JESUS MANDULEY v. ANA M. PEREZ-MANDULEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JESUS MANDULEY,

Plaintiff-Appellant,

v.

ANA M. PEREZ-MANDULEY,

Defendant-Respondent.

_________________________________

September 18, 2014

Submitted September 8, 2014 - Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FM-09-2762-12.

Mario M. Blanch, attorney for appellant.

Anna M. Perez-Manduley, respondent pro se.

PER CURIAM

Plaintiff Jesus Manduley ("Manduley"), a trash collector employed by the city of West New York, appeals the Family Part's award of four years of limited duration alimony of $3640 annually to his ex-wife, defendant Ana Perez-Manduley ("Perez"). Manduley also appeals the Family Part's order compelling him to pay $1750 to Perez as a portion of the counsel fees she incurred in this divorce case. We affirm.

The case was tried over three intermittent days before Judge D'Alessandro in Hudson County. Although both parties were represented at trial by counsel, the ex-wife Perez is now self-represented on appeal.

The proofs reflect that the parties married in March 2005 in the Dominican Republic. After the wedding, Manduley returned to New Jersey and resumed his employment with West New York. Perez, a nurse (or nurse assistant) by training in the Dominican Republic, remained there and resided with her adult daughter for two-and-a-half years because she was not then a United States citizen. During that interval, Manduley periodically sent money to Perez to help defray her living costs. She eventually moved to the United States and the two parties lived together in New Jersey. There are no children of this marriage.

Although the parties' economic proofs at trial were somewhat truncated, the record shows that Manduley earned more than Perez. Manduley's earnings as a trash collector reported on his IRS 1040 forms were $35,144 in 2011 and $41,9271 in 2012. In addition, Manduley obtained unreported income collecting and selling recyclables, which the trial judge estimated was $2600 annually.

Perez, meanwhile, could not obtain work as a nurse in the United States because she does not have a license to do so here and also because she does not speak English. She did obtain part-time work as a home health aide. Her 1040 reported income was $10,016 in 2011 and $5399 in 2012. Perez also earned unreported income. The court imputed income to her, finding that she could earn a combined amount of $20,020 to $22,080 from all sources.

The record shows that Perez was dependent on her husband when she lived in the Dominican Republic. While the couple lived together in New Jersey, Manduley paid the lion's share of the household expenses, even though they had no shared bank account.

After the parties separated, Perez borrowed money from a nephew and sold some of her jewelry to defray her legal costs. As part of the relief she sought at trial, she requested that Manduley reimburse her for the nephew's loans. The trial judge declined to do so because Manduley had no notice of the loans and the loans had not been substantiated. Perez has not filed a cross-appeal contesting this disposition.

At trial, Perez requested an award of four years of limited duration alimony at $500 per month, or $6000 per year. During the course of his testimony, Manduley indicated that he would be willing to pay Perez alimony if the City resumed providing him with overtime opportunities, but he otherwise argued through his counsel that alimony should not be awarded.

After sifting through the proofs, Judge D'Alessandro initially issued an oral ruling from the bench on June 24, 2013. The judge awarded Perez a reduced sum of limited duration alimony of $70 per week per month, or $3640 per year. The judge also ordered that Perez receive a fractional share of Manduley's pension as accrued during the time of their marriage, a facet of the final judgment that is not challenged on appeal.

After Manduley filed the present appeal, the trial judge issued a six-page letter dated August 28, 2013, pursuant to Rule 2:5-1(b) with amplified reasons. Manduley argues that we should disregard the amplification letter because it conflicts in certain respects with the findings the judge made in his oral ruling. We reject his request, as the substance of the judge's amplification letter has ample support in the trial record. The judge was entitled in his written analysis to correct any misstatements he may have made in his prior oral ruling. See, e.g., State in Interest of J.R., 244 N.J. Super. 630, 635 (App. Div. 1990).

Manduley argues that the trial judge's award of alimony and partial counsel fees to Perez should be overturned. On both issues, our scope of appellate review is narrow.

As to alimony, we will not overturn such awards unless we conclude that the trial court "clearly abused its discretion, failed to consider all of the controlling legal principles or . . .[are] well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole." Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996) (citing Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993)); see also Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Similarly, we will not disturb a counsel fee award in a matrimonial case under Rule 4:42-9(a)(1) and Rule 5:3-5(c) except "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) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).

Here, the award of what the trial judge aptly characterized as "nominal" limited duration alimony to Perez is consistent with the proofs and the standards for awarding such alimony under N.J.S.A. 2A:34-23(c). These parties are both of limited means. The judge's fundamental point that Manduley provided the primary support for the family during the marriage, and that he should be able to afford a modest alimony obligation by cutting back on expenses for things such as cigarettes and alcohol is supported by substantial credible evidence in the record. Although Manduley contends that Perez can earn as much as $27,000 annually, the judge sufficiently explained why attaining that level of income was not likely for her. The judge also fairly considered Manduley's ability to supplement his wages from the City with other income, which the judge found to be substantiated by Manduley's own CIS.

The four-year term of the alimony award is fair, for this seven-year marriage. The award equitably serves the purposes of limited duration alimony under the law, which is to address a dependent spouse's post-divorce needs following shorter-term marriages, in situations where permanent or rehabilitative alimony is not warranted but where economic assistance to the dependent spouse for a short period of time is nevertheless justified. See Gnall v. Gnall, 432 N.J. Super. 129, 150 (App. Div. 2013); J.E.V. v. K.V., 426 N.J. Super. 475, 485-86 (App. Div. 2012).

We discern no abuse of discretion in the modest counsel fee award of $1750. Perez clearly is in an inferior economic position, and the partial amount of her fees that the judge shifted to Manduley is certainly not unreasonable. There is no reasonable basis to conclude that she pursued her interests in this divorce case in bad faith or in an overly litigious manner.

The final judgment is affirmed in all respects.

1 Plaintiff's financial Case Information Statement ("CIS") proposed that his anticipated income for 2012 was $29,384. As reflected in his 1040 form for 2012, however, that number turned out to be much higher.