SHAWN TOMINUS, II v. JAIME TOMINUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0202-12T1

SHAWN TOMINUS, II

Plaintiff-Respondent,

v.

JAIME TOMINUS,

Defendant-Appellant.

___________________________________

October 18, 2013

Argued September 16, 2013 Decided

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2705-11.

Marc J. Rogoff argued the cause for appellant.

Elizabeth A. Smith argued the cause for respondent (Dennigan Cahill Smith, L.L.C., attorneys; Ms. Smith, of counsel and on the brief).

PER CURIAM

Defendant Jaime Tominus challenges several provisions of a final judgment of divorce entered by the Family Part on August 1, 2012. For the reasons that follow, we affirm in part and reverse in part.

I.

The parties were married on October 17, 1997. The parties had three children, plaintiff filed a complaint seeking dissolution of the marriage, on the ground of irreconcilable differences. The Family Part judge conducted a trial in the matter in June 2012.

On August 1, 2012, the judge placed her findings of facts and conclusions of law on the record. The judge rejected defendant's application for permanent alimony, and instead awarded defendant limited duration alimony of $408 per month for eight years. The judge ordered the equitable distribution of plaintiff's pension contributions, which it valued at $1,811. In addition, the judge ordered plaintiff to pay $87 a week in child support.

The judge declined to require either party to continue incurring the private costs of having two of their children educated at a private school. The judge also declined to assign responsibility for various debts allegedly owed to defendant's family members and friends, citing a lack of persuasive evidence regarding the amount or responsibility for these debts. Lastly, the judge declined to award defendant counsel fees.

Defendant appeals and argues that the judge erred: (1) by imputing income of $25,530 per year to her; (2) by awarding her limited duration alimony instead of permanent alimony; (3) by calculating child support based on the income imputed to defendant; (4) in her valuation of plaintiff's pension for purposes of equitable distribution; (5) by failing to require the parties to pay for the two younger children's attendance at a private school; (6) by failing to require plaintiff to contribute to marital debt owed to defendant's family members and friends; and (7) by refusing to award her attorney's fees. We were advised at argument that the parties have resolved their differences regarding child support and that issue is now moot.

II.

Defendant first argues that the court erred by imputing income to her of $25,530 per year. We disagree. Here, defendant testified that she obtained a commercial driver's license (CDL) in 2004, and was employed as a bus driver, earning about $500 per week. Defendant was terminated in October 2010 for excessive lateness. She claimed that this was due to fatigue resulting from certain medical conditions. Defendant testified that she was not going to renew her CDL because she did not believe she could pass the physical.

Defendant also was employed by plaintiff's father as a part-time bookkeeper. She worked about twenty hours per week, earning $25 per hour. She was terminated in June 2011, after her father-in-law learned that defendant had a boyfriend who was living in the marital home.

Defendant argues that the court ignored the fact that she is the primary caretaker for the children. She says that she has an array of health problems, including bipolar disorder, sleep apnea, Epstein-Barr syndrome and back pain. She says that the record does not support the court's finding that she can obtain a position as a bookkeeper earning $250 per week, while working part-time as a bus driver. She contends that she was not a skilled bookkeeper and the position she held for her father-in-law cannot be duplicated in the workplace. We are convinced that these arguments are without merit.

The judge found that defendant could work while acting as the children's primary caretaker. The children are school-aged and this will not inhibit defendant from working. In addition, defendant was capable of working as a bus driver and also could work as a bookkeeper. Defendant's father-in-law testified that defendant worked for him in a clerical position that was comparable to that of a bookkeeper. Moreover, as defendant concedes, she did not present any expert medical testimony to support her claim that she could not work due to health problems.

We must defer to the judge's findings because they are supported by sufficient credible evidence in the record. Rolnick v. Rolnick, 290 N.J. Super. 35, 42 (App. Div. 1996) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Furthermore, deference to fact-finding by judges of the Family Part is particularly appropriate because of their expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

III.

Defendant also argues that the judge erred by failing to award her permanent alimony. Again, we disagree.

N.J.S.A. 2A:34-23(b) provides that in a divorce action, the court may award permanent alimony, rehabilitative alimony, limited duration alimony or reimbursement alimony to either party. In doing so, the court must consider the twelve factors set forth in the statute, along with any other factor that the court deems relevant. Ibid.

N.J.S.A. 2A:34-23(c) states that if the court determines that permanent alimony is not warranted, the court may consider the award of limited duration alimony. The statute provides that, "The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded." Ibid.

Limited duration alimony is awarded "in recognition of a dependent spouse's contributions to a relatively short-term marriage that demonstrated attributes of a 'marital partnership.'" J.E.V. v. K.V., 426 N.J. Super. 475, 486 (App. Div. 2012) (quoting Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000)). "'All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded.'" Ibid. (quoting Cox, supra, 335 N.J. Super. at 483).

Here, the judge considered the factors in N.J.S.A. 2A:34-23(b). The judge found that, even with her imputed income of $25,530, defendant had a shortfall in meeting her anticipated expenses, and that plaintiff had the ability to contribute to her needs while maintaining his own. The judge considered the duration of the marriage, noting that the parties were married on October 17, 1997, and the complaint for divorce was filed on June 24, 2011. Plaintiff was thirty-four years old, while defendant was one year older.

The judge also stated that plaintiff appeared to be in relatively good health, and though defendant requires medications, she is able to manage her health problems. The judge stated that the parties lived relatively modestly. There were multiple bankruptcy filings. The parties were able to maintain a standard of living with the generosity of plaintiff's family, and monies loaned from family and friends. The judge found that it was "unlikely the parties will be able to maintain a standard similar to that which they enjoyed without the help of others."

In addition, the judge considered the parties' earning capacities, educational backgrounds, vocational levels and employability. The judge also considered the parties' respective parental responsibilities, noting that defendant became the children's primary caretaker in the latter years of the marriage.

The judge noted that plaintiff was the primary wage-earner for the family, but defendant also worked and contributed financially to the household. The judge additionally considered the equitable distribution of the parties' assets. The judge noted the parties had no savings and no property, except for plaintiff's pension, which the court valued at $1,811. The parties also had no investment income.

The judge found that defendant's refusal to seek any type of work and her intention to rely upon whatever support she thought she was entitled to from plaintiff was "wholly unreasonable." The judge stated:

Although this is a 14-year marriage where the plaintiff was the primary breadwinner, the defendant also contributed to the household financially. She worked through the family's business, which allowed her to take on the primary responsibilities of caring for the children, because the work hours were flexible.

These parties were married at a very young age, and, as such, are still young enough and capable of seeking gainful employment. The defendant's attempts to now rely upon her asserted disabilities which may be managed through medication, by her own admission, have not been supported by the evidence she presents. The defendant, therefore, has not established a need for permanent alimony.

The judge noted that the children are relatively young but school-aged. The judge pointed out that the youngest child is six years old, and eight years of limited duration alimony would be sufficient to allow defendant to develop her work history, obtain further education, skills and training, if she desires. The judge found that limited duration alimony was appropriate "to give [defendant] the opportunity to gain the skills necessary to have gainful employment." The judge awarded defendant alimony of $408 per month for eight years.

Defendant argues that the judge erred by awarding her limited duration alimony. She contends that that the fourteen-year marriage was sufficiently long to warrant the award of permanent alimony. In support of this contention, defendant cites Hughes v. Hughes, 311 N.J. Super. 15 (App. Div. 1998), where we reversed the award of limited duration alimony after a ten-year marriage. She also cites Robertson v. Robertson, 381 N.J. Super. 199 (App. Div. 2005), in which permanent alimony was awarded after a twelve-year marriage.

However, for purposes of determining whether limited duration or permanent alimony is warranted, there is no bright line between long-term and short-term marriages. See Gordon v. Rozenwald, 380 N.J. Super. 55, 75 n. 4 (App. Div. 2005). In Gnall v. Gnall, N.J. Super. , ____ (App. Div. 2013) (slip op. at 27), we held that a fifteen-year marriage was not short-term and therefore limited duration alimony could not be awarded.

However, in Gnall, we stated that we did not intend to draw a specific line between marriages that are short-term and long- term "in an effort to define those cases warranting only limited duration rather than permanent alimony." Ibid. (slip op. at 27). Moreover, N.J.S.A. 2A:34-23(f) provides that nothing in that statute shall be construed as limiting "the court's authority to award permanent alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties and the nature of the case." Ibid. (emphasis added).

Here, the judge provided ample support for her conclusion that permanent alimony was not warranted based on the particular facts and circumstances of this case. As the judge pointed out in her decision, the parties had a modest standard of living during the marriage which was largely subsidized by others, including plaintiff's father. Plaintiff was the primary wage earner, but defendant also worked during the marriage. The parties have comparable educational backgrounds and vocational skills.

Furthermore, defendant did not forgo any employment opportunities during the marriage, and she was capable of working, despite her claim to the contrary. The record therefore supports the judge's conclusion that defendant will be capable of earning sufficient monies to maintain a lifestyle comparable to the lifestyle the parties maintained during the marriage. In the interim, an award of limited duration alimony is warranted.

IV.

Defendant also contends that the judge erred by failing to allocate to plaintiff some responsibility for certain debts allegedly owed to defendant's mother, grandmother and friend. We disagree.

The judge found that defendant had not presented persuasive evidence establishing the amount of these alleged debts or the responsibility of either party for their payment.

At the trial, defendant's mother, Evelyn Skierski, testified that defendant had accumulated more than $16,000 in debt by using Skierski's credit card. She said defendant's charges were comingled with her own. She also said that, while the credit card was in Skierski's name, defendant was an authorized user of the card.

Plaintiff was not permitted to use the credit card. According to Skierski, defendant used the card for various expenses for her family, including school tuition, electricity, insurance and entertainment. Skierski said the "loan" was verbal and there was no promissory note or writing memorializing the loan.

Defendant's grandmother, Anna Perk, testified that in 2005, she loaned plaintiff and defendant $20,642, of which about $9,000 had been repaid. Perk said the loan was not memorialized in any writing. She also said that she never discussed the loan directly with plaintiff, but she claimed he knew "what was going on." She and plaintiff "never talked about money." She claimed, however, that he "knew what it was all about."

Defendant's friend, Dorothy Hoefecker Schumer, testified that in 2010, she loaned her credit card to plaintiff and defendant to allow them to buy Christmas presents, school supplies and other items. She said she allowed plaintiff and defendant to charge $1,500 to $1,600, which she considered a "loan." According to Schumer, defendant had been making payments on this "loan" and the balance was around $1,400. She stated that, to her knowledge, plaintiff never used the credit card. She had no promissory note or written proof evidencing the alleged debt.

The judge's findings are entitled to our deference because they are supported by sufficient credible evidence in the record. Rolnick, supra, 290 N.J. Super. at 42 (citing Rova Farms, supra, 65 N.J. at 483-84). Moreover, our deference to the judge's findings on this point is "especially appropriate" because the evidence concerning the debts was "'largely testimonial and involve[d] questions of credibility.'" Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).

V.

Defendant further argues that the judge erred in the equitable distribution of plaintiff's pension.

Plaintiff is employed by the United States Postal Service (USPS), and he has contributed $1,811 to the USPS pension plan during the six-and-one-half-years he has worked as a part-time, flexible letter carrier. It is undisputed that the contributions were made during the marriage. The judge valued the pension based on the contributions plaintiff has made to the plan, and awarded defendant one-half of that amount.

"There are three separate methods of effecting an equitable distribution of that portion of a pensioner spouse's interest in a defined-benefit pension plan: (1) a present-value offset distribution; (2) a deferred-distribution; and (3) a partial deferred-distribution award." Claffey v. Claffey, 360 N.J. Super. 240, 255 (App. Div. 2003).

Under the present-value distribution method, "'the pension benefit is valued as of the [assumed] date of retirement and then discounted to determine present value.'" Id. at 255-56 (alteration in original) (quoting Menake v. Menake, 348 N.J. Super. 442, 448 (App. Div. 2002)). "If the deferred-distribution method is employed to distribute the non-pensioner spouse's interest in the pension, then the court must calculate that interest based upon use of a coverture fraction." Id. at 256.

The coverture fraction represents the number of years during coverture that the pensioner spouse was a member of the pension plan, divided by the total number of years that the pensioner spouse was a member of that pension plan. The resulting coverture fraction represents that portion of the pension that is subject to equitable distribution.

[Ibid.]

The coverture fraction limits the non-pensioner's spouse to and uses the value of the pension as of the date of retirement. Id. at 256-57.

The third method entails "'a current valuation award of the appropriate share of the non-contingent portion of a pension and a deferred distribution of the share of the contingent benefits if and when they are paid to the employee spouse.'" Id. at 257 (quoting Moore v. Moore, 114 N.J. 147, 151 (1989)). "'This method of distribution would allow the non-employee spouse immediate enjoyment of part of his or her equitable distribution award and yet effectively protect his or her right to share future contingent benefits.'" Ibid. (quoting Moore, supra, 114 N.J. at 151).

In this case, the judge did not use any of the established valuation methodologies for distribution of the parties' respective interests in plaintiff's pension. As noted, the judge awarded defendant one-half of plaintiff's contributions to the pension plan. The judge did not explain why this approach was appropriate. Accordingly, we remand the matter to the trial court for reconsideration of her decision regarding the pension.

We note, however, that there may be sound reasons for the course the judge chose. The record does not provide any basis for the conclusion that the present value of the pension benefits is the amount of plaintiff's contributions. However, it might be difficult to determine the present value of the future pension benefits, which might not accrue for decades, if they accrue at all. Moore, supra, 114 N.J. at 160. In addition, the parties have limited means and might not be able to afford the cost of a valuation analysis.

The deferred distribution approach also might not be appropriate because payment of any pension benefits would be delayed for years, and they might never be paid. During that time, the parties "may continue to be embroiled in controversy." Ibid. We note that the goal of a divorce proceeding "is to eliminate possible contact and strife between the parties." Id. at 159. A major disadvantage of the deferred distribution approach "is that it does not result in a final resolution." Ibid.

In addition, the partial deferred distribution approach might not be an appropriate choice. That approach involves a current valuation award of an appropriate share of the non-contingent portion of the pension. As we noted, the valuation process may be difficult and costly. Also, the amount of the current valuation award might be small, defendant would have to wait years to receive a share of the pension benefits, and those benefits might never be paid.

Thus, under the unique circumstances of this case, where the parties are relatively young, the contributions to the pension plan minimal, and the time in which the pension benefits might be paid a long way off, distribution to defendant of one-half of the pension contributions might represent a reasonable exercise of the court's authority to equitably distribute the parties' property.

We are convinced, however, that the determination should not be made until the court has considered the three established distribution methodologies and made appropriate findings of fact explaining why they should not be employed in this case. We reverse the provision of the judgment pertaining to the pension and remand for further proceedings on that issue.

VI.

Defendant argues that the judge erred by refusing to require the parties to bear the cost to continue educating two of the parties' children at a private school. In addition, defendant argues that the judge erred by refusing to award her counsel fees. Neither argument is of sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E).

Here, the judge found that defendant's request that plaintiff continue to finance the children's attendance at a private school was unreasonable. The judge stated, "These parties cannot meet their own expenses and to require that [they] maintain the children in private school is [not] prudent or feasible[.]" The record supports that finding.

In addition, the judge considered defendant's application for counsel fees and determined that an award was not warranted because defendant unreasonably prolonged the litigation by raising unmeritorious claims, such as her demand that plaintiff bear some responsibility for debts purportedly owed to her family members and friend. We are convinced the judge did not abuse her discretion by denying defendant's application for counsel fees.

Affirmed in part, reversed in part, and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.