JAMES R. HAPPOLD v. JEAN HASHER HAPPOLDAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
JAMES R. HAPPOLD,
JEAN HASHER HAPPOLD,
ArguedJune 3, 2014 Decided October24, 2014
Before Judges Alvarez, Ostrer and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-309-09.
Stacy L. Spinosi argued the cause for appellant/cross-respondent.
Maryann J. Rabkin argued the cause for respondent/cross-appellant (Rabkin Law Offices, P.C., attorneys; Ms. Rabkin, on the brief).
The opinion of the court was delivered by
This divorce case returns to us after a remand. The parties had a long-term marriage, and the wife was substantially dependent on the husband. We reversed the trial court's 2010 award of limited duration alimony and remanded for entry of an order of permanent alimony. Happold v. Happold, No. A-2792-10 (App. Div. Nov. 21, 2011). However, as the trial court also inadequately considered the statutory factors, N.J.S.A. 2A:34-23(b), we remanded for additional fact-finding by a different judge concerning the amount of alimony. Happold, supra, slip op. at 19, 22. We also remanded for reconsideration of the award of counsel fees, as the court failed to consider, or misapplied, the governing factors under Rule 5:3-5. Id., slip op. at 20-22.
After a plenary hearing, the remand court awarded defendant permanent alimony of $750 a week, after a period of rehabilitative alimony at $1050 a week, plus twenty percent of any annual bonuses plaintiff received. The court imputed $290 in weekly earnings after the rehabilitative period. By contrast, the court in the first trial set alimony at $970 a week, plus twenty percent of bonuses, after imputing $384 in weekly earnings. The remand court also ordered plaintiff to reimburse defendant all her fees from the first trial, $5000 of her appellate fees, and none of her fees for the remand proceedings.
Before the plenary hearing on alimony, the trial court granted plaintiff's cross-motion to emancipate the parties' two youngest children, B.H., born in February 1993, and C.H., born in January 1995. (The eldest of the parties' three children was emancipated before the first trial.) The cross-motion was filed in response to defendant's motion for reimbursement of tuition expenses she incurred on behalf of C.H. and B.H. The court denied defendant's motion, and a later motion for reconsideration.
Defendant appeals from the pre-hearing orders pertaining to emancipation and tuition reimbursement, the alimony amount, and the denial of fees for the remand hearing. Plaintiff cross-appeals on the issue of fees, challenging the amount awarded for the first trial, and asserting he should have been awarded fees for the remand proceedings.
Having reviewed the parties' arguments in light of the factual record and the applicable principles of law, we are constrained to reverse in part and remand the trial court's orders pertaining to emancipation and tuition reimbursement. We are also constrained to remand for reconsideration of the amount of alimony, in light of the court's failure to adequately consider the tax consequences of the award.
Without repeating at length the facts set forth in our initial opinion, we will review the pertinent facts elicited on remand in the context of our discussion of the points on appeal. We turn first to the orders regarding emancipation and educational cost reimbursements.
B.H. graduated from high school in June 2011. She also gave birth to a child out of wedlock just prior to graduation. The infant lived with her and defendant. B.H. enrolled in a year-long program at a private beauty school in September 2011. Defendant alleged beauty school was B.H.'s "second choice." B.H. really wanted to become a dental assistant and could have commenced a program in that field in April 2012 at Camden County College. She chose to attend beauty school, rather than wait.1
According to defendant, B.H. "had a bad experience" at beauty school. She dropped out in December 2011.2 B.H. did not continue any post-high school education in the following spring, summer or fall of 2012. She held a part-time summer job at an amusement park, earning roughly $500.
C.H. left high school in April 2011 after failing to attend classes for an extended period of time.3 She later earned a G.E.D. She has never held a job. Defendant asserted that C.H. was a model student until the parties' separated in 2008. Thereafter, she exhibited behavioral problems. Defendant alleged that C.H. briefly lived with her father, and her father took her for counseling.4 He eventually brought her back to her mother. Her mother attempted to enroll C.H. in a program for "troubled students," but there were no vacancies in the area schools.
In a motion filed January 14, 2013, defendant sought reimbursement of half of $1789.75 of beauty school costs she personally assumed, plus half of $2795.25 still owed by B.H. Defendant stated she had a payment plan of $179.50 a month toward the $1789.75, and plaintiff agreed to pay half, or $90 a month. As proof of the alleged agreement, defendant presented two $90 checks signed by plaintiff, both dated December 7, 2011; one memo line stated, "10/28/11 - 11/28/11 monthly payment" and the other stated, "11/28/11 - 12/28/11 monthly payment".
Defendant also alleged that B.H. and C.H. had both applied for full-time programs in the Harris School of Business (HBS), with classes commencing January 22, 2013. She stated applications for financial aid were pending. As evidence of the children's enrollment, defendant presented "Budget worksheets" and unsigned loan agreements, although defendant alleged she and her daughters had to sign loans totaling $26,796. Defendant sought plaintiff's assumption of half the debt. B.H. was allegedly going to study in a dental-related field; and C.H. wanted to become a hospital technician.
Plaintiff opposed the motion and sought B.H.'s emancipation as of February 2012 apparently the date he believed she dropped out of beauty school and C.H.'s emancipation as of her eighteenth birthday in early January 2013. Plaintiff had expressed his intention to seek the children's emancipation shortly after our remand in late 2011, but the trial judge then assigned to the case on remand not the judge who ruled on the emancipation motions or presided over the plenary remand hearing urged plaintiff to withhold while the parties attempted to settle the case.
Plaintiff argued that B.H. demonstrated she had moved beyond the sphere of influence of her mother by having a child. He noted that she ceased attending school after she dropped out of beauty school. Plaintiff alleged that defendant urgently enrolled the children in school for January 2013 when confronted with a notice from Probation regarding their possible emancipation.5 Plaintiff did not directly explain the two checks, or deny his agreement to pay half the beauty school expenses, although he denied he had "any contact . . . regarding the latest enrollment into school" and he had not spoken to defendant in years.
In a March 2013 order and memorandum of decision, the court emancipated B.H. as of the date she ceased attending beauty school in December 2011, and emancipated C.H. as of her eighteenth birthday in January 2013; and ordered defendant to reimburse child support. The court denied fees to both parties. Deeming the parties' factual disputes to be immaterial, the court found neither child was attending a post-high school course of study, as defendant failed to present sufficient proof of the children's enrollment. The court also found that B.H. demonstrated "a lack of commitment to cosmetology school" as she did not remain a diligent student and eventually dropped out. Consequently, the court found defendant failed to rebut the presumption of emancipation applicable to both children, citing Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997).
The court denied the request for reimbursement of the beauty school costs, finding that defendant had failed to provide proof of an agreement with plaintiff. The court also found wanting defendant's proofs that expenses had been incurred in connection with the alleged January 2013 enrollments. Citing Newburgh v. Arrigo, 88 N.J. 529 (1982), and Gac v. Gac, 186 N.J. 535 (2006), the court highlighted defendant's failure to confer in advance with plaintiff, and B.H.'s lack of commitment to her educational program.
Defendant moved for reconsideration and provided additional proof in opposition to emancipation and in support of tuition reimbursement. She provided March 2013 letters from the HBS registrar, confirming both children were attending their respective programs Monday through Thursday and some Fridays, from 8:30 a.m. to 2:30 p.m. Defendant presented additional documentary evidence demonstrating that the children were indeed matriculated in their respective programs, and attending class. B.H. was scheduled to complete her dental assistant program in October 2013. C.H. was scheduled to complete her multi-skill health technician program in August 2013.
To explain B.H.'s apparent lack of commitment to beauty school, defendant presented evidence that B.H. had a learning disability and had an individualized education plan in high school. She explained that C.H. had also faced difficulties with school due to her depression, which started when her "family broke up."
Defendant submitted a certification from B.H. However, plaintiff responded with a revised and annotated version of B.H.'s certification, asserting defendant's counsel omitted changes B.H. had sought. B.H. stated that plaintiff agreed to help her pay the beauty school loan, but annotated that he did so provided she remained in school. She explained that she left beauty school because "other students kept going out back smoking and getting high, and the teachers did not seem to be very caring." Additionally, she had a difficult time getting help from her teachers.
B.H. asserted that her father was upset when she dropped out of beauty school, and both parents wanted her to continue attending. Her mother took B.H. to speak with the school director about the problems she was experiencing. The director told her to go to the Cherry Hill campus. B.H. asserted in her revised certification that her mother was partly to blame for her dropping out, because she was unwilling to provide B.H. transportation to the other campus of the beauty school claiming it was too far and there was too much traffic.
B.H. asserted that in the summer of 2012, she discussed her plan to attend a dental assistant program with her father. B.H. asserted, "He wanted to know . . . where I would go and how much it would cost." B.H. claimed he told her to "figure it out." B.H. stated that, after she informed him that she planned to attend, he "seemed to be okay with [her] decision," but refused to contribute to the cost. B.H. tried, unsuccessfully, to find employment to help defray her educational costs.
B.H. started HBS in January 2013. B.H. asserted that she had missed only two days of classes in almost two months once because she was sick and once because her son needed medical attention. She was scheduled to complete her program in October 2013.
C.H. did not provide a certification. However, plaintiff provided an unsworn letter from C.H. stating that she refused to sign a draft certification prepared by defense counsel. C.H. denied that she suffered from depression. Other evidence in the record indicates that C.H. had physical challenges. Plaintiff asserted that defendant threatened the children that if they were emancipated, they would need to find another place to live.
The court denied the motion for reconsideration. Relying on Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996), and D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990), the court held that defendant had not demonstrated that the trial court had overlooked evidence or controlling law; and the new evidence could have been presented with defendant's original motion.
Our standard of review is well-settled. We defer to the Family Court's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it." Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). We likewise defer to the Family Court's decisions that are committed to the court's exercise of discretion. Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006).
However, we owe no special deference to the trial judge'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). Also, 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). We may also exercise more extensive review of trial court findings that do not involve a testimonial hearing or the opportunity to assess witness credibility. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating that deference to Family Court conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made").
Whether to grant a motion for reconsideration rests within a trial court's sound discretion, exercised when required by the interest of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). A trial court's exercise of discretion is guided by the following standard
"Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. . . .
Alternatively, if a litigant wishes to bring new or additional information to the Court's attention which it could not have provided on the first application, the Court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence."
[Id. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
We review a trial court's decision on a motion for reconsideration for an abuse of discretion.
Turning to the issue of emancipation, the inquiry involves, essentially, "whether the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own.'" Filippone, supra, 304 N.J. Super. at 308 (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). "Emancipation can occur upon the child's marriage, induction into military service, by court order based on the child's best interests, or by attainment of an appropriate age." Newburgh, supra, 88 N.J. at 543. Reaching the age of majority, eighteen, creates a prima facie case for emancipation. Ibid. Thus, upon a showing that the child has reached the age of majority, the opponent of emancipation must show there is a basis to continue support. Filippone, supra, 304 N.J. Super. at 308.
The emancipation decision is fact-sensitive. Ibid. It "involves a critical evaluation of the prevailing circumstances including the child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).
A child's full-time attendance in post-secondary education may be a basis to delay emancipation. "[W]hile parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support." Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003). See also Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972); Moehring v. Maute, 268 N.J. Super.477, 480-81 (Ch. Div. 1993) (child past age of majority who is full-time student, diligent in her studies, getting good grades, and still dependent on her parents, is not emancipated and is entitled to parents' support if they have the ability to pay).
We have recognized that full-time or uninterrupted college attendance is not invariably required to forestall emancipation. See Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999) (holding that a hiatus from college during which the child worked full-time did not result in emancipation). However, when there is a gap or hiatus in a child's formal education, courts need to apply appropriate limitations so that parents are not subject to "an unreasonable, open-ended burden." Sakovits v. Sakovits, 178 N.J. Super. 623, 631-32 (Ch. Div. 1981) (suggesting that emancipation should not follow a "brief hiatus" between high school and college, which is becoming more common, but a four-year hiatus made it "inappropriate to require plaintiff to contribute to [the child's] college education").
The court must consider the reasons for the child's interrupted attendance, as well as all other factors, in resolving the essential inquiry of the child's independence. See Patetta, supra, 358 N.J. Super. at 93-94 ("The demonstrable needs of the child . . . are determinative of the duty of support."). On the other hand, a child's lack of commitment to his or her education, or the unexcused failure to remain a diligent, full-time student may be a basis for emancipation. Our law does not require "support and concomitant deferred emancipation for a child unable to perform adequately in his academic program." Filippone, supra, 304 N.J. Super. at 311-12. In Filippone, we held that the son's "failure to pass any of his courses in the spring . . . semester, reinforced by his failure to return to school in the ensuing fall semester" supported emancipation. Id. at 312.
We discern no abuse of discretion in the trial court's initial order to emancipate B.H. as of the date she dropped out of beauty school, and C.H. as of the date of her eighteenth birthday. Defendant presented inadequate proofs to justify B.H.'s decision to drop out of beauty school, and her subsequent failure to resume post-secondary education. B.H.'s unilateral decision to drop out of the cosmetology program, despite the significant loss of tuition and other related expenses, demonstrated an independence of mind consistent with emancipation. It also reflected a lack of dedication to her educational pursuits.
Defendant's reference to C.H.'s behavioral issues did not adequately explain or justify C.H.'s idleness between earning her G.E.D. in February 2012 and her application to HBS in January 2013. Her high school truancy, and her other misbehavior, indicated she had moved beyond the sphere of her parents' influence.
We also agree that defendant's documentary proofs were initially insufficient to demonstrate that B.H. and C.H. were actually enrolled in HBS and attending classes. Defendant provided no details regarding the programs of study, the children's suitability for them, and any consideration of alternative programs such as county college programs which might have been available at a significantly lower cost.
As for the motion for reconsideration, given the court's broad discretion, we will not disturb the court's determination not to revisit its decision to emancipate B.H. as of December 21, 2011. However, we are constrained to part company with the trial court, to the extent it denied what amounts to a lesser relief subsumed within defendant's request, that is, the unemancipation of B.H. commencing with her re-enrollment in studies. Likewise, in view of the supplemental proofs, the court should have reconsidered its decision to emancipate C.H. in the first instance on the date of her birthday, which virtually coincided with her matriculation in full-time post-secondary studies.
The court correctly observed that defendant's proofs in support of her reconsideration motion could have been presented initially. As a general rule, "[r]econsideration cannot be used to expand the record and reargue a motion." See Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). However, this rule, and the standards for reconsideration set forth in D'Atria and Cummings should be tempered, in the interests of justice, in a case where the relief sought implicates the court's parens patriae authority to protect the best interests of a child.
The child's best interests is the "'greatest and overriding consideration'" in a family court matter. Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Monmouth Cnty. Div. of Soc. Servs. v. G.D.M., 308 N.J. Super. 83, 88 (Ch. Div. 1997)). "[T]he right to receive support belongs to the children, not the custodial parent." Ibid.;see alsoL.V. v. R.S., 347 N.J. Super.33, 41 (App. Div. 2002). Consistent with this principle, a parent may not waive or bargain away a child's right to support. Gotlib, supra, 399 N.J. Super. at 305; Dolce, supra, 383 N.J. Super. at 18. Likewise, a parent's failure to abide by provisions of a property settlement agreement cannot prejudice the child's right to support. Colca, supra, 413 N.J. Super.at 420; Gotlib, supra, 399 N.J. Super. at 306.
Applying these principles, we conclude it was an understandable, but mistaken, exercise of discretion for the court to reject the proofs that defendant presented in support of her motion for reconsideration. Defendant's failure to present that evidence in support of her initial motion should not disadvantage B.H. and C.H.6
The proofs presented in support of the motion for reconsideration established, without genuine dispute, that both daughters were enrolled in their respective full-time programs. B.H. provided information regarding her attendance, although no such evidence was presented in connection with C.H. B.H. was entitled to unemancipation.
An adult child who has been formally emancipated may, in appropriate circumstances, be unemancipated to receive support to attend post-secondary schooling. See White v. White, 313 N.J. Super. 637, 643-44 (Ch. Div. 1998); Sakovits, supra, 178 N.J. Super. at 631 (stating that a court should be able to "requir[e] contribution to the college and/or professional education of children . . . where the child has at one point been formally declared to be emancipated").
Plaintiff's evidence including the revised version of B.H.'s certification established that he was aware of his daughter's interest in dental assistant training. Putting aside the issue of cost reimbursement, which we discuss below, he did not discourage her or take the position that she was unsuited for the program.
We therefore conclude that beginning with their attendance in the HBS programs, B.H. should have been unemancipated and C.H. should have remained unemancipated. Their dependent status would end upon (1) their successful completion of studies assuming they diligently participated in their programs; or (2) their premature withdrawal from the program, barring some compelling excuse. Child support should not have terminated for C.H., and it should have resumed for B.H.
Our view of the children's emancipation does not necessarily compel a similarly favorable view of defendant's request for reimbursement of HBS costs. Rather, plaintiff's appropriate contribution, if any, must be determined in light of the facts, and the Newburgh-Gac factors.
The trial court rejected defendant's motion because it held that no request was made before the expenses were incurred. However, at least in B.H.'s case, it is undisputed based on plaintiff's submission of B.H.'s revised certification in opposition to the reconsideration motion that plaintiff was aware B.H. planned to attend a dental assistant's program as early as the preceding summer. She certified he was "okay" with her plans, but reportedly told her he would not contribute. There is no evidence that he encouraged her to attend a different or less expensive program. The record lacks any evidence of communications between C.H. and her father regarding her plans for vocational training. The record also does not reflect whether equivalent programs were available at a lower cost through a county college or other institution.
The court shall also revisit the issue of defendant's request for reimbursement of the beauty school expenses. Contrary to the trial court's finding that there was no evidence of an agreement to reimburse, defendant presented two $90 checks from plaintiff as proof that he agreed to pay half of defendant's $180 a month payment plan obligations. In opposing defendant's motion, plaintiff did not expressly deny that an agreement existed. Rather, he denied speaking directly to defendant. Moreover, through B.H.'s revised certification that plaintiff submitted, plaintiff essentially conceded that he would assist B.H., while she attended the program.
B.H. unilaterally stopped attending. However, consistent with the principles set forth above, the proviso that he would pay only so long as B.H. remained in class is not necessarily binding. Both parents wanted B.H. to continue. The court must determine whether it is equitable that only defendant bear financial responsibility for B.H.'s short-lived attendance in the cosmetology program.
At the plenary hearing on alimony, the parties differed regarding the family budget and standard of living. We shall not review in detail the parties' respective efforts to substantiate their claims regarding the marital standard of living, or their budgetary needs post-divorce. We are satisfied, after a review of the record, that there was sufficient credible evidence in the record to support the court's thorough and detailed findings regarding the parties' budgetary needs. The court scrutinized the parties' respective case information statements, took into account gaps in the parties' proofs, and considered their demeanor and credibility.
To the extent defendant challenges the court's findings regarding various categories of spending, her argument lacks sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E). In particular, defendant sought to include within her budget health and educational expenses associated with B.H. and C.H. Defendant also claimed costs that exceeded the amounts in her actual bills such as the cost of auto insurance. She claimed expenses that were unsubstantiated by documentary evidence, or inconsistent with her deposition testimony, such as her claims of utility bills.
The trial court concluded that defendant's "bare bones budget" totaled $4863, and plaintiff's budget was $6419, which the court also deemed were "the minimum amount[s] needed for [the parties] to subsist." Half of the difference in budget resulted from plaintiff's higher shelter costs. While defendant owned the former marital home debt-free as a result of equitable distribution, plaintiff had to pay $1400 a month rent for his townhouse. Plaintiff also had health-related expenses, based upon his personal needs. He had a higher personal clothing budget due to his sales-related position.
As we previously noted, the court imputed gross income to defendant of $290 a week, based on the minimum wage.7 The court found defendant to be healthy, and mentally and physically able to work. The court found there was "no reason why [d]efendant has not applied for any jobs since the separation of the marriage" and that it was appropriate to impute income to her, effective three years after separation. The court found plaintiff's gross yearly income, based on the average W-2 earnings in 2011 and 2012, to be $174,100 per year.
The court calculated that plaintiff's annual gross income of $174,100 equaled $14,500 a month. Subtracting his $6419 budget left $8081 in "'excess' disposable income, not including tax considerations." The court awarded defendant $1050 in weekly alimony, dropping down to $750 after three years. The court noted, "This is roughly one half of the weekly remaining disposable income of the income the Court has determined that [p]laintiff enjoys. This leaves [d]efendant only slightly short of her monthly bare-bones budget as determined above." Defendant's gross income under the court's award would equal $4269 the total of $3022.50 in alimony (4.3 x $750/week), plus $1247 in imputed earnings (4.3 x $290/week), not counting a possible increase based on her twenty percent share of defendant's potential bonus. The $4269 total is almost thirteen percent below the budget of $4863.
The court made adequate findings regarding the statutory alimony factors, with the exception of its findings regarding factor twelve: "[t]he 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." N.J.S.A.2A:34-23(b)(12). The court simply acknowledged that the alimony will be taxable income to defendant, and deductible by plaintiff, but otherwise stated, "there will be tax implications as to these determinations that are not specifically commented on here."
As a consequence of the court's failure to calculate the after-tax income to defendant, the record simply does not support the court's conclusion that the award would leave defendant close to meeting her "bare-bones" $4863 budget found by the court. We need not address the significance of a thirteen percent shortfall, because it is apparent that, after tax, the shortfall would be much greater. To achieve monthly net income of $4863, or close to it, defendant would need a total gross income significantly greater than $4863. On the other hand, the court calculated plaintiff's ability to pay his disposable income after considering his personal budget without considering his net taxable income.
A trial court is also invested with broad discretion to determine both alimony and equitable distribution. See, e.g., Cox v. Cox, 335 N.J. Super.465, 473 (App. Div. 2000). However, we may vacate an award if the "trial court clearly abused its discretion or failed to consider all of the controlling legal principles," Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009), or if the "court ignores applicable standards." Gotlib, supra, 399 N.J. Super.at 309. It is insufficient for the court simply to acknowledge that alimony is taxable to the recipient, and deductible by the payor. The court must make specific findings regarding the tax consequences of the award on both the supporting and supported parties. See Boardman v. Boardman, 314 N.J. Super.340, 345 (App. Div. 1998) (reversing alimony award and remanding where trial court failed to take account for, or correctly assess, tax consequences of alimony, among other things); see also N.J.S.A. 2A:34-23(c) (stating that the court shall "make specific findings on the evidence about all of the . . . factors").
"[T]he statutory factors emphasize facts reflecting need and the ability to pay" and maintenance of the marital standard of living. Reese v. Weis, 430 N.J. Super. 552, 569 (App. Div. 2013). The court must consider whether, after tax impacts, the alimony award meets the requirements of the law particularly, whether it satisfies the recipient's needs as the court has determined them, commensurate with the supporting former spouse's ability to pay. On remand, the court shall consider defendant's need in terms of gross alimony based on the likely tax consequences,8in order to meet her bare-bones budget with net-of-tax income; and plaintiff's ability to pay, based on his needs and the tax imposed on his gross income.9
Defendant challenges the court's denial of attorney's fees for the remand proceedings. Plaintiff cross-appeals, arguing that he should have been awarded fees for the same proceedings, and the fees awarded for pre-remand proceedings were excessive. "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). In considering the award of counsel fees, the court shall consider
(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.
We discern no clear abuse of discretion. The trial court found, with adequate support in the record, that both parties had reasonable legal positions in the remand proceedings and acted in good faith. The court recognized that plaintiff was in a strong position financially based on his income, but defendant owned the marital home free and clear. Consequently, both parties were capable of bearing their respective legal costs on remand. On the other hand, in rejecting plaintiff's cross-appeal from the award of pre-remand fees, the court placed great weight on factors one and two financial circumstances and ability to pay. We shall not disturb the court's determinations.
Reversed and remanded in part, and affirmed in part. We do not retain jurisdiction.
1 Defendant alleged her daughter wanted to become a dental hygienist, but B.H. asserted her interest was in the lesser-skilled position of dental assistant. Compare N.J.A.C. 13:30-1 A. 2 (scope of practice of licensed dental hygienist), with N.J.A.C. 13:30-2.4 (scope of practice of registered dental assistant) and N.J.A.C. 13:30-2.6 (scope of practice of unregistered dental assistant).
2 Defendant initially alleged B.H. completed roughly half the program. She later asserted B.H. dropped out in January or February 2012. The court found she ceased attending class December 21, 2011, based on a billing statement from the school.
3 Defendant initially alleged in a January 2013 certification that C.H. "dropped out" "this past April" apparently referring to April 2012 and then earned a G.E.D. Defendant later certified that C.H. was "expelled" for "truancy." Plaintiff certified that C.H. dropped out in 2011, during tenth grade, and she received her G.E.D. in February 2012.
4 Defendant testified later at the plenary hearing that C.H. stole over $12,000 from her checking account in 2010 or 2011, and used the money to buy a car for her boyfriend and other items; and, when the theft was discovered, she and her boyfriend destroyed the car.
5 The Probation notice is not included in the record. The parties disputed whether plaintiff prompted the Probation action in some way.
6 The burden on plaintiff of participating in what amounts to a "dress rehearsal" of the motion is not without a remedy. The court may, in the exercise of discretion, consider a litigant's failure to present evidence in a timely fashion in awarding fees in connection with the initial round of motion practice.
7 The court obviously utilized the then-current minimum wage of $7.25 an hour. Under the amendment to the constitution approved in November 2013, the New Jersey minimum wage was increased to $8.25 an hour, effective January 2014, and tied to increases in the consumer price index thereafter. N.J. Const. art. I, 23.
8 Although child-related tax credits temporarily reduced defendant's total tax, these tax reductions should not be assumed in calculating the long-term tax consequences of the alimony award.
9 For illustrative purposes only, we note that according to the child support guidelines worksheet attached to the court's initial emancipation order, plaintiff's $290 in weekly earnings and $970 in alimony resulted in $232 in tax an effective tax rate of over eighteen percent, assuming allowances for both daughters. At that tax rate, defendant would need $5930 monthly to yield $4863 in net income. Subtracting $1247 in imputed earnings, she would need alimony of $4683 in monthly alimony, or $1089 a week. On the other hand, according to the same child support worksheet, plaintiff's total tax was $682 a week or $35,464 annually, on a gross income of $3154 weekly or $164,000, after deducting $970 weekly in alimony. That results in net income of over $128,536. After subtracting plaintiff's budgetary needs $6419 monthly or $77,028 annually plaintiff would be left with $51,508, or slightly less than $1000 per week.