated testimony as to the sale of the Mt. Laurel real estate and produced an unsigned agreement relating to same. Assuming the sale of the premises has taken place, Defendant should realize more than $3,000 per month in income from the proceeds of the sale and reasonable investment of same. Based on the above, the Court fixes Defendant s income at $11,967 per month and finds that he has the ability to pay alimony.

 

With regard to plaintiff s financial situation, the judge explained,

Ms. Sleeper s gross monthly pension income is $2,671.60. She is in the 26% tax bracket per her accountant and the stipulation of the parties. Fifty three percent of $2,671.60 is $1,415.95. After deducting 26% for taxes, Ms. Sleeper s net pension is $1,047.80. Ms. Sleeper s 2009 Social Security benefit is $1,347 per month. After the deduction of the taxes at the 26% rate, her net Social Security benefit is $996.78. Ms. Sleeper invested her share of the veterinary practice sale proceeds ($500,000) in an annuity. The current interest rate on these funds is 3%. As such, the gross distribution from the annuity is $15,000 per year or $1,250 per month. After the deduction of taxes at the 26% rate, her net investment benefit is $925 per month. Totaling the above figures, Ms. Sleeper s monthly income is $2,969.58. Plaintiff has a need for alimony.

 

With regard to plaintiff s monthly expenses, the judge concluded that "Ms. Sleeper s current Case Information Statement showed a reduced lifestyle of $4,382.00." Judge Claypoole then added "$1,113.20 for average credit card expenditure, $1,000 a month for vacations, $500 a month for items she has had to cut back on." According to the judge's findings, the reasonable monthly budget for Ms. Sleeper was $8,695 per month, leaving her with a deficit of $5,725 per month. The judge ordered that defendant was obligated to fund $5,000 net of this obligation, which considering the twenty-six percent tax bracket, requires defendant to pay $6,757 per month in alimony.

Concerning plaintiff s demand for equitable distribution of the Mt. Laurel property, the judge noted:

The property . . . was valued at $2,300,000 as of April 2008 and $470,000 in 1986 when the parties married leaving a value for equitable distribution of $1,830,000 which is subject to distribution and no portion of this amount is immune from distribution . . . . While the underlying real estate here was initially a premarital asset of Dr. Sleeper, the transformation of this property during the marriage, the substantial renovations to the property, the complete change in the character of the property, the construction of a new animal hospital and other structures, the responsibility of Mrs. Sleeper as a guarantor on the debt, the significant paydown of the principal of the mortgage, if not the complete payoff of the mortgage, Mrs. Sleeper s involvement in the construction process by providing assistance to Dr. Sleeper and Mrs. Sleeper s nurturing and homemaker role, leads the court to conclude that Mrs. Sleeper should receive an equitable interest in connection with this property.

The judge awarded retroactive pendente lite support and found that defendant "shall be responsible for 80% of plaintiff s counsel fees and costs and one-half of the expert fees incurred" because defendant "was unreasonable and did not act in good faith throughout the conduct of this litigation" and his conduct was "patently unreasonable."2 Additionally, the judge determined that Dr. Sleeper wasted $152,841.00 in marital assets on settling a sexual harassment lawsuit, "sexual surrogates" and "intimate women friends."

On appeal, defendant urges that the "entry of an obligation of alimony against [him] was contrary to fairness;" that the judge should have sua sponte appointed a guardian for defendant; that equity requires a new trial; and that he should not be obligated to pay alimony.

Our standard of review of an alimony award is narrow. We recognize that the trial judge has broad, but not unlimited, discretion in awarding alimony. Her discretion must take into account the factors set out in N.J.S.A. 2A:34-23(b) and case law defining the purpose of alimony. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff d in part, modified in part 183 N.J. 290 (2005). "[B]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Genovese v. Genovese, 392 N.J. Super. 215, 222 (App. Div. 2007) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Findings by the trial judge are "binding on appeal when supported by adequate, substantial, credible evidence." Ibid. Cesare, supra, 154 N.J. at 411-12).

We have carefully reviewed the record as well as Judge Claypoole's expansive findings of fact and conclusions of law, and we conclude that defendant's arguments are without merit. R. 2:11(e)(1)(E). We note that the judge carefully analyzed the statutory factors enunciated in N.J.S.A. 34:23-(b), and recognized the standard of living attained by the parties during marriage, see Innes v. Innes, 117 N.J. 496, 503 (1990), as well as the need to maintain that standard when resources are available. Aronson v. Aronson, 245 N.J. Super. 354, 364 (App. Div. 1991). We find no error in her award of alimony to plaintiff.

Defendant raises a number of issues regarding his income that were not raised at the time of trial and are not properly before us on appeal. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1972). He asserts that we should grant relief under Rule 4:49-1 and Rule 4:50 and order a new trial. Neither rule applies here. Any relief from the judgment is properly before the trial judge not this court for the first time, on appeal. See F.B. v. A.L.G., 176 N.J. 201, 207 (2003) ("The decision whether to vacate a judgment on one of the six specified grounds is a determination left to the sound discretion of the trial court, guided by principles of equity."); Quagliato v. Bodner, 115 N.J. Super. 133 (App. Div. 1971) (explaining that a motion for relief pursuant to R. 4:50-1 should be brought before the judge who signed the order sought to be vacated).

We affirm substantially for the reasons set forth in Judge Claypoole's thoughtful and thorough written opinion of March 25, 2009, as supplemented by her amended opinion of May 18, 2009.

A

ffirmed.

1 At trial it was revealed that Dr. Mirabella is a plastic surgeon who performed breast augmentation for a Ms. Tracy LaRue, an "intimate friend[]" of defendant s. This information was later considered by the judge when she determined that defendant wasted assets.

2 In this regard, defendant obstinately failed to comply with discovery orders, and the judge ultimately barred defendant from producing testimony or documentation as to his medical condition at trial. The record supports plaintiff's observation that "[d]efendant made an art form of non-compliance with Court Orders at the trial level." Furthermore, our review of the record leads us to conclude that defendant's selective memory was, at a minimum, incredible.