J.S. v. K.S.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2981-16T3
J.S.,
Plaintiff-Appellant,
v.
K.S.,
Defendant-Respondent.
_____________________________
Argued May 8, 2018 – Decided May 17, 2018
Before Judges Reisner and Hoffman.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Camden County,
Docket No. FM-04-1503-15.
Jonathan E. Ingram argued the cause for
appellant (Borger Matez, PA, attorneys; Gary
L. Borger, on the briefs).
John B. Kearney argued the cause for
respondent (Kearney, Burns & Martone, PC,
attorneys; Scott D. Burns, on the brief).
PER CURIAM
Plaintiff J.S. appeals from a February 7, 2017 amended Final
Judgment of Divorce. Plaintiff argues the trial judge unfairly
limited her from testifying about the marital standard of living,
resulting in an insufficient alimony award. She also argues the
judge erred in denying counsel fees. We affirm.
The parties married in 1987. Defendant worked throughout the
marriage and continues to work at an annual salary of $75,400.
Plaintiff worked during most of the marriage until she was laid
off in 2013; at that time, she earned an annual salary of $33,000.
Plaintiff did not seek employment following her layoff. She claims
to suffer from hearing loss and back, neck, and knee pain, which
prevent her from working.
Plaintiff's initial attorney failed to file a completed Case
Information Statement (CIS), and apparently requested little, if
any, discovery from defendant. After the close of discovery, but
three months before the trial began, plaintiff retained her current
counsel. At trial, plaintiff's counsel attempted to elicit
testimony from plaintiff regarding the marital standard of living
and her current living expenses. Plaintiff's counsel attempted
to use a statement of expenses prepared for litigation in order
to refresh plaintiff's memory as to her expenses. However, defense
counsel objected, stating plaintiff failed to provide the
information during discovery or in her CIS. Plaintiff's counsel
argued he did not wish to enter the statement into evidence, but
just to use it to refresh plaintiff's memory. The judge ruled,
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"[D]iscovery is over. . . . We're at trial. . . . If you didn't
provide it to the defendant, it doesn't come in."
Notwithstanding this ruling, the judge did allow plaintiff
to testify about tax returns, who paid household expenses, home
improvements, an inheritance from her mother, automobiles,
vacations, and going out to dinner. Plaintiff also testified
about her hearing loss and surgeries. However, on cross-
examination, she provided confusing and contradictory testimony
about who paid the household bills and the mortgage, and when the
bills were paid.
Six days later, when the trial continued, plaintiff's counsel
requested the judge reconsider the ruling that "precluded
[plaintiff] from testifying about living expenses." The judge
replied that he did not bar plaintiff's testimony about living
expenses; instead, he ruled "that no new CIS could be admitted as
evidence." He clarified that plaintiff could not read into the
record a statement of expenses, and he barred "the documents that
[plaintiff] wants to admit into evidence, but not testimony."
However, when plaintiff's counsel requested permission to reopen
plaintiff's testimony after the judge clarified his previous
ruling, the judge denied the request, stating, "Nope. She
testified."
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In his findings and conclusions regarding alimony, the trial
judge went through each of the statutory factors set forth in
N.J.S.A. 2A:34-23(b). Significantly, the judge found plaintiff
lacked credibility. He found plaintiff was "voluntarily
underemployed," and imputed an annual income of $33,000, her last
earned salary. In terms of plaintiff's health, the judge found
plaintiff offered no evidence that she is unable to work. The
judge found the parties maintained "a modest middle class
lifestyle" during the marriage and both parties will be able to
continue a comparable standard of living given the alimony and
equitable distribution. The judge further noted plaintiff's
failure "to comply with [c]ourt [r]ules requiring a completed CIS
and full financial disclosure," as well as the fact that she
currently shares living expenses with her adult daughter.
Nevertheless, the judge awarded plaintiff open durational alimony
of $350 per week. In addition, the judge found both parties had
the ability to pay their own attorney fees.
On appeal, plaintiff argues the trial judge erred in not
allowing her to testify as to the marital standard of living; due
to this error, she contends the judge did not fully consider her
support needs and the marital standard of living in setting
alimony, requiring a remand. Plaintiff also argues her financial
and health conditions entitle her to an award of counsel fees.
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We accord deference to the factual findings of the Family
Part "[b]ecause of the family courts' special jurisdiction and
expertise in family matters . . . ." Cesare v. Cesare,
154 N.J.
394, 413 (1998). We reverse only if the Family Part judge's
conclusions are "clearly mistaken" or "wide of the mark," to
"ensure that there is not a denial of justice." Parish v. Parish,
412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of
Youth & Family Servs. v. E.P.,
196 N.J. 88, 104 (2008)).
I
Our review of an alimony award is limited. On appeal,
[a] trial court's findings regarding alimony
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. Substantial weight should be given to
the judge's observations of the parties'
demeanor and credibility.
[J.E.V. v. K.V.,
426 N.J. Super. 475, 485
(App. Div. 2012) (citation omitted).]
N.J.S.A. 2A:34-23(b) sets forth factors to consider in the
trial court's award of alimony. "The goal of alimony is to assist
the supported spouse in achieving a lifestyle 'reasonably
comparable' to the one enjoyed during the marriage." J.E.V., 426
5 A-2981-16T
3 N.J. Super. at 485 (quoting Steneken v. Steneken,
183 N.J. 290,
298-99 (2005)).
Here, the trial judge reviewed each factor of
N.J.S.A. 2A:34-
23(b). However, he acknowledged that plaintiff's failure to file
a completed CIS impeded his analysis of plaintiff's needs.
Plaintiff testified to some household expenses, who pays the
mortgage, vacations and dinners out during the marriage. However,
the judge prohibited plaintiff's counsel from asking additional
questions and did not allow plaintiff to continue her testimony
after testifying the first day.
The initial question presented is whether the trial judge
should have allowed plaintiff to testify further as to the marital
standard of living and current expenses. A witness is permitted
to use a document to refresh his or her memory while testifying;
however, it is improper to simply read a document used for
recollection into testimony. Lautek Corp. v. Image Bus. Sys.
Corp.,
276 N.J. Super. 531, 546 (App. Div. 1994).
Here, plaintiff's counsel attempted to use a document to
refresh plaintiff's memory. However, counsel's method for
refreshing her memory was to ask plaintiff a question and then
have her repeatedly read the answer from the document. The trial
judge properly sustained objections to that method because it
essentially amounted to reading the document into the record. See
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Lautek,
276 N.J. Super. at 546 ("A witness may not merely parrot
a statement used to refresh recollection, thus making admissible
a portion of a document that itself may be inadmissible.").
Six days later when the trial continued, plaintiff's counsel
requested the judge reconsider his ruling precluding plaintiff
from testifying about living expenses. The judge clarified his
ruling as barring only the admission of documents into evidence
that plaintiff failed to provide in discovery, but not testimony.
However, the judge then refused to allow plaintiff to testify
further.
Based upon our review of the record, including the confusion
regarding the judge's initial ruling, we conclude the denial of
the request to reopen plaintiff's testimony did not result in
harmful error. We therefore discern no basis to remand, as
requested by plaintiff. The critical determination affecting
alimony was the judge's adverse credibility findings regarding
plaintiff's claimed inability to work. On the first day of trial,
plaintiff did provide considerable testimony about vacations,
dinners out, and household expenses; however, the judge concluded,
"Plaintiff's testimony regarding living expenses is simply not
credible." Plaintiff tried to claim she spent $31,000 since June
2015 on medical bills, but the judge found that "when she was
pressed for a specific amount, she conceded it was only $1200."
7 A-2981-16T3
Based upon our review of the trial record, it is unlikely further
testimony from plaintiff would have affected the alimony award.
In the end, the judge considered all the information admitted into
evidence, followed the statute, and properly determined alimony.
Accordingly, we find no basis to disturb the judge's alimony award.
II
A family judge's assessment of legal fees in a divorce action
is discretionary. 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." Slutsky v. Slutsky,
451 N.J. Super. 332, 365-66 (App. Div. 2017) (quoting Strahan v.
Strahan,
402 N.J. Super. 298, 317 (App. Div. 2008)).
N.J.S.A. 2A:34-23 authorizes the trial court to award counsel
fees in matrimonial actions. The court "shall consider the factors
set forth in the court rule on counsel fees, the financial
circumstances of the parties, and the good or bad faith of either
party."
N.J.S.A. 2A:34-23. Rule 5:3-5(c) provides factors to
consider in awarding counsel fees. In a matrimonial action, a
court
must consider whether the party requesting the
fees is in financial need; whether the party
against whom the fees are sought has the
ability to pay; the good or bad faith of either
party in pursuing or defending the action; the
nature and extent of the services rendered;
and the reasonableness of the fees.
8 A-2981-16T3
[Mani v. Mani, 183 N.J. 70, 94-95 (2005)
(emphasis omitted).]
Plaintiff argues she is entitled to an award of counsel fees
because she is "in a much worse financial position than defendant,"
and is unable to work due to her health; however, those reasons
are contrary to the trial judge's findings. The judge found
plaintiff has the ability to pay her own attorney fees using the
money withdrawn from her IRA or money inherited from her mother.
The judge also found plaintiff has the ability to work. There is
no indication in the record or the judge's opinion that defendant
acted in bad faith, or caused plaintiff to incur excessive fees
in the case. Accordingly, we find no abuse of discretion in the
judge's denial of plaintiff's request for counsel fees.
Affirmed.
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