CECILIA SANCHEZ v. ALVIN SANCHEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00704-12T2

CECILIA SANCHEZ,

Plaintiff-Appellant,

v.

ALVIN SANCHEZ,

Defendant-Respondent.

_______________________________________________

May 27, 2014

Submitted March 18, 2014 Decided

Before Judges Messano and Rothstadt.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1656-11.

Lisette Castelo, attorney for appellant.

Dolcy Law Firm, L.L.C., attorneys for respondent (Colleen M. Dolcy, on the brief).

PER CURIAM

Following trial, Judge Patricia A. Roe entered a dual judgment of divorce (JOD) that ordered in part: 1) plaintiff Cecilia Sanchez to pay permanent alimony to defendant Alvin Sanchez in the amount of $200 per week; 2) each party to retain their own retirement or investment accounts free and clear of the other's claims, and be responsible for their own debts; and 3) plaintiff to pay defendant $2500 in counsel fees from her share of the proceeds of the sale of the marital home.1 Plaintiff now appeals. After considering the arguments she raises in light of the record and applicable legal standards, we affirm.

I.

The parties were married on September 14, 1996 and had one child, a daughter, who was born in 1998. They owned property in Jackson, which was the marital home, the net equity of which, based upon stipulated fair market value and outstanding mortgage indebtedness, was approximately $39,000. Plaintiff and defendant permanently separated in 2010, and defendant moved to Jersey City, where he lived in a single room. Plaintiff remained in the marital home with her elderly father and the couple's daughter.

Plaintiff was forty-two years old, had obtained a bachelor's degree in nursing from a university in the Philippines, and worked as a neonatal intensive care unit nurse at a local hospital. In 2011, plaintiff's gross salary was nearly $92,000 per year. Plaintiff filed a separate tax return in 2009 and 2010, claiming her daughter and mortgage interest as deductions. She obtained refunds of several thousand dollars both years, which she did not share with defendant. In June or July 2011, plaintiff ceased paying the two mortgages on the marital home, claiming she was unable to afford the payments and her husband was not contributing financially.

Plaintiff acknowledged that she took out a $28,000 loan from her 401K plan and a $6,500 loan from a home equity line of credit to cover her expenses. She claimed defendant had sold off stock options he obtained from his employer and kept the proceeds; however, she acknowledged that some of the proceeds had been used to remodel the kitchen in the marital home.

Defendant was forty-seven years old and had earned a bachelor's degree in accounting from a university in the Philippines. In 2009, he earned approximately $65,000, his highest annual compensation; however, he became unemployed in September of that year and was unable to find work thereafter. He received unemployment compensation until November 2011, when the benefits expired; his total income in 2011 was $20,000. Defendant detailed his unsuccessful efforts to find employment, which included sending out more than one-hundred applications, going on interviews and using on-line employment search engines. He had recently started to look for work outside his field of accounting and bookkeeping. Defendant believed he would need approximately $3200 per month for his personal expenses, transportation expenses, and rent for an apartment suitable for his daughter's overnight visits.

Defendant had a 401K account from his previous employment which contained approximately $70,000 as of June 2011. He had not taken any withdrawals or loans from the account as of the time of the trial. Defendant explained that he had not been secretly selling off stock, as plaintiff alleged. Rather, the stock options given to him as a bonus by his employer were sold automatically when the shares reached a certain price. Defendant estimated that after paying taxes, he had received approximately $20,000 in net proceeds, the majority of which had been used to remodel the kitchen in the marital home and to pay down the couple's credit card debts.

Defendant was solely responsible for paying income taxes on the stock sales, since plaintiff refused to file a joint return. He admitted selling some additional stock in September 2010 to repay a loan made by his father to the couple years earlier. Defendant admitted that he had not paid any child support nor contributed to mortgage payments on the marital home since the parties' separation in 2010.

II.

A.

Plaintiff contends that the judge erred in awarding defendant permanent alimony, arguing that both worked professionally throughout the marriage, her income did not "significantly exceed" defendant's income, and the judge imputed an insufficient amount of income to defendant. We disagree.

"'[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.'" Steneken v. Steneken, 183 N.J. 290, 299 (2005) (quoting Crews v. Crews, 164 N.J. 11, 16 (2000)). "When determining whether an award of alimony is warranted, a trial judge must issue 'specific findings on the evidence' presented, N.J.S.A. 2A:34-23(c), weighing the objective standards delineated in N.J.S.A. 2A:34-23(b)." Clark v. Clark, 429 N.J. Super. 61, 73 (App. Div. 2012). Those statutory factors are:

(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 or civil union 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, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income; (9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities; (10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair; (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).]

"In examining any alimony request, the court begins its analysis by considering whether permanent alimony should be awarded." Gnall v. Gnall, 432 N.J. Super. 129, 149-50 (App. Div. 2013) (citation omitted), certif. granted, 217 N.J. 52 (2014). "All facts regarding each unique marital partnership must be evaluated when considering evidence regarding a claim of economic dependence warranting long-lasting support." Id. at 153.

On review, we defer to the trial court's findings, which "should not be vacated unless the court clearly abused its discretion, failed to consider all of the controlling legal principles, made mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole." J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 2012) (citing Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996)). "Substantial weight should be given to the judge's observations of the parties' demeanor and credibility." Ibid. (citation omitted).

In her oral decision, Judge Roe explicitly addressed each of the alimony factors set forth in the statute. She found that, although both parties had comparable educational backgrounds, plaintiff's documented work history indicated that she always earned more than defendant. The judge imputed annual income of $40,800 to defendant, based upon a compendium of wage statistics, but noted the continued existence of "a large disparity in income between the parties."

Judge Roe also gave "some weight" to the sixth factor, the length of absence from the job market of the party seeking maintenance, because defendant had remained unemployed for more than two years at the time of trial. She specifically found that defendant's unemployment was "involuntary," and his long absence from the job market was attributable to scarce employment opportunities in the financial sector. However, she also recognized that defendant was "going to have to look outside of that area."

Judge Roe's conclusions were amply supported by the evidence. Contrary to plaintiff's contention that she did not earn substantially more than defendant during the marriage, defendant testified that his average yearly salary was approximately $50,000, and his salary in 2009 was the most he had ever earned. Thus, in the years leading up to the separation, plaintiff's income substantially exceeded defendant's.

We also disagree with plaintiff's contention that the judge should have imputed more income to defendant. Although Judge Roe found that defendant's absence from the workforce was "involuntary," she nevertheless used a compendium of wages in defendant's field to assess how much income should be imputed. We find no abuse of discretion in this regard. If defendant was able to find work, it was unlikely that he would necessarily command a salary commensurate with one reflecting his years of service to his prior employer.2

B.

Regarding the equitable distribution aspects of the JOD, plaintiff argues that Judge Roe erred by allowing each party to retain his or her retirement account, because the judge failed to make specific findings regarding the value of the accounts. She also contends that the judge erred by ordering each party to be responsible for his or her respective debts, including credit card debts, because there was insufficient evidence that credit cards in plaintiff's name were in her exclusive control. Lastly, plaintiff argues that Judge Roe erred by failing to consider defendant's dissipation of his stock assets. We again disagree.

"The goal of equitable distribution . . . is to effect a fair and just division of marital assets." Steneken, supra, 183 N.J. at 299 (citation omitted). The court "shall" consider the non-exhaustive list of factors set forth in N.J.S.A. 2A:34-23.1, and "make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution . . . ." We defer to the trial court's findings and allocation of marital assets and liabilities when they are supported by substantial credible evidence. Brown v. Brown, 348 N.J. Super. 466, 475 (App. Div. 2002) (citations omitted). "When reviewing the equitable distribution ordered after trial, '[w]e must decide whether the . . . court mistakenly exercised its broad authority to divide the parties' property or whether the result reached was bottomed on a misconception of law or findings or fact that are contrary to the evidence.'" Tannen v. Tannen, 416 N.J. Super. 248, 281 (App. Div. 2010) (alteration in original) (quoting Genovese v. Genovese, 392 N.J. Super. 215, 223 (App. Div. 2007)), aff'd o.b., 208 N.J. 409 (2011).

In her oral decision, Judge Roe made specific findings as to each of the statutory factors. She placed particular weight upon N.J.S.A. 2A:34-23.1(i), "[t]he contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the [marriage] . . . ." Judge Roe found that "plaintiff did contribute to the dissipation of the equity in the marital home by just failing to pay the mortgage and refusing to list the property for sale, losing equity as we speak." She also found that plaintiff had withdrawn funds from her retirement account and failed to apply those funds to the mortgage or her individual credit card debts. The judge also observed that neither party had provided any information regarding the current value of their retirement accounts, or their individual debts and liabilities, beyond what appeared in their case information statements.

The case information statements indicated that plaintiff's 401K plan was worth $52,133 as of July 30, 2009, and that defendant's 401K plan was worth $72,468 as of March 31, 2011. Plaintiff had withdrawn money from her plan and had not shared it with defendant; nor did she share proceeds from a home equity line of credit with him. Defendant, on the other hand, had not withdrawn any monies from his 401K plan. The judge also found that plaintiff's claim that she could not afford to make the monthly mortgage payments had "no merit." These factual findings were supported by substantial, credible evidence in the record, and we find no mistaken exercise of Judge Roe's broad discretion in determining that each party would retain their retirement accounts "free and clear of any right, title, or interest by the other."

We reach the same conclusion regarding plaintiff's claim of error in making her solely responsible for the debts on credit cards issued in her name. In her oral decision, Judge Roe noted that many of the credit card balances listed on the wife's case information statement were higher than the amounts owed when the parties separated. In addition, plaintiff had continued to use the credit cards, charging trips to the Phillipines, Canada, Florida, and Myrtle Beach. During that same time period, defendant did not have access to the credit cards.

Lastly, Judge Roe found defendant's testimony regarding the sale of his stocks to be credible. She found that he had used a portion of the proceeds to renovate the kitchen in the marital home and pay down marital debt. She also noted that defendant had to pay taxes on the sales because of plaintiff's unwillingness to file joint tax returns. In short, the judge's factual findings were tethered to the credibility determinations she made while viewing each party testify at trial, and we find no mistaken exercise of her discretion.

C.

Plaintiff contends that the award of $2500 in counsel fees to defendant was error because Judge Roe failed to "examine and weigh all of the factors." We again disagree.

"An award of counsel fees in a matrimonial action is discretionary." Tannen, supra, 416 N.J. Super. at 285 (citing Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004)). "On appeal, a decision regarding counsel fees will not be reversed absent a showing of an abuse of discretion involving a clear error in judgment." Ibid. (citing Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999)).

Pursuant to Rule 5:3-5(c), "the court in its discretion may make an allowance" for attorney fees in a divorce action. The Rule provides a list of relevant factors that the judge should consider in fixing the amount of any fee award, one of which is "the reasonableness and good faith of the positions advanced by the parties both during and prior to trial[.]" R. 5:3-5(c)(3); see also Diehl v. Diehl, 389 N.J. Super. 443, 454 (App. Div. 2006) (same). In her decision, Judge Roe gave specific examples of how plaintiff had taken unreasonable positions throughout the litigation.

Plaintiff argues that the judge failed to consider the other factors cited in the Rule. However, it is quite clear from the entire oral opinion that Judge Roe did consider, for example, the "financial circumstances of the parties[,]" and their "ability . . . to pay their own fees or to contribute to the fees of the other party[.]" R. 5:3-5(c)(1), (2).

To the extent we have not specifically addressed plaintiff's other arguments regarding the fee award, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Plaintiff represented herself at trial. Before testimony began, the parties entered stipulations of settlement as to a number of issues. They agreed to share joint legal custody of their daughter, with plaintiff being the parent of primary residence, and a parenting schedule for defendant. Both agreed to retain their respective bank accounts, exclusive of stocks, investment or retirement accounts.

2 Defendant has not cross-appealed from the judge's imputation of income to him, despite finding that his unemployment was involuntary. We have said that "[i]ncome may be imputed to a party who is voluntarily unemployed or underemployed." Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (citing Dorfman v. Dorman, 315 N.J. Super. 511, 516 (App. Div. 1998)). A finding of "voluntary[y] underemploy[ment] . . . is requisite[] before considering imputation of income." Dorfman, supra, 315 N.J. Super. at 516. We construe the judge's finding that defendant's unemployment was "involuntary" in concert with her further comments that defendant needed to consider employment opportunities outside his profession. As such, the record provides adequate support for imputation of income to defendant.