KEVIN J. FRIEL v. CARLY A. BRAUN-FRIEL
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4996-15T3
KEVIN J. FRIEL,
Plaintiff-Respondent,
v.
CARLY A. BRAUN-FRIEL,
Defendant-Appellant.
_________________________________
Argued September 27, 2017 – Decided March 5, 2018
Before Judges Nugent and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic
County, Docket No. FM-01-0413-16.
D. Ryan Nussey argued the cause for appellant
(Klineburger and Nussey, attorneys; D. Ryan
Nussey and Carolyn G. Labin, on the brief).
Shirley Grasso argued the cause for
respondent.
PER CURIAM
Defendant appeals from a provision of the parties' Final
Judgment of Divorce (FJOD) requiring plaintiff to pay her limited
durational alimony of $130 per week for two years. The relevant
section of the alimony statute,
N.J.S.A. 2A:34-23(c), provides
that in marriages of less than twenty years, absent exceptional
circumstances, the duration of alimony shall not exceed the length
of the marriage. Defendant argues she established exceptional
circumstances entitling her to open-durational alimony and that
the trial court erred by finding to the contrary. Alternatively,
she argues she is entitled to a higher weekly alimony payment.
Although the trial court found exceptional circumstances, it
did not explain why it nonetheless limited alimony to the duration
of the marriage. Additionally, the court considered defendant's
pending claim for social security disability as though an award
had been made. Last, the court's finding concerning defendant's
financial contribution to the marriage does not appear to have
support in the record. Absent explanation from the trial court
for these findings and decisions, we cannot conclude the court
acted within its discretion in rendering the alimony award. For
that reason, we vacate the award and remand this matter to the
trial court for further proceedings.
These are the facts. The parties married in October 2010 and
separated two years and eleven months later in September 2013.
Plaintiff filed a divorce complaint in November 2014 and the court
entered the FJOD on June 6, 2016.
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Because the parties had no children and, for the most part,
did not dispute equitable distribution, the primary issue they
litigated at the hearing on plaintiff's divorce complaint was
alimony. The court conducted the hearing in February 2016.
Plaintiff, then age forty-six, provided the following testimony.
He held a Bachelor's degree in criminal justice. Employed as a
police lieutenant in a municipal police department, he earned
$106,483 annually and took home $3961.97 per month based on the
assumption there were 4.3 weeks in each month. In addition to
state and federal deductions, deductions were made for his pension,
certain work benefits and union dues, and child support for his
two children born of a previous marriage. The child support
deductions from his paycheck were $498 every two weeks.
Plaintiff's monthly mortgage payment was $2123. He also paid
for his utilities, cable, internet, and a cell phone. He made
automobile payments and paid for automobile insurance. In
addition, as required by the judgment of divorce that terminated
his first marriage, he accepted responsibility for paying one-half
of his children's college tuitions. In February 2016, at the time
of the hearing on plaintiff's divorce complaint concerning
defendant, plaintiff's oldest child was attending college.
Plaintiff also testified he had pre-marital savings of
$59,099.65. As of the time of the hearing, the account balance
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was $13,379.17. According to plaintiff, since his separation from
defendant, he was drawing approximately $1114 a month from the
account to satisfy his financial obligations. He supported his
testimony with documentary evidence concerning the account.
Defendant, age thirty-five at the time of the hearing,
testified that following the parties' separation she leased a
first floor apartment for $1000 per month and resided there with
her son, who attended school nearby. She has a high school degree.
She attended the Philadelphia Restaurant School for five months.
Defendant is disabled. The parties stipulated to the report
of a doctor who had conducted an independent medical examination
(IME) of defendant at plaintiff's request. The doctor reviewed
numerous medical records and reports concerning defendant and
examined her. He concluded, "[a]fter thoroughly reviewing the
medical records which I received, I do not believe that [defendant]
is capable of full or part-time employment." As a consequence of
the parties' stipulation to the doctor's report, the trial court
entered an order that stated, among other things, "[a]s defendant
is disabled and has been deemed unable to work by [the doctor who
performed the IME], neither party shall be required to present any
expert on defendant's health or employability."
Defendant testified that after dating plaintiff for
approximately one and one-half years, they married in October
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2010. When they first met, defendant was employed at a children's
rehabilitation medical daycare center as a satellite office
manager. She earned approximately $18 per hour.
Defendant had suffered from a condition known as reflex
sympathetic dystrophy for approximately ten years before she met
plaintiff. She took many medications, was undergoing physical
therapy, and was receiving monthly Ketamine infusions. She
explained the Ketamine helped control her pain by blocking pain
transmitters. According to defendant, plaintiff was well aware
of her medical condition when they first met. She had a visible
scar on her neck from an incision made when her trachea was removed
due to a tumor she developed as a result of Ketamine infusions.
The tumor was removed in August 2008. Defendant said plaintiff
told her that her health history did not matter, he would never
leave her, and he would always be a part of her life. He said he
would help her through her illness and always be there for her.
In the summer of 2010, after defendant started dating
plaintiff but before they married, she had a mass removed from her
pelvis. Plaintiff supported her through the surgery and her
recovery. Defendant also tore her patella shortly before her
wedding. She had her knee surgically repaired after she married
plaintiff.
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Defendant held her job during 2010, the year she married
plaintiff, though she missed quite a bit of time due to her surgery
and accidents. She had previously earned $33,550 per year working
for the children's rehabilitation center, and $21,050 working at
a second job. She was unable to return to work and hold a full-
time job after marrying plaintiff.
Defendant testified that during her marriage to plaintiff,
he took care of her son. Plaintiff encouraged her son to call him
"Dad." He was the only father defendant's son had known. When
they married, plaintiff said he was going to adopt defendant's
son, but he never followed through. In April 2015, after plaintiff
had filed for divorce, defendant obtained an order establishing
paternity and compelling her son's biological father to pay child
support.
Defendant testified her medical condition worsened
considerably during her marriage to plaintiff. Her bank account
had a balance of $5.85. She testified she co-owned a 2011 Toyota
Sienna with plaintiff, owned no real estate, and had no retirement
accounts. She received $258 per week in pendente lite alimony
from plaintiff, and he also made the automobile payments and
maintained insurance on the automobile.
In addition to her $1000 monthly rent, defendant paid for
utilities and a cellular telephone for her and her son. She also
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paid for cable and internet for her apartment. She anticipated
having to make car and insurance payments in the future.
Obviously, she had to provide food for her and her son. She also
incurred expenses for clothing, hair care, and unreimbursed
medical treatment and prescriptions.
According to her case information statement, defendant's
monthly budget was $4974. She anticipated that social security
disability payments would help her meet the budget.
After hearing the parties' testimony and considering their
exhibits, the trial court awarded defendant limited durational
alimony of $130 per week for two years. In a written decision
accompanying its order, the court noted plaintiff was paying
defendant pendente lite support in the amount of $258 per week,
plus $410.22 for a monthly car payment and $106.92 per month for
insurance, for total support of $1626.54.1 After making
adjustments to the expenses defendant listed in her case
information statement, the court determined her monthly expenses
were $4124. Further noting defendant received child support in
the amount of $1367 per month, the court deemed defendant's need
1
The court took "official notice that the [parties'] Sienna has
a probable value of approximately $15,000.00." The court ordered
the parties to sell the vehicle as soon as possible, the net
proceeds to be paid to defendant to "enable her to purchase an
alternative vehicle without a loan or with a loan with a relatively
low balance."
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to be $2757. The court commented, "[d]efendant anticipates
receiving social security disability in the amount of $1600.00 per
month, leaving a monthly need of $1157.00 per month or $269.00 per
week. It is unclear how defendant is meeting her current expenses
even with current spousal support." The court did state, however,
defendant had "indicated that she meets her budget by not paying
all of her bills all of the time."
Next, the court reviewed plaintiff's monthly income and
expenses. The court noted with respect to plaintiff's payment of
college tuition for his oldest child, "a student loan or Parent
Plus loan could greatly reduce or virtually eliminate the monthly
payment for a period of time, thus freeing up more money for the
plaintiff for other purposes."
The court considered the factors relevant to alimony,
contained in
N.J.S.A. 2A:34-23(b), as well as factors indicative
of exceptional circumstances requiring an adjustment to the
duration of alimony, which are set forth in
N.J.S.A. 2A:34-23(c).
As to the statutory factors in subsection (b) concerning the award
of alimony, the court gave the most weight to the need and ability
of the parties to pay, the duration of the marriage, the age,
physical and emotional health of the parties, and the earning
capacities, educational levels, vocational skills and
employability of the parties. As to factors suggesting exceptional
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circumstances, the trial court gave considerable weight to the
degree and duration of defendant's dependency on plaintiff during
the marriage, as well as defendant's chronic illness and unusual
health circumstance.
In making its determination, the court noted both parties had
contributed financially to the marriage, though defendant had not
been employed since 2013. The court stated that at the
commencement of the marriage defendant was employed and earning
$18 per hour.
During its analysis of the factors contained in
N.J.S.A.
2A:34-23(b), the court made downward adjustments to defendant's
expenses, including the $550 per month cost of healthcare. The
court stated, "the charge for anticipated healthcare appears
excessive as well. In fact, if the defendant obtains social
security disability benefits, she will be also eligible for
Medicaid. Even then, if she needs to go into the marketplace,
$550.00 seems higher than she will have to pay given her limited
income."
On appeal, defendant argues because she met the criteria for
"exceptional circumstances" set forth in
N.J.S.A. 2A:34-23(c), the
court erred by limiting the duration of alimony to the length of
the marriage. Defendant asserts "the trial court's application
of the statutory factors supported a finding of open-durational
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alimony." Defendant contends because she suffers from chronic
illness, is unemployable, and has no savings, she is entitled to
open-durational alimony.
Defendant also argues that in view of plaintiff's ability to
pay additional alimony, the court erred by only awarding $130.
Defendant maintains the court placed too little emphasis on her
economic dependency upon plaintiff during the course of their
marriage.
Plaintiff responds the court appropriately weighed all
relevant statutory factors. Plaintiff notes the court carefully
considered the exceptional circumstances that would permit it to
award alimony for a duration longer than the marriage, but did not
abuse its discretion by determining not to do so.
We review the trial court's alimony award under well-settled
standards. A trial court has broad but not unlimited discretion
in determining alimony. The court must consider the factors set
out in
N.J.S.A. 2A:34-23(b) and case law defining the purpose of
alimony. Steneken v. Steneken,
367 N.J. Super. 427, 434 (App.
Div. 2004), aff'd in part, modified in part,
183 N.J. 290 (2005).
The factors enumerated in
N.J.S.A. 2A:34-23(b) are:
(1) The actual need and ability of the
parties to pay;
(2) The duration of the marriage or civil
union;
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(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, with
neither party having a greater entitlement to
that standard of living than the other;
(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;
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(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;
(13) The nature, amount, and length of
pendente lite support paid, if any; and
(14) Any other factors which the court
may deem relevant.
"For any marriage or civil union less than 20 years in duration,
the total duration of alimony shall not, except in exceptional
circumstances, exceed the length of the marriage or civil union."
N.J.S.A. 2A:34-23(c).
Exceptional circumstances which may require an
adjustment to the duration of alimony include:
(1) The ages of the parties at the time
of the marriage or civil union and at the time
of the alimony award;
(2) The degree and duration of the
dependency of one party on the other party
during the marriage or civil union;
(3) Whether a spouse or partner has a
chronic illness or unusual health
circumstance;
(4) Whether a spouse or partner has given
up a career or a career opportunity or
otherwise supported the career of the other
spouse or partner;
(5) Whether a spouse or partner has
received a disproportionate share of equitable
distribution;
(6) The impact of the marriage or civil
union on either party’s ability to become
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self-supporting, including but not limited to
either party’s responsibility as primary
caretaker of a child;
(7) Tax considerations of either party;
(8) Any other factors or circumstances
that the court deems equitable, relevant and
material.
[Ibid.]
"[B]ecause of the family courts' special jurisdiction and
expertise in family matters, appellate courts should accord
deference to family court factfinding." Genovese v. Genovese,
392 N.J. Super. 215, 222 (App. Div. 2007) (quoting Cesare v. Cesare,
154 N.J. 394, 413 (1998)). Findings by the trial judge are
"binding on appeal when supported by adequate, substantial,
credible evidence." Ibid. For these reasons:
To vacate a trial court's finding concerning
alimony, we must conclude that the trial court
clearly abused its discretion or failed to
consider all of the controlling legal
principles, or we must otherwise be 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 all
of the proofs as a whole.
[Gonzalez-Posse v. Ricciardulli, 410 N.J.
Super. 340, 354 (App. Div. 2009).]
In the case before us, the trial court considered the
statutory criteria in
N.J.S.A. 2A:34-23(b) and (c). However, the
trial court was unclear concerning three issues. First, the trial
13 A-4996-15T3
court determined defendant had contributed financially to the
marriage because she had been employed at the inception of the
marriage in 2010 and had worked as well in 2013. However,
defendant testified due to accidents and medical conditions she
suffered, she worked only five of twelve months the year she was
married, 2010. She was married in October 2010 and underwent
surgery in November of that year. When specifically asked if she
returned to work in January 2011, she stated she did not. She
attempted to work for H&R Block in 2013 for two and one-half to
three months, but was let go because she "couldn't really perform
job duties that other people could." Thus, according to defendant,
she contributed little or nothing to the marriage from her job.
Yet, the trial court seemed to consider her financial contribution
to the marriage a factor to which the court gave some weight,
albeit not as much as other factors.
Second, the trial court considered defendant had a claim for
social security disability pending. The court factored that into
consideration as though defendant were receiving the social
security disability. The court did not cite any source with
respect to when defendant would receive social security
disability, assuming she prevailed on her claim.
Lastly, although the court found two of the exceptional
circumstances "which may require an adjustment to the duration of
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alimony," the court did not explain why it was not making such an
adjustment. In instances where a trial court finds a party has
established exceptional circumstances that may require an
adjustment to the duration of alimony, and the court declines to
make such adjustment, the court must provide reasons for its
decision. Here, we are unable to discern why the court did not
adjust the duration of alimony despite defendant establishing
exceptional circumstances. Although the statute does not mandate
an adjustment, a trial court must provide its reasons for not
doing so. Providing reasons demonstrates to the parties that a
decision is not arbitrary and permits proper appellate review.
Absent further explanation concerning the court's finding
defendant had contributed economically to the marriage, the
court's consideration of social security disability payments that
had yet to be awarded, and the court's non-adjustment to the
duration of alimony despite finding exceptional circumstances that
would warrant an adjustment, we cannot determine whether the court
misapplied its discretion. For that reason, we remand this matter
for the court to specifically address these issues, after giving
the parties the opportunity to address them.
The provision of the FJOD concerning payment by plaintiff to
defendant of durational alimony is vacated and this matter is
15 A-4996-15T3
remanded to the trial court for further proceedings consistent
with this opinion. We do not retain jurisdiction.
16 A-4996-15T3
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