BONNIE D. CLARK v. KENNETH B. CLARK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5521-10T2

BONNIE D. CLARK,

Plaintiff-Appellant/

Cross-Respondent,

v.

KENNETH B. CLARK,

Defendant-Respondent/

Cross-Appellant.

___________________________________

November 16, 2012

 

Argued September 20, 2012 - Decided

 

Before Judges Axelrad, Sapp-Peterson and Nugent.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1669-10.

 

Robert J. Adinolfi argued the cause for appellant/cross-respondent (Adinolfi and Goldstein, P.A., attorneys; Mr. Adinolfi and Jamie E. Galemba, of counsel and on the b

riefs).

 

Gregory P. DeMichele argued the cause for respondent/cross-appellant (DeMichele and DeMichele, P.C., attorneys; Mr. DeMichele and Matthew T. Rooney, of counsel and on the briefs).

PER CURIAM

In this matrimonial matter, the parties each appeal from portions of the amended final judgment of divorce. Plaintiff Bonnie Clark argues the court should not have awarded defendant Kenneth Clark rehabilitative alimony, and challenges the quantum of the permanent alimony and child support awards. In his cross-appeal, defendant argues the court should have awarded more permanent alimony, retroactively increased the spousal support award, and required life insurance as security for alimony. Both parties claim they were entitled to counsel fees. We reverse and remand on plaintiff's appeal and affirm on defendant's cross-appeal.

I.

 

On May 17, 2010, plaintiff filed a divorce complaint against defendant. She also sought joint legal custody of the parties' children with shared residential custody, child support, equitable distribution, and counsel fees. Defendant filed an answer and counterclaim, seeking alimony and other relief similar to that sought by plaintiff. Plaintiff answered the counterclaim.

On September 16, 2010, the court executed a pendente lite consent order that, among other things, established a parenting time schedule and provided plaintiff would pay defendant $500 per week in temporary support. The parties resolved by way of stipulations matters related to equitable distribution, parenting time, aspects of child support, and college costs. The court conducted a bench trial on April 18, 25, and May 2, 2011, limited to custody, defendant's earning capacity, alimony, and remaining child support issues. On June 9, 2011, the court issued a final judgment of divorce incorporating the parties' prior stipulations, and rendered its oral decision on the tried issues. On July 19, 2011, the court signed the amended final judgment of divorce (FJD).

Plaintiff appealed and defendant cross-appealed. By order of June 27, 2012, we denied plaintiff's motion requesting a stay of the rehabilitative alimony provisions of the FJD and a limited remand to determine whether defendant's rehabilitative alimony payments should continue.

II.

The parties married on November 5, 1988, and have three children, sons born in March 1991 and February 1995, and a daughter born in September 2003. As of trial, their children were in college, tenth grade, and second grade, respectively. Plaintiff, forty-seven, was the Vice-President of Communications for the Phillies, and earned over $250,000 in 2010. Defendant, fifty-three, was living with his parents in Bala Cynwyd, Pennsylvania, and was working approximately forty hours per week at a retail carpet business earning $10 per hour. Both parties were healthy, with no reported physical ailments.

The parties lived in Cherry Hill throughout much of the marriage, and the trial record shows they enjoyed a middle-class to upper middle-class lifestyle, with expenses totaling between $9000 and $12,000 per month. The family took yearly vacations to places such as Florida, Vermont, and the Caribbean, and spent nearly $6000 every summer to rent a shore house for four weeks. They dined out approximately once a week at restaurants that ranged from Olive Garden to places "a little more upscale," and shopped at stores like Macy's, Loehmann's, and Nordstrom's.

Defendant held multiple jobs during the marriage, switching positions frequently after being laid off. He also struggled with drug-related issues throughout the marriage. For instance, in July 2003 he was fired from Office Depot where he had been earning approximately $34,000 per year as a pressman. Although the reason for his discharge is unclear, it was evidently marijuana-related. Defendant subsequently obtained treatment from Alcoholics Anonymous, and has purportedly "been straight" since that time.

Plaintiff worked continuously throughout the marriage other than taking maternity leave. She experienced steady salary increases throughout her career and became the family's sole wage earner after defendant was terminated from Office Depot. At the time of defendant's discharge, plaintiff was pregnant with their youngest child. Prior to 2003, the couple employed nannies and day care for their children while they worked. The parties decided that after the baby's birth defendant would stay home and care for the child until she was ready to enter school. Accordingly, defendant remained a stay-at-home father until the parties separated in September 2010. Defendant began working for a friend at Kelley Karpets, a business located in Pitman, in March 2011.

During trial, plaintiff agreed to the parties having joint legal custody of the children but requested she be designated the parent of primary residence. Plaintiff admitted she had enjoyed "an upward trend" in earnings during the marriage. She did not believe defendant made any sacrifices or contributions to further her career, because in her view defendant had never had a career, only a series of jobs. Plaintiff conceded, nonetheless, that defendant had done "a good job" caring for the children when she was working.

Plaintiff claimed her expenses had increased since the parties' separation because she was incurring costs for items such as housekeeping and childcare, in order to maintain the household on her own. According to plaintiff, because her current position frequently entailed travel and long hours, she had to rely on family and paid help to manage her obligations.

Plaintiff questioned several expenses listed on defendant's case information statement (CIS), and contended defendant did not actually need her financial help. Plaintiff emphasized that defendant never filed any support applications, and explained she only agreed to pay him $500 per week during the pendente lite period because she wanted "him out of the house for the safety" of her children and herself. She suggested defendant was being paid "under the table," and claimed defendant's former salary at Office Depot showed he was capable of earning significantly more than he was making at Kelley Karpets.

Plaintiff presented vocational expert Lynn Levine, Ed. D. Dr. Levine conducted a vocational evaluation of defendant, and summarized her findings in an October 7, 2010 written report that was admitted into evidence. Dr. Levine discussed defendant's personal background, education, prior work experience, and earning history. She related that defendant graduated from high school in 1976 with grades in the C-minus range. He eventually entered the Philadelphia Offset Printing School, and in 1978 became qualified to become a printing pressman. However, defendant did not subsequently take additional classes, and never acquired any computer-related skills such as keyboarding, e-mailing, or using fax machines.

Dr. Levine acknowledged that the number of printing jobs was declining, but was optimistic about defendant's reentry into the printing industry. She explained that the increasing number of retirees, coupled with the simultaneous decrease in the number of new workers entering the field, placed defendant in an advantageous position based on his age and prior employment experience. When asked whether defendant would be considered a desirable applicant, she responded:

I believe so. He's very verbal. He presents well. And he told me that in many cases the equipment that he was trained on is still used. And this is an industry where there is good transferability of skills. What he does not have is experience in digital printing . . . . I went and I found a lot of opportunity for people to learn digital printing through webinars, [and] computer based training programs. . . . [H]is lack of experience in digital printing is something that could be overcome within a reasonable amount of time.

 

Dr. Levine discussed the tests she performed and the results. Considering defendant's expressed interest in driving as an alternate occupation to returning to work as a printing press operator, Dr. Levine concluded, as a second choice, defendant could attend CDL training and become a commercial driver, which had a strong job market. Defendant's earnings as a commercial driver would be comparable to what he could make if he returned to printing. Training to become a driver cost between $1500 and $4000 per year. She did not believe a misdemeanor conviction for drugs from seven years prior would rule out that option. Dr. Levine provided a third option, a fallback position, as a customer service representative because of defendant's good verbal skills.

In Dr. Levine's opinion, defendant had made "very, very few" efforts to obtain work, and was making less at Kelley Karpets than he was capable of earning. Overall, Dr. Levine concluded that in the printing industry or as a truck driver, the reentry salary, considering defendant had not been employed recently and needed some upgrading of skills, would be in the low to mid $30,000 range. As a customer service representative, his entry earnings would be mid $20,000, as a bottom range. She reported that defendant's projected income should rise to the low to mid $40,000 range within three to four years of successful experience, given his prior work history in the printing industry.

Defendant related that his highest earning year was in 2002, when he worked at Office Depot earning approximately $34,000 per year. He conceded that at Kelley Karpets he was earning less than he had at any prior job since 1989. As to his domestic contributions, defendant asserted that he shouldered primary responsibility for the care of the children and home throughout the entire marriage because of plaintiff's work commitments. He explained that plaintiff's current position with the Phillies was particularly demanding, stating:

she'd go in the mornings at 9:00, and she'd go to . . . all the home games, there's 162 games a year. . . . [S]he had to be at all 82, 81 home games a year. Some of them were day games, but most of them were night games, and she had to be there for the press conference after every game, and she wouldn't get home until 11:00.

. . . .

In 2009, I remember she was away, with spring training, winter meetings, road trips, when she was away from the family, I counted 94 days a year.

 

Defendant testified he had lived with his parents since the parties separated in September 2010. As a result, his CIS did not reflect any shelter-related expenses such as rent, homeowner's insurance, or utilities. He anticipated using his $75,000 in equity from the marital home to purchase a home in the Cherry Hill area closer to his children. Defendant hoped to purchase something comparable to the marital home, which the parties stipulated was worth approximately $240,000. However, defendant provided no testimony or information about any potential property or any projected housing expenses. He merely testified to the monthly expenses of the marital home as reflected on his CIS: a $596 mortgage payment; $603 for property taxes; $60 for homeowner's insurance; and $509 for utilities. Defendant also testified that although plaintiff's CIS did not list a joint or current house cleaning expense, he anticipated a monthly expense of $200 for such a service. Moreover, although it was not part of the marital lifestyle to have professional lawn care as he always did it himself, he anticipated an expense of $250 per month.

Defendant also stated he would "like to be able to set aside" $500 per month for his retirement plan, which he did not list on his CIS because he had not "actually set the money aside yet." Defendant further testified that he owned a 2004 Nissan Quest "in fair condition" with l00,000 miles. He anticipated having to replace the car "in the next year or two or in the near future." Without reference to any specifics, defendant anticipated "approximately, between $300 and $400 a month in a car payment." Referring to his health insurance plan from work, defendant expected to pay $372 per month for replacement coverage for himself when he was no longer on plaintiff's policy. None of these items were reflected in defendant's CIS.

Defendant thus increased his total monthly budget listed on his CIS for "current lifestyle" expenses for shelter, transportation, and personal expenses for himself and his three children by $3431, from $3658 to $7089.

On cross examination, defendant acknowledged he presented no copies of any rental agreements, potential mortgages, or real estate taxes for properties currently on the market. Defendant also performed the lawn care and the bulk of the housecleaning, even when he was working full time during the period of l989 to 2003. With respect to retirement planning, defendant acknowledged that as part of his equitable distribution agreement with plaintiff, he would be receiving about fifty percent of her various retirement accounts.

Defendant's CIS included a $272 monthly expense for alcohol and tobacco, the same amount as was listed as the joint expense. Defendant acknowledged being involved in several alcohol and marijuana-related incidents and attending a treatment facility for drug and alcohol dependency and AA in 2003. Defendant also carried the same figure of $833 per month for vacations that had been spent for family vacations of five weeks at Long Beach Island as his current expense, because he "want[ed] to go down the shore and rent the house like we were doing for the last five years down there." Defendant had not gone on any vacations with the children since September 2010, even though they were off for various school holidays. Defendant also acknowledged his budget included some of his children's expenses, and conceded he would not need the full amount requested if he were not granted physical custody of the children.

Defendant further acknowledged that almost every year he worked since l989 he earned more than the previous year, and from 1990 to 2003, he was earning at least $25,000 per year. Defendant also discussed his job search efforts and his future plans. He claimed he began his job search in 2009, when their youngest child was in first grade. Defendant testified he contacted four printing press companies and two car dealerships, and submitted a total of ten applications. Defendant said he relied on "word of mouth" referrals, and did not look at online employment sites because, in his words, "I don't do the computer." He stated his prior resumes had been handwritten, but he was "trying to learn" how to use computers. When asked what skills he required to obtain re-employment in the printing field, defendant asserted that he already possessed the necessary training and did not need to update his skills.

Defendant began working at Kelley Karpets on March 8, 20ll, a few weeks before trial. He did not intend to immediately seek another position, and planned to stay at Kelley Karpets. As of the April 25, 20ll trial, defendant had received about $14,000 in pendente lite spousal support from plaintiff pursuant to their agreement that she pay him $500 per week.

Don Barton, the owner of Kelley Karpets, testified on defendant's behalf. He was personal friends with defendant, and had known him since junior high school. He denied paying defendant "under the table," as plaintiff had suggested. Barton also described defendant's role at Kelley Karpets, and stated that he did not expect to pay defendant significantly more than his current earnings. Barton was not optimistic about defendant's prospects for advancement within Kelley Karpet, in part, because defendant lacked computer skills.

The court awarded defendant, among other things, $942 per week in permanent alimony, and an additional amount of $212 per week in rehabilitative alimony for four years. The court also calculated child support in accordance with the parties' stipulations, which agreed to the use of the shared guidelines worksheet for child support, and designated defendant the parent of alternate residence with at least 120 overnights per year. The court deviated from the guidelines, however, setting defendant's child support obligation at $50 per week. The court declined to award counsel fees to either party. Both parties appealed.

On appeal, plaintiff argues the court erred in: (1) awarding defendant rehabilitative alimony; (2) the amount of the permanent alimony award; (3) deviating downward from the child support guidelines; and (4) denying plaintiff counsel fees. In his cross-appeal, defendant challenges the permanent alimony award as insufficient, in particular, arguing the court should have reduced plaintiff's monthly budget for calculating alimony. Defendant also asserts he was entitled to alimony arrears from the date of plaintiff's complaint and plaintiff should have been compelled to obtain life insurance to secure her alimony obligation. He further asserts as error the court's denial of a counsel fee award to him.

III.

A. Rehabilitative Alimony

Plaintiff first asserts as error the court's award of rehabilitative alimony to defendant because defendant neither requested it nor submitted a rehabilitation plan. Plaintiff also challenges the award as inappropriate because defendant has shown no interest in rehabilitating himself. Alternatively, plaintiff challenges the quantum of the award as arbitrary, contending the court did not impute sufficient income to defendant. Plaintiff also contends the court should have included a provision within the judgment terminating the award if defendant does not make satisfactory progress toward rehabilitation. Based on our review of the record and applicable law, we are satisfied the court's award of rehabilitative alimony to defendant was arbitrary and was not supported by the record. Accordingly, we reverse that ruling, and direct that the $212 per week in rehabilitative alimony paid by plaintiff to defendant pursuant to FJD be credited against her permanent alimony obligation.

The judge agreed with Dr. Levine that defendant's job search was inadequate, his efforts to find a job in the printing field had been "too limited," and he was "underemployed" at Kelley Karpets earning $20,000 a year. However, the judge disagreed with Dr. Levine's assessment of what defendant could earn if he returned to the printing industry, finding it necessary to discount the figures to account for defendant having to learn new skills and for the difficulties he would encounter in competing in the computerized printing industry.

The judge similarly discounted Dr. Levine's professional driving income projections, noting that defendant had no prior experience in the field, and that such a position was incompatible with the parties' shared parenting plan. The judge thus imputed $25,000 per year to defendant as income he was currently capable of earning for the purpose of calculating alimony and child support. He believed defendant could earn approximately $37,500 per year within four years, and thus used that figure in determining the future duration and levels of alimony.

After examining the parties' budgets and considering such factors as the parties' respective needs, their abilities to pay, and their contributions to the marital standard of living, the judge found defendant was entitled to both permanent and rehabilitative alimony. In assessing defendant's budget, though recognizing that defendant presented no proofs regarding potential shelter expenses, the judge found he was entitled to move from his parent's house to a home closer to his children. The judge "believe[d] [] defendant should seek to obtain a smaller house or apartment . . . in terms of determining the expenses," but believed there was a "paucity of proof presented by [] plaintiff" that "the amount of rent of approximately $1,000 would get [] defendant to the appropriate location." Though recognizing that defendant presented no proofs on the subject other than the figures attributable to the existing marital home, the judge "in making an equitable alimony award," believed it was appropriate to adopt all of those expenses, totaling $1550 per month. He also allowed each party $100 for maintenance and $100 for repairs to their respective homes.

The judge further reasoned the following with respect to the car payment expense:

The testimony was that [defendant] would like to make a car payment of $350. The plaintiff objected to that saying that he has a 2004 Nissan Quest . . . which is paid off, and therefore should not need a car payment. However, the Nissan Quest has 100,000 miles on it and even if the parties keep the cars for ten years it's approaching that period of time, so the Court believes that some car allowance is appropriate. The defendant I believe asked for the same car allowance given in the plaintiff CIS, $742 per month. The plaintiff's car is a work car, paid for by her work. The Court feels that figure is inappropriate. Accordingly the Court will put for the car payment the figure requested by the defendant which the Court believes to be reasonable of $350 per month.

 

With regard to vacations, the judge reduced both parties' budgets from $833 per month to $666 per month because they will be taking a four-person vacation, not a five-person vacation. In doing so, the judge noted that the testimony was that the shore house cost $6000, so the $833 marital lifestyle vacation expense presumably included money for other vacations. The judge determined that $500 per month was a reasonable contribution towards an IRA, and allowed both parties' expenses to reflect that amount. After discussing other corrections and alterations, he found defendant's total budget to be $5698 per month and plaintiff's budget to be $14,164.

In analyzing the statutory factor of the "time and expense necessary to acquire sufficient education or training," N.J.S.A. 2A:34-23(b)(8), the judge observed that defendant "clearly needs training . . . to catch up with developments in printing since he left the industry in 2003, or to learn [a] new career such as truck driving or customer relations." The judge noted there was "no proof of the cost of such training." The judge also found "defendant has to find better employment than he has now, at least if he wishes to support himself in . . . anything approximating the marital lifestyle."

The judge acknowledged that defendant had not set forth a rehabilitation plan or offered any proofs regarding the training he would have to undergo. Nonetheless, the judge referred to his prior finding that defendant was underemployed, and concluded it would be "equitable" to provide defendant with rehabilitative alimony for four years. The judge reasoned that "the rehabilitative alimony inquiry in [this] case was not on the particular cost of training but on the need for some period of time for the formerly dependent spouse to re-enter the job market and raise [his] level of income . . . by training and experience."

Our standard of review of a bench trial is guided by well-established principles. We are required to accord deference to the Family Court's fact-finding because of the court's "special expertise" in family matters and substantial weight to "the judge's observations of the parties' demeanor, comprehension and speech and to the fact that the trial judge had the distinct advantage of observing the demeanor of the witnesses and a better opportunity to judge their credibility than a reviewing court." Cesare v. Cesare, 154 N.J. 394, 413 (1998); Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).

Nevertheless, we owe no special deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007). We are compelled to reverse if the trial court abused its discretion, failed to consider all the controlling legal principles, or reached a determination that "could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole." Heinl, supra, 287 N.J. Super. at 345 (citation omitted). See also Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000). Moreover, if the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008).

Furthermore, "[t]rial judges are under a duty to make findings of fact and to state reasons in support of their conclusions." Heinl, supra, 287 N.J. Super. at 347; R. 1:7-4(a). "'Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.'" Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). "Naked conclusions do not satisfy the purposes of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (l980).

N.J.S.A. 2A:34-23(b) authorizes a family court to "award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party." The court has great latitude in crafting an appropriate alimony award. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part on other grounds, 183 N.J. 290 (2005). Nonetheless, that discretion is not without limits, and the court's assessment must be guided by the following thirteen factors:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(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 . . . and the opportunity for future . . . income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party . . . ;

(10) The equitable distribution of property . . . ;

(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.

[N.J.S.A. 2A:34-23(b).]

"The purpose of rehabilitative alimony is to exert fair and compassionate pressure upon a [dependent spouse], absent unusual circumstances, to develop marketable skills and obtain employment which will enable [him or] her to contribute, in whole or in part, to [his or] her support." Kulakowski v. Kulakowski, 191 N.J. Super. 609, 611 (Ch. Div. 1982). Unlike permanent alimony, rehabilitative alimony is short-term and terminates once the dependent spouse is capable of self-support. Cox, supra, 335 N.J. Super. at 474-75. Because the objective of rehabilitative alimony is to enhance the earning capacity of the dependent spouse, a court's assessment must focus upon "the ability of a dependant spouse to engage in gainful employment, combined with the length of the marriage, the age of the parties, and the spouse's ability to regain a place in the workplace[.]" Ibid. (citations omitted).

As we noted earlier, plaintiff challenges the rehabilitative alimony award as not requested in defendant's counterclaim and contrary to the express requirement of N.J.S.A. 2A:34-23(d), which requires a "plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame." See also Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992) (where the Family Part judge denied the defendant's request for rehabilitative alimony based on her failure to "sustain the necessary burden of proof to justify the court in granting the relief sought").

Defendant did, in fact, generally request alimony pursuant to N.J.S.A. 2A:34-23 in his counterclaim. It is not fatal to his claim that he did not specify the type of alimony he was seeking. We are also satisfied he was entitled to rely on the evidence presented by Dr. Levine. Nevertheless, defendant still had the burden of proving his entitlement to rehabilitative alimony. We are not persuaded the record supports either an award of rehabilitative alimony to defendant or the amount or duration ordered by the court.

The goal of rehabilitative alimony is to "produce a self-sufficient individual, benefiting not only the recipient of the alimony, but the person paying the alimony." Wass v. Wass, 311 N.J. Super. 624, 629 (Ch. Div. 1998) (citation omitted). The court's rehabilitation award was tied directly to its finding that defendant was underemployed, but the court also found defendant's job search was inadequate. Perhaps defendant's failure to present a rehabilitative plan was indicative of the fact that he had no interest in "find[ing] better employment . . . to support himself in . . . anything approximating the marital lifestyle." It certainly appears that defendant was comfortable receiving the $500 per week pendente lite support from plaintiff from September 2010, and only got the job at Kelley Karpet a few weeks before trial. Defendant admitted he had no desire to enter the printing business, did not need to be retrained, and planned to stay at Kelley Karpets. The owner, a friend of his, candidly testified he was not optimistic about defendant's prospects for advancement there, in part because defendant lacked computer skills.

Dr. Levine's evaluation provides no support for defendant's claim of rehabilitative alimony because his own conduct and testimony belies any intent to improve or develop marketable skills in any of the suggested vocations. It is undisputed defendant is underemployed, but that appears to be his choice more than a lack of skill or a need for rehabilitation assistance from his former spouse. Defendant has skills and experience in the printing industry and has a significantly greater earning capacity than the $20,000 a year job at Kelley Karpets but has no interest in obtaining other employment.

In Turner v. Turner, 158 N.J. Super. 313, 318 (App. Div. 1978), we considered the purpose of awarding rehabilitative alimony and the goal of achieving "self-fulfillment" for the dependent spouse. We held that if alimony causes a spouse to live "a life of physical and mental indolence," then alimony is actually an "impediment" to the dependent spouse. Id. at 315. The record of defendant's work history and future intentions reflects that he does not have an interest in achieving self-fulfillment through employment so as to contribute to his support. Thus, he is not a candidate for rehabilitative alimony.

We are also convinced the court's decision to rehabilitate defendant in fields he was not interested in entering was arbitrary. To make matters worse, the court set forth no methodology in the record for the monetary award of $212, totaling about $44,000 for the four-year period, and it is not based on the evidence presented at trial.

Dr. Levine testified that the majority of printing companies would provide on-the-job training or company sponsored seminars or programs. As such, there would be no cost for the training. For commercial driving, she testified that many training programs ranged from $1500 to $3500 and the maximum cost of training would be $4000. Defendant was not interested in employment in either of these fields, but even if he was, the only evidence of his maximum out-of-pocket expense was $77 a week.

Kulakowski is inapposite. There the Family Part judge focused on the need for some period of time for the formerly dependent spouse to re-enter the job market and raise her level of income [] by training and experience rather than the cost of rehabilitation. Id. at 612-14. The judge, however, specifically acknowledged the cost of the dependent spouse's schooling, which she needed to re-enter a new field. Id. at 612. Here, if the defendant were interested in doing so, which he is not, he would be re-entering the printing field that he had worked in for several years, in which he stated that he did not need to update his skills.

The court's explanation for imputing current annual income of $25,000 to defendant and $37,000 after four years was:

The $25,000 figure is actually in the overall range provided from the expert for all three professions. The $37,500 figure for after four years is a discounting of the mid 40s figure that the expert provided and also happens to be similar to the top earnings that the defendant was earning prior to his unemployment allowing some allowance for inflation.

 

We note that the "depressed entry earnings" of $25,000 was the lowest figure provided by Dr. Levine, representing the third "fallback" option of a customer service representative. The judge provided no explanation why he chose this figure.

We also query the basis for the court's discounting of Dr. Levine's conclusions as to defendant's earning capacity in the printing industry. The court found the field in which defendant had been trained was essentially becoming "obsolete" and "there are limited opportunities to resume prior printing work." Although there was general testimony that the market was declining, no testimony or evidence was presented by either party of those facts.

The court also seemed to give great weight to the fact that defendant would have a lot to learn in the computerized printing industry and would have difficulty competing in that market. As previously discussed, however, the uncontradicted testimony of Dr. Levine was that defendant would not have much difficulty re-entering that field because of the lack of interest by younger people and could work as a digital press operator and learn digital printing skills while employed.

As we are remanding for a reevaluation of the quantum of the permanent alimony award, the court should reevaluate its imputed income figures attributed to defendant. The court should reassess whether to adopt Dr. Levine's imputed income figures for defendant of $30,000 present annual earnings, increased to low to mid $40,000 per year within three to four years. The court should also provide detailed findings for its ruling.

 

 

B. Permanent Alimony

Plaintiff concedes that permanent alimony was appropriate but challenges the quantum of the award of $942 per week. According to plaintiff, the court erred in determining defendant's post-divorce budget and improperly relied on "equitable" considerations instead of defendant's demonstrated needs. By contrast, defendant contends the alimony award is too low. He concedes the amount will cover his anticipated monthly costs, but complains that he will not have enough remaining each month to handle unanticipated expenses or to build savings.

We are not convinced defendant carried his burden of providing the court a factual basis for his budget and needs, and as a result, the court incorrectly calculated an unduly high permanent alimony award. We agree with the court that defendant is entitled to move out of his parents' house and locate to a home closer to his children. However, simply because the marital home for five family members is valued at $240,000 does not mean that defendant, the parent of alternate residence, cannot find a reasonably comparable home for himself at a lower cost and a lower monthly payment. In fact, the court recognized that defendant should consider a smaller house. The court also commented on defendant's failure to provide any proofs whatsoever regarding projected shelter expenses. Nonetheless, the court summarily dismissed plaintiff's suggestion that defendant could find adequate rental housing for $1000 a month and arbitrarily adopted as defendant's expenses the majority of the shelter expenses attributable to the marital home. That was error.

We also find problematic the court's conclusion that "it is appropriate for [the] defendant to save for retirement" in its alimony calculation, and decision to allow in each party's budget a $500 per month figure. That was not an expense listed in defendant's CIS and, as the court recognized, defendant received half of the retirement and investment accounts of the parties under the FJD. Another example of an "equitable" consideration and another "wish list" item not contained in defendant's CIS, was a $350 per month expense for a car payment. Defendant testified his 2 004 Nissan Quest had 100,000 miles on it and generally stated there were issues with the car's transmission. When asked on direct if he anticipated having to replace the car "in the next year or two or in the near future," defendant responded that he "would have to get another car." He provided no time frame or price range, and the $300 to $400 monthly payment range appeared to have come out of thin air. Moreover, even if the parties were to keep the car for ten years, the trial took place in 20ll, and the car was a 2004 model so it was not "approaching that period of time" for replacement, as found by the court.

The vacation expense is another problematic issue. Defendant admitted he took no vacations with the children from September 2010 through trial in April 2011 and provided no testimony or evidence that he had booked a place in Long Beach Island in the summer for himself and the children. In fact, he presented no evidence as to his anticipated vacation from Kelley Karpets and his ability to take the children down the shore. Obviously, he would not be able to rent a house for the extended period that the parties had rented a summer place when he was unemployed and able to remain there with the children while plaintiff traveled to her work commitments.

Yet, again as a "wish list," defendant asked for the same $833 per month as a vacation expense as allotted during the marriage. The court divided it proportionally by four persons rather than five, reducing it to $666 per month. Defendant failed to demonstrate this amount had any basis in actual need.

Defendant has the burden to establish need for alimony based on the statutory factors. "Judges must be vigilant in providing for 'needs' consistent with lifestyle without overindulgence." See Strahan, supra, 402 N.J. Super. at 308 (internal quotation marks and citation omitted) (referring to the "Three Pony Rule" in child support cases). Defendant failed to present proper evidence of legitimate expenses upon which the court could assess his needs and calculate an appropriate amount of alimony. We take no position on the proper alimony award. We do find it interesting, however, that plaintiff appeared to have sufficient income from the consent pendente lite support obligation and his earnings to cover the total expenses listed in his CIS. Granted, the CIS did not cover shelter expenses, but we note that the court did not accept all of the figures defendant listed in his CIS in calculating his budget for alimony purposes.

Nevertheless, because we are persuaded the court abused its discretion in crafting the award, we remand for reconsideration of permanent alimony, with particular analysis on the items of defendant's shelter, vacation, and transportation expenses. Cox, supra, 335 N.J. Super. at 473; Heinl, supra, 287 N.J. Super. at 345. On remand, the court is not precluded from considering the actual expenses incurred in these three categories.

We are not convinced the court erred as a matter of law in including the $500 per month IRA savings component. See Glass v Glass, 366 N.J. Super. 357, 377-78 (App. Div.), certif. denied, 180 N.J. 354 (2004) (surveying cases which permitted retirement savings as part of alimony award). Moreover, contrary to plaintiff's assertion, the fact that defendant received half of her investment accounts in equitable distribution does not warrant a different outcome, because "equitable distribution determinations are intended to be in addition to, and not as substitutes for, alimony awards." Steneken, supra, 183 N.J. at 299. Nevertheless, there was not a great deal of trial testimony on the subject of the parties' savings habits during the marriage. On remand, the court should explore that issue further and whether, in fact, defendant began putting the funds into his IRA after the FJD.

C. Child Support

We also find error in the court's child support award, and remand for calculation in accordance with the guidelines. The parties stipulated that child support would be calculated in accordance with the shared parenting worksheet of the guidelines. College costs were to "be shared in proportion to their respective income[s] after loans, grants, scholarships and other aid is considered."

Based on the court's initial child support calculations, defendant would have had to pay plaintiff $80 per week for the three children. However, the court then deviated from the guidelines, and reduced defendant's obligation to $50 per week. That amount was comprised of $15 for the parties' eldest child, who was at college, and $35 for the two younger children. The court did not fully explain the basis for the amounts it ordered, but reasoned:

[D]espite the parties' stipulations and even honoring them the Court actually has a fair amount of discretion in this area because this is a high income case and there's a third child . . . who is home only part of the time and whose college expenses will not pay for all of his expenses for when he is home.

 

Our State strongly favors the enforcement of marital agreements. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Accordingly, "when the parties and their attorneys have bargained at arm's length and there is no showing of unfairness, the trial court should not supply terms which the parties obviously considered and yet did not adopt." Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970).

Here, there was no basis for the court to depart from the clear terms of the parties' stipulations. Defendant has not alleged that the terms were unfair or obtained through fraudulent means. The disparity of the parties' incomes was well-known from the inception of this matter, as was the fact that the eldest child was attending college. Defendant certainly could have negotiated terms that accounted for these facts. The fact that the parties did not include such considerations in the stipulation militated against the court's downward adjustments. Ibid.

Moreover, even if the court had a reason to depart from the parties' agreement, there was no basis for the downward deviation in this case. A child support order that is based on the guidelines is "rebuttably presumed to be correct." Lozner v. Lozner, 388 N.J. Super. 471, 479-80 (App. Div. 2006). A court may not deviate from those calculations unless good cause is shown. Id. at 482. The guidelines authorize deviations in extremely high parental income situations. Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2560 (2013). However, the guidelines specify that the resulting child support order in such cases represents the minimum that should be ordered. Ibid.

Child support belongs to the child and not the custodial parent. See Pascale v. Pascale, 140 N.J. 583, 591 (1995) (holding that custodial parent cannot waive child support). Therefore, the fact that plaintiff was a high earner should inure to the benefit of the parties' children, not defendant.

Accordingly, we reverse and remand for a recalculation of child support in accordance with the parties' stipulations and child support guidelines.

 

D. Counsel Fees

Both parties contend the court erred in denying their respective requests for counsel fees. Plaintiff claims the court should have granted her request because even though she earned more, defendant had more disposable income than she did. Plaintiff also contends that defendant acted in bad faith by contesting custody and in rejecting an earlier offer of settlement. Defendant contends that he was entitled to counsel fees because he prevailed on several issues and because plaintiff has the greater ability to pay. We are not persuaded by either of these arguments.

In determining whether a counsel fee award is merited, we consider several factors, including the requesting party's need, the other party's financial ability to pay, and the requesting party's good faith in instituting or defending the action. Williams v. Williams, 59 N.J. 229, 233 (1971). Similarly, the relevant Court Rule provides that a court may award counsel fees in a family matter after due consideration of the following factors:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

See also R. 4:42-9(a) (enumerated limited instances when counsel fees are available).

As of trial, defendant and plaintiff had respectively accumulated $24,060 and $36,143 in legal fees. Of those amounts, defendant had paid $7205 and plaintiff had paid $13,973. The court analyzed the parties' arguments with regard to the factors set forth above, and concluded that each party should pay their own fees.

As to the financial circumstances of the parties and their ability to pay, the court noted that defendant would be receiving a substantial share of the marital assets in equitable distribution, from which he could pay his fees. The court next addressed plaintiff's bad faith arguments, and rejected plaintiff's contention that defendant had unreasonably litigated custody:

[T]he Court was not entirely sure when the parties said they were going to go off and resolve who was going to have custody, who custody was going to go to, nor was the Court sure who it was going to award custody to if this remained a contested issue . . . . in fact the resolution of custody the parties have reached [has] probably increased the net costs of the household.

 

As to her claim that defendant rejected in bad faith an offer to settle, the court found:

The plaintiff also . . . argues that . . . there was [a settlement] offer of more money than the M.E.S.P. suggested, the Court frankly does not know the quantities of either of those offers . . . . Judging from the litigative position of the plaintiff as to what they thought was appropriate I suspect that the Court's order is higher than [what] the plaintiff was offering.

 

In any case the Court has no information as none has been provided by the parties at this time.

We will not reverse a counsel fee ruling unless the parties can show "an abuse of discretion involving a clear error in judgment." Tannen v. Tannen, 416 N.J. Super. 248, 285 (App. Div. 2010), certif. denied, 208 N.J. 409 (2011). We are satisfied the court considered the appropriate factors and provided a reasonable basis for its findings of fact. The parties' arguments otherwise merely disagree with the result.

Defendant, for instance, stresses plaintiff's higher earning capacity, but does not dispute the court's finding that defendant had the ability to pay his own fees. That he happened to prevail on certain issues is also not dispositive. See Pressler & Verniero, supra, comment 4.1 on R. 5:3-5 ("The rule also makes it clear that, if 'deemed just,' an award of attorney's fees may be made in favor of any party, whether or not prevailing.").

Similarly, plaintiff has not pointed to any specific act or wrongdoing on the part of defendant to support her claim that defendant only contested custody "to use as a bargaining tool." Ultimately, the trial court was in the best position to assess the conduct of the parties, to which we defer. See Cesare, supra, 154 N.J. at 412-13. We take no position as to the award of counsel fees on remand.

E. Cross-Appeal

Defendant complains that the court erroneously departed from the parties' agreement in determining plaintiff's monthly budget. More specifically, the parties had stipulated that they would pay for college costs in proportion to their respective incomes. According to defendant, the court should therefore have reduced plaintiff's budget "by the raw dollar amount corresponding to said percentage." The precise nature of the error is not clear because defendant provides only limited argument on the issue, but presumably defendant's complaint is that a reduction would have generally increased plaintiff's support obligations. We are not persuaded by this argument.

We first note that defendant never raised this issue before the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973) ("our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available . . . ."). Nevertheless, the parties' agreement regarding college costs did not specify what impact, if any, the parties' contributions would have on their other support obligations.

Defendant next argues the court should have increased plaintiff's pendente lite spousal support obligations, retroactive to the date of the divorce complaint. This argument is without merit.

First, as with the prior error, defendant does not show where in the trial record he requested this retroactive relief. Moreover, aside from citing cases permitting such relief, defendant does not explain why he was entitled to a retroactive increase. Case law, however, does not automatically entitle defendant to a retroactive increase. Rather, the determination lies within the discretion of the family court. Martindell v. Martindell, 21 N.J. 341, 356 (1956); Brazzel v. Brazzel, 345 N.J. Super. 19, 23 (App. Div. 2001); Jacobitti v. Jacobitti, 263 N.J. Super. 608, 617 (App. Div. 1993).

Whether an increase is necessary depends on such considerations as the extent to which the supported spouse was able to support him or herself during the pendency of the divorce proceeding. See Jacobitti, supra, 263 N.J. Super. at 617-18 (retroactive increase needed to reimburse dependent spouse for debts incurred pretrial). In this case, defendant has not explained or identified any basis for finding that the pendente lite award was inadequate. It is defendant's obligation to identify the specific parts of the record that support his argument. 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011) ("Parties are required to make an adequate legal argument."). His failure to do so mandates a rejection of his claims.

Defendant next claims the court should have ordered plaintiff to obtain life insurance to secure her support obligations. Pursuant to N.J.S.A. 2A:34-25, a court may, but is not required to, order "either spouse or partner to maintain life insurance for the protection of the former spouse, partner, or the children of the marriage or civil union in the event of the payer spouse's or partner's death." However, as the court specifically noted, neither party raised the issue below:

Lastly, there's been no reference between the parties as to life insurance to secure any of [plaintiff's] obligations. However, as I said the permanent alimony and . . . the rehabilitative alimony do[] terminate on the death of either party, so I will leave it to the parties, if they wish, to work out any agreement regarding life insurance. There's no representations been made to this Court.

 

Defendant may raise this issue during the permanent alimony remand.

We reverse the court's award of rehabilitative alimony and direct that plaintiff be given a credit against her permanent alimony obligation for such payments; we reverse and remand for recalculation of permanent alimony and child support; and we affirm as to all other issues. We do not retain jurisdiction.