SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued September 13, 2004 -- Decided April 6, 2005
LONG, J., writing for a majority of the Court.
The appeal in this family law case presents the issue of whether marital fault is a factor in the determination of alimony and the award of counsel fees.
Plaintiff, Brenda Mani and defendant, James Mani, met in 1970 when she went to work for him in his seasonal amusement business on the Seaside Heights boardwalk. James, a college graduate, was at the time a half-owner of the boardwalk business and a partner in a travel agency in Florida that later failed. Brenda was a college student. Brenda graduated in 1971 and taught preschool for two years while working with James at his business during the summer.
Before the parties were married in 1973, they purchased their first home in Toms River for $30,000. They jointly contributed $5,000 or $6,000 out of profits from the boardwalk business to buy the property. The balance of the purchase price was financed by a $25,000 mortgage held by Brenda’s father.
After their wedding, the parties, who have no children, worked together in the boardwalk business 100 hours per week from Memorial Day through Labor Day of each year. They also worked weekends in the fall and Christmas. During the marriage, Brenda’s father gave her significant gifts of money and investments in her name only. She received stock in a family-owned business that appreciated to $1.7 million by 1991. As a condition of the gift, James was required to sign a waiver stating that he was not entitled to share in the stock. Brenda also received an interest in an investment partnership formed by her father for his five children. Brenda liquidated her interest in the partnership in 1987 for just over $500,000 and invested that money in her name. Brenda’s investment income was needed to pay for the couple’s expenses because income from the boardwalk business was not enough to support their comfortable lifestyle.
In 1986, the parties purchased another home in Toms River for $145,000 using proceeds from Brenda’s stock and $129,000 from the sale of the other house. The property, at 22 Central Avenue, was conveyed to the parties as husband and wife, although title was later transferred to Brenda. The parties razed the existing house on that lot and built another in its place, ultimately spending between $500,000 and $750,000 in improvements on a lavish new home.
In 1993, the parties retired from the boardwalk business and lived an extravagant lifestyle almost exclusively out of Brenda’s investment income. James worked briefly for real estate brokers in Florida, although he earned only about $20,000 total in income.
The couple spent seven years together in retirement before Brenda discovered that her husband was having an affair with a woman with whom the parties socialized. Brenda filed a complaint for divorce alleging adultery and extreme cruelty. The trial judge granted James’ motion for pendente lite relief, awarding $1,006 per week as spousal support and $7,000 as counsel fees.
By the time of trial, Brenda’s investment assets were valued at $2.4 million. James’ assets consisted of an IRA with a value of $80,000. He also had a partial interest in accounts held jointly by the couple and a shared interest in property from his father’s estate valued at $50,000.
At trial, James sought permanent alimony of over $68,000 per year and Brenda sought to deny alimony altogether. The trial judge determined that the property at 22 Central Avenue, which at the time of trial was under contract for sale for $500,000, was subject to equitable distribution and that James was entitled to thirty percent of the net proceeds of the sale ($141,000). The judge held that Brenda’s remaining assets were immune from equitable distribution. With respect to alimony, the judge awarded James $610 per week based on his economic dependency. In reaching that conclusion, the judge attributed to James the ability to earn a minimum of $25,000 annually.
James appealed, claiming that the alimony award was insufficient to maintain the marital standard. He also argued that he was entitled to half of the proceeds of the sale of the marital residence, and that he should have been awarded counsel fees. Brenda cross-appealed, arguing that James was not entitled to any alimony. She contended that James had not contributed remunerative activities to the marriage, and that his economic dependency was not occasioned by the marriage, but by his own indolence.
The Appellate Division affirmed, holding there was sufficient credible evidence in the record to support the award of permanent alimony. It reasoned that the reduction in James’ standard of living was justified, in part, by the finding that Brenda had established he was adulterous and committed acts of extreme cruelty. The court observed that the parties’ standard of living was not the result of their joint efforts, but solely due to gifts from Brenda’s father.
The Supreme Court granted James’ petition for certification on issues of alimony and counsel fees.
HELD: Marital fault is irrelevant to alimony except in two narrow instances: cases in which the fault negatively affects the economic status of the parties and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice. Marital fault is irrelevant to a counsel fee award.
1. Historically, the reason for alimony is not clear. That lack of clarity explains why, although alimony is now awarded in every jurisdiction, there is no consensus regarding its purpose. New Jersey cases have long expressed the view that alimony is neither a punishment for the payor nor a reward for the payee. (pp. 9-14)
2. N.J.S.A. 2A:34-23(b) provides that when ordering alimony, a court shall consider a non-exclusive list of enumerated factors. The words “marital fault” and “responsibility for the breakdown of the marriage” do not appear among the factors, although there is a “catch all category” that arguably permits a court to consider any other factor it “may deem relevant.” N.J.S.A. 2A:34-23(g) further guides the court’s determination of alimony, providing that; “[i]n all actions for divorce other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.” The genesis of that provision bears on the issue before the Court. (pp. 14-15)
3. New Jersey enacted a comprehensive divorce reform package, the Divorce Reform Act, in 1971. Before the passage of the Act, the Legislature created the Divorce Law Study Commission, which issued a Final Report that contained findings about existing divorce law in New Jersey and proposed a Divorce Reform Bill. Because New Jersey law prior to 1971 only provided for divorce on the grounds of fault, the focus of the Commission was the need for legal recognition of no-fault divorce on grounds of separation. The Commission proposed such a new ground where there is no prospect for reconciliation between the parties. The final Divorce Reform Act gave couples the right to divorce after eighteen months of separation regardless of which party caused the breakdown in the marriage. The Commission did not recommend the complete elimination of fault as a consideration in marriage termination, and the Legislature followed suit, preserving the traditional fault-based grounds for divorce. The Commission’s Final Report also briefly addressed the relationship between fault and alimony, noting that where fault is asserted as a ground for relief, it would be a proper consideration in dealing with alimony and support. The Commission proposed the language that was adopted by the Legislature in N.J.S.A. 2A:34-23(g). In its comments to the proposed bill’s alimony provisions, the Commission stated that as long as fault grounds for divorce are retained, it was logical that fault should affect judicial discretion in awarding alimony. (pp. 15-21)
4. Although our case law has consistently recognized that, under our statutory scheme, fault may be considered in calculating alimony, courts have declined to make wide-ranging use of fault in that context. In Kinsella v. Kinsella, 150 N.J. 150 N.J. 276 (1977), this Court noted that the practical consequences of succeeding in a divorce action on fault-based grounds are minimal. Addressing N.J.S.A. 2A:34-23, the Court stated that the focus on the decision regarding alimony is generally on the financial circumstances of the parties, and that marital fault rarely enters into the calculus of an alimony award. The Court reaffirms that approach. Kinsella reflects the direction of our jurisprudence for a long period. During that time, the Legislature has, on several occasions, undertaken to amend the law in other respects. The Court takes that as some indication that the Legislature is satisfied with the general approach adopted in Kinsella and its forbears. (pp. 20-26)
5. In order to avoid the exercise of wholly unguided discretion by trial judges, the task of the Court in this case is to put some flesh onto Kinsella’s bones. After reviewing the cases from other jurisdictions and the conclusions of legal writers and scholars, the Court determines that in the narrow band of cases in which marital fault has negatively affected the economic status of the parties, it may be considered in the calculation of alimony. By way of example, if a spouse gambles away all savings and retirement funds, an appropriate amount representing the lost savings and retirement may be included in the alimony award to the other spouse. This conclusion flows from a relevance perspective. There can be no quarrel over the notion that fault that has altered the financial status of the parties is relevant in an alimony case. The same relevance notion does not apply to the ordinary fault grounds for divorce that lurk in the margin of nearly every case and therefore those grounds should not be interjected into an alimony analysis. The only exception to this rule is the narrow band of cases involving such egregious fault that society would not abide continuing the economic bonds between the parties. By way of example, California has legislatively barred alimony payments to a dependent spouse who has attempted to murder the supporting spouse. Where such conduct occurs, it may be considered in the initial determination of whether alimony should be allowed at all. (pp. 26-32)
6. In this case, there was no allegation that James’ marital fault had any economic consequences or that it was, in any way, egregious. Indeed, the trial judge did not weigh fault in the alimony analysis. Yet, the Appellate Division relied on James’ marital misconduct to justify the alimony award. Because the alimony award was a close call, the Court cannot say that the Appellate Division would have reached the same conclusion in the absence of the fault consideration. The Court therefore remands to the Appellate Division for reconsideration of alimony without regard to fault. (pp. 31-32)
7. The Court notes that this case involves nothing more than statutory interpretation. Neither the purposes underlying alimony, the words of the statute, nor the legislative history can be said to provide clear guidance as to the kind of fault that is to be considered in an alimony calculation. The dissent misperceives the Court’s role in such a case - the Court is not free to abdicate its responsibility to interpret legislation consistent with its language and with precedent that supplies content to broad statutory pronouncements. The Court also rejects the dissent’s suggestion that the holding announced today will create more mischief than it will resolve. By delimiting the kinds of fault that may be taken into account in an alimony calculus, the Court creates a template for uniformity and predictability in decision-making and relieves matrimonial litigants and their counsel from the need to act upon the nearly universal and irresistible urge for retribution that follows on the heels of a broken marriage. (pp. 32-34)
8. In awarding counsel fees, the relevant statute and Rules of Court require a court to 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 of the legal services rendered; and the reasonableness of the fees. The parties agree, as does the Court, that bad faith for counsel fee purposes relates only to the conduct of the litigation and not to the underlying issue of marital fault. Here, the trial judge did not explain the denial of James’ application for counsel fees. Nevertheless, the Appellate Division affirmed the denial, making reference to the substantial pendente lite award and the “proved grounds for divorce.” This Court takes the latter language to be an unwarranted reference to marital fault. The issue of counsel fees also must be remanded to the Appellate Division for reconsideration without regard to fault. (pp. 34-37)
JUSTICE WALLACE has filed a separate concurring opinion to state that, unlike the majority, he finds no need to redefine and expand upon the appropriate use marital fault in determining an alimony award. He is satisfied with the view expressed in Kinsella that “marital fault rarely enters in the calculus of an alimony award,” and notes that the trial judge in the present case did not consider fault in computing the alimony award.
JUSTICE RIVERA-SOTO has filed a separate opinion dissenting in part and concurring in part. He dissents from the majority’s holding regarding the consideration of fault in fixing alimony, expressing the view that the language of the Divorce Act, its legislative history, and our jurisprudence permit a court to use a parties’ proofs of the fault grounds for divorce to determine alimony that is fit, reasonable and just. He concurs in the majority’s holding on the issue of the consideration of fault in awarding counsel fees, but would not allow James another opportunity to submit the affidavit of services required for such an award.
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Appellate Division for reconsideration of the issues of alimony and counsel fees without regard to fault.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, and ALBIN join in JUSTICE LONG’s opinion. JUSTICE WALLACE has filed a separate, concurring opinion. JUSTICE RIVERA-SOTO has filed a separate opinion concurring in part and dissenting in part.
SUPREME COURT OF NEW JERSEY
A- 53 September Term 2003
BRENDA MANI,
Plaintiff-Respondent,
v.
JAMES J. MANI,
Defendant-Appellant.
Argued September 13, 2004 – Decided April 6, 2005
On certification to the Superior Court,
Appellate Division.
Dale E. Console argued the cause for
appellant.
Patrick T. Collins argued the cause for
respondent (Franzblau Dratch, attorneys).
Bonnie C. Frost argued the cause for
amicus curiae, New Jersey State Bar
Association (Edwin J. McCreedy,
President, attorney; Ms. Frost and
Stephen P. Haller, on the brief).
JUSTICE LONG delivered the opinion of the Court.
The appeal in this family law case presents the issue of whether marital
fault is a factor in the determination of alimony and the award of
counsel fees. We hold that marital fault is irrelevant to alimony except in
two narrow instances: cases in which the fault has affected the parties’ economic
life and cases in which the fault so violates societal norms that continuing
the economic bonds between the parties would confound notions of simple justice. The
former may be considered in the calculation of alimony and the latter in
connection with the initial determination of whether alimony should be allowed at all.
We likewise hold that marital fault is irrelevant to a counsel fee award.
I
The facts and procedures that gave rise to this appeal are as follows:
Plaintiff, Brenda Mani and defendant, James Mani met in 1970 when she went
to work for him in his seasonal amusement business on the Seaside Heights
boardwalk. James, a college graduate, was at the time, a half-owner of the
boardwalk business and a partner in a travel agency in Florida that later
failed; Brenda was a college student. Brenda graduated in 1971 and taught preschool
for two years while working with James at his business during the summer.
Before the parties were married in 1973, they purchased their first home at
400 Lexington Avenue in Toms River for $30,000. They jointly contributed $5,000 or
$6,000 out of profits from the boardwalk business to buy the property. The
balance of the purchase price was financed by a $25,000 mortgage held by
Brenda’s father. The house was purchased in Brenda’s name with the intention that
it would be used as the marital home.
After their wedding, the parties, who have no children, worked full time together
“side by side” at the boardwalk business 100 hours a week, from Memorial
Day through Labor Day each year. They also worked weekends in the fall,
over Christmas, and in the late spring but spent the remaining months at
trade shows or vacationing in Florida and Mexico.
During the early years of the marriage, Brenda’s father gave her and her
siblings significant gifts of money and investments, including checks for $10,000 a year.
Brenda also received tax-free bonds from her father, which, per her father’s instructions,
were always kept solely in her name.
In 1981, Brenda received a gift of stock from her father in a
family-owned business, Ultimate Corporation, that later traded publicly. As a condition of the
Ultimate stock gift, Brenda’s father required each of his children and their spouses
to sign a waiver stating that the spouses were not entitled to share
in the stock. Over the years, the stock rose in value and split
several times, eventually appreciating to $1.7 million in 1991. Brenda’s investment income was
needed to pay for the couple’s expenses because income from the boardwalk business
was not enough to support their comfortable lifestyle.
At some point Brenda began to sell her shares of Ultimate stock and,
with the proceeds, purchased tax-free bonds in her own name. According to Brenda,
she made those stock sales under the direction and advice of her father.
Although she discussed her investments with James, Brenda testified that she made all
final decisions about investing only after speaking with her broker and financial adviser.
James, on the other hand, claimed that he was a knowledgeable investor whose
ideas were the impetus for the stock sales.
In the early 1980’s, Brenda’s father formed a partnership called BAS for his
five children and made investments of bonds and stocks in the BAS account.
Every year, Brenda received roughly $40,000 from the partnership and the parties used
that money for living expenses. In 1987, Brenda liquidated her interest in BAS
in an amount just over $500,000, which she then placed in a stock
account. Again, the parties dispute the role of James’ financial advice in Brenda’s
decision to liquidate the stock.
In 1986, the parties purchased a second home in Toms River for $145,000
using proceeds from Brenda’s Ultimate Stock and $129,000 from the sale of the
Lexington Avenue house. That property, at 22 Central Avenue, was conveyed to the
parties as husband and wife. Later, title was transferred to Brenda. The parties
razed the existing house on that lot and built another in its place,
ultimately spending between $500,000 and $750,000 in improvements on a lavish new home.
In addition to the house on Central Avenue, Brenda purchased vacation and rental
properties in Florida with funds generated from her investments. She testified that the
Florida properties were ultimately a financial loss and that, as a result, she
sold them to pay her mortgage.
In 1993, when they were in their 40’s, the parties retired from the
boardwalk business and lived, in the words of the trial judge, an “extravagant”
lifestyle almost exclusively out of Brenda’s investment income. Their monthly budgetary expenses ranged
from $7,360 [Brenda’s estimate] to $13,143 [James’ estimate]. Following the conclusion of the
boardwalk operation, James, who had obtained a real estate license in Florida, worked
briefly for real estate brokers. Although he provided a few referrals, he never
showed a property for the firms and earned only about $20,000 in income
in all.
The couple spent seven years together in retirement before Brenda discovered that her
husband was having an affair with a woman with whom the parties socialized.
Brenda filed a complaint for divorce alleging adultery and extreme cruelty. The trial
judge granted James’ motion for pendente lite relief, awarding $1,006 per week as
spousal support and $7,000 as counsel fees, subject to allocation at the time
of the final hearing.
The case proceeded to trial. James claimed entitlement to a permanent alimony award
of $68,320 per year and Brenda sought to deny alimony altogether. By the
time of trial, Brenda’s investment assets were valued at $2.4 million. James’ assets
consisted of an IRA with a value of $80,000 as of 1999. He
also had a partial interest in accounts held jointly by the couple and
a shared interest in property from his father’s estate valued at $50,000.
The trial judge determined that the property at 22 Central Avenue, which at
the time of trial was under contract for sale for $500,000, was subject
to equitable distribution but that Brenda’s remaining assets were immune.
With regard to Central Avenue, the judge determined that James was entitled to
thirty percent of the net proceeds ($141,000). In immunizing Brenda’s remaining assets from
distribution, the judge found that James’ investment advice was “of little significance and
import” and that it did not contribute to the growth of Brenda’s assets.
The judge also denied James’ request for counsel fees.
With respect to alimony, the judge awarded James $610 per week based “in
substantial part on the defendant’s economic dependency.” In reaching that conclusion, the judge
attributed to James the ability to earn a minimum of $25,000 annually and
denominated the alimony award as necessary to maintain the marital standard of living.
James appealed, claiming that the alimony award was insufficient to maintain the marital
standard. He contended that even with the additional $25,000 earning capacity attributed to
him by the trial judge, he would still be $4,000 short each month
in meeting his self-described budgetary needs. He also argued that the distribution of
the marital residence was inequitable because he was entitled to half of the
sale proceeds, and that he should have been awarded counsel fees based on
his need, good faith, and Brenda’s superior ability to pay.
Brenda cross-appealed, arguing that James was not entitled to any alimony and should
have received no more than sixteen percent of the proceeds from the marital
residence because that was the percentage of the purchase price attributable to the
sale of the house on Lexington Avenue. She further contended that alimony was
inappropriate because James did not contribute non-remunerative activities to the marriage, and his
economic dependency was not occasioned by the marriage, but by his own “indolence.”
The Appellate Division affirmed and held that there was sufficient credible evidence in
the record to support the trial judge’s permanent alimony award; that “though the
alimony award may be insufficient for defendant to maintain his relaxed marital lifestyle,
the reduction in his living standard is justified, in part, by the finding
that plaintiff established he was adulterous and committed acts of extreme cruelty;” that
the trial judge did not abuse his discretion in allocating the parties’ interests
in the property at 22 Central Avenue; and that the denial of the
counsel fee application was proper in light of the substantial pendente lite award
and the finding of marital fault.
In reaching its conclusions, the court observed that “[t]he Manis’ standard of living
was not the result of the parties’ joint efforts, but rather solely due
to gifts from plaintiff’s father.” The panel also noted that although the trial
court did not specifically mention adultery and extreme cruelty as factors in the
alimony analysis, it did find that the Brenda had proven the grounds asserted
in her complaint. According to the Appellate Division, James’ adultery was significant and
“his marital indiscretions warrant consideration in the amount of that award.” The court
also cited marital fault as a factor in the denial of counsel fees.
We granted James’ petition for certification on issues of alimony and counsel fees,
Mani v. Mani,
178 N.J. 453 (2004), and accorded amicus status to the
New Jersey State Bar Association.
James asks us to establish, as a rule of law, that in modern matrimonial practice, fault should play no part in an alimony determination or in an award of counsel fees. He contends that, as a matter of practice, courts are abiding by that rule and that the Appellate Division decision has upended the status quo by wrongly interjecting fault into the equation.
Brenda counters that N.J.S.A. 2A:34-23(b) gives courts discretion to “consider any other factors which the court may deem relevant” in arriving at an alimony decision, including marital fault. However, she candidly concedes that the present practice is to focus on the finances of the parties and rarely involves fault.
With respect to counsel fees, she acknowledges that marital fault is not a consideration and argues that the real reason for the denial of fees in this case was the $7,000 pendente lite award, the $141,000 in equitable distribution, and the failure of James to submit an Affidavit of Services.
Amicus Curiae urges us to rule that fault should not be a factor in the determination of alimony except in the most egregious circumstances and that the focus of alimony should remain, as is the present practice, on the parties’ financial circumstances.
III
We turn first to the question of whether fault should be considered in an alimony analysis.
A.
The history of alimony is instructive. In early England, two forms of marital dissolution existed. The most common was an ecclesiastical divorce from bed and board (a mensa et thoro). Robert Kirkman Collins, The Theory of Marital Residuals: Applying An Income Adjustment Calculus to the Enigma of Alimony, 24 Harv. Women’s L.J. 23, 28 (2001). In reality that “divorce” was a legal separation that, in accordance with religious teaching on the indissolubility of marriage, did not terminate the marital relationship. John Witte Jr., The History and Evolution of Marriage From Sacrament to Contract: Marriage, Religion and Law in Western Tradition 156, 160-61 (1997). The other form - – a civil divorce (a vinculo matrimonii) - which literally means severing the chains of matrimony, although technically available, was extremely rare because it required an act of Parliament. 13 Halsbury’s Laws of England, 245 (1975).
Alimony was granted only in the former class of cases on the theory that husband was obliged to continue to support his wife as long as they remained married. Collins, supra, 24 Harv. Women’s L.J. at 28-29 (2001). Somehow, with the passage of time, the distinction between true divorce and mere separation was obliterated and alimony began to be awarded in all cases. No rationale was advanced to explain why parties, who were no longer married, remained economically bound to one another. As one legal scholar put it:
By the time that matrimonial law reform in Great Britain created universally accessible civil divorce in the mid-nineteenth century, the concept of alimony was so well-accepted that it was carried over and applied to those new cases where the marriage itself was actually ending, without apparent reflection or explanation as to why it should continue once the marital relationship had been extinguished. Section 32 of the Matrimonial Causes Act [of] 1857 gave the judge discretion to order a husband to provide for his wife even after the marriage had ended in an amount reflecting her own wealth, his own means, and their respective conduct during the marriage. Posterity was not, however, provided with a rationale.
[Ibid.]
Divorce based on the English practice was available in the American colonies from the earliest times. Maynard v. Hill, 125 U.S. 190, 206, 8 S. Ct. 723, 727, 31 L. Ed. 654, 657 ( 1888). The concept of alimony also carried over. Again, as had been the case in England, the reason for alimony, outside the legal separation scenario, remained an enigma. 2 Homer Harrison Clark, The Law of Domestic Relations in the United States, 257-58 (2d ed. 1988). That lack of clarity regarding the theoretical underpinning of post-divorce alimony explains why, although alimony is now awarded in every jurisdiction, Collins, supra, 24 Harv. Women’s L.J. at 31, there is no consensus regarding its purpose.
Indeed, many distinct explanations have been advanced for alimony. Id. at 23. They include its characterization as damages for breach of the marriage contract, Margaret F. Brinig & June R. Carbon, The Reliance Interest in Marriage and Divorce, 62 Tul. L. Rev. 855, 882 (1988); as a share of the benefits of the marriage partnership, Rothman v. Rothman, 65 N.J. 219, 229 (1974); as damages for economic dislocation (based on past contributions), Elisabeth M. Lands, Economics of Alimony, 7 J. Legal. Stud. 35 (1978); as damages for personal dislocation (foregoing the chance to marry another), Lloyd Cohen, Marriage, Divorce, Quasi Rents; Or, “I Gave Him the Best Years of My Life,” 16 J. Legal Stud. 267, 276 (1987); as compensation for certain specific losses at the time of the dissolution, A.L.I., Principles of Law of Family Dissolution: Analysis and Recommendations, 8 Duke J. Gender L. & Pol’y 1, 28 (2001); as deterrence or punishment for marital indiscretion, Brinig & Carbone, supra, 62 Tul. L. Rev. at 860-61; and as avoidance of a drain on the public fisc, Miles v. Miles, 76 Pa. 357, 358 (1874).
Obviously, some of those purposes favor consideration of fault and some disfavor it. Thus, for example, in jurisdictions that continue to consider alimony as a punishment for marital indiscretion, deterrence against bad behavior, or damages for breach of the marital contract, fault logically figures into the calculus. Contrariwise, in those jurisdictions that view alimony solely in economic terms and prohibit its characterization as punitive, fault would not likely be considered as a weight at all. In other words, the purpose that is identified by a jurisdiction as the rationale for awarding alimony is closely connected to the question whether fault should be a factor in its calculation.
New Jersey cases have long expressed the view that alimony is neither a punishment for the payor nor a reward for the payee. Aronson v. Aronson, 245 N.J. Super. 354, 364 (App. Div. 1991); Turi v. Turi, 34 N.J. Super. 313, 322 (App. Div. 1955); O’Neil v. O’Neil, 18 N.J. Misc. 82, 89 (Ch.), aff’d, 127 N.J. Eq. 278 (E. & A. 1940). Rather, it is an economic right that arises out of the marital relationship and provides the dependent spouse with “a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage.” Stiffler v. Stiffler, 304 N.J. Super. 96, 99 (Ch. 1997) (quoting Koelble v. Koelble, 261 N.J. Super. 190, 192-193 (App. Div. 1992)). If that were our sole benchmark, resolving the issue whether fault should be an alimony consideration would be relatively simple. The answer would be “no.” There is, however, more to consider.
B.
N.J.S.A. 2A:34-23(b) provides that in all divorce actions “the court may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party.” When ordering alimony, a “court shall consider” a non-exclusive list of enumerated factors:
The actual need and ability of the parties to pay;
The duration of the marriage;
The age, physical and emotional health of the parties;
The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
The earning capacities, educational levels, vocational skills, and employability of the parties;
The length of absence from the job market of the party seeking maintenance;
The parental responsibilities for the children;
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;
The history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
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;
The income available to either party through investment of any assets held by that party;
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
Any other factors which the court may deem relevant.
[N.J.S.A. 2A:34-23(b).]
As is obvious, the words “marital fault” and “responsibility for the breakdown in
the marriage” do not appear in the statute, although the so-called “catch all
category” arguably permits a court to consider “any other factor” it may “deem
relevant.” N.J.S.A. 2A:34-23(g) further guides the court’s determination of alimony:
In all actions for divorce other than those where judgment is granted solely
on the ground of separation the court may consider also the proofs made
in establishing such ground in determining an amount of alimony or maintenance that
is fit, reasonable and just.
[N.J.S.A. 2A:34-23(g) (emphasis added).]
The genesis of that provision bears on the issue before us.
C.
In the late 1960’s, the California Legislature “launched the modern-day reform movement in
divorce laws by adopting the first no-fault divorce law in the United States
and eliminating the concept of fault in marriage dissolution actions.” Larry R. Spain,
The Elimination of Marital Fault in Awarding Spousal Support: The Minnesota Experience, 28
Wm. Mitchell L. Rev. 861, 861 (2001). New Jersey followed suit in 1971
when it enacted a comprehensive divorce reform package (L. 971, c. 212, (the
“Divorce Reform Act”)), that endeavored to “adequately respond to the felt needs of
our present day society” in the area of divorce law. Painter v. Painter,
65 N.J. 196, 203 (1974). Before the passage of the Act, the Legislature
created the Divorce Law Study Commission (“Commission”) with an eye toward incorporating into
the law “modern concepts” of divorce and “sociological aspects of marriage, including many
changes in viewpoint.” L. 1967, c. 57 (amended by L. 1968, c. 170
and L. 1969, c. 25); see also Painter, supra, 65 N.J. at 203
(recounting history of New Jersey’s revision of divorce law). The Commission issued a
Final Report that contained findings about existing divorce law in New Jersey, and
proposed a Divorce Reform Bill. See Divorce Law Study Commission, New Jersey, Final
Report to the Governor and The State (1970) [hereinafter Final Report]. “In very
large part” the resulting statute, N.J.S.A. 2A:34-23, was “based upon the proposed Divorce
Reform Bill” contained in the Final Report. Painter, supra, 65 N.J. at 203-04.
Because New Jersey law prior to 1971 only provided for divorce on the
grounds of fault, the focus of the Commission was the need for legal
recognition of no-fault divorce on grounds of separation. Final Report, supra, at 5-6,
99–100. The Commission proposed such a new ground “where there is no prospect
for reconciliation” between the parties. Id. at 5. That recommendation was based on
the policy objective of “mak[ing] it legally possible [for parties] to terminate dead
marriages” without requiring litigants to “resort to the hypocrisy of accusing one or
the other of a marital wrong recognized by our present statutes.” Id. at
6. The Commission also concluded that “mutuality of fault should not be a
bar to divorce” because such a restriction would only serve as an unjustified
“punishment by the State.” Ibid.
Presumably the Legislature agreed with those conclusions because a central feature of the
final Divorce Reform Act was the allowance of divorce on no-fault grounds. Painter,
supra, 65 N.J. at 205. That statutory initiative gave couples in New Jersey
the right to divorce after eighteen months of separation, regardless of which party
caused the breakdown in the marriage. N.J.S.A. 2A:34-2(d). As we noted in Painter,
the separation provision represented a “move away from the concept of fault on
the part of one spouse as having been solely responsible for the marital
breakdown, toward a recognition that in all probability each party has in some
way and to some extent been to blame.” 65 N.J. at 205.
However, unlike the approach taken by some other jurisdictions that eliminated fault grounds
for divorce altogether, the Commission Report stated, “[t]he Commission does not recommend, at
this time, the complete elimination of fault as a consideration in marriage termination.”
Final Report, supra, at 6-7. The Legislature followed suit, preserving the traditional fault-based
grounds for divorce, although “somewhat liberalizing the requisites for their availability.” Id. at
205-06.
In addition to the Commission’s no-fault based proposals, the Final Report and proposed
bill also briefly addressed the relationship between fault and alimony. The Commission noted
that “fault, where so asserted as a ground for relief, will be a
proper consideration for the judiciary in dealing with alimony and support.” Id. at
7 (emphasis added). The proposed bill language presented by the Commission reflected that
position:
In all actions for divorce, divorce from bed and board, or nullity, the
court may award alimony to either party and in so doing shall consider
the actual need and ability to pay of the parties and the duration
of the marriage. In all actions for divorce other than those where judgment
is granted solely on the ground of separation the court may consider also
the proofs made in establishing such ground in determining an amount of alimony
or maintenance that is fit, reasonable, and just.
[Id. at 93, 112 (stating proposed language for N.J.S.A. 2A:34-23)(emphasis added).]
In its comments on the bill’s alimony provisions, the Commission explained:
[A]n attempt is made by [the proposed language] to direct the courts’ attention
to economic factors and the duration of the marriage as primary considerations in
setting an amount of alimony that is fit, reasonable, and just. The court
retains discretion, the factors enumerated are but guidelines, but their importance is stressed.
The last sentence of the proposed amendment permits the court to deny alimony
to a spouse who is guilty of one of the fault grounds for
divorce. As long as fault grounds are retained, it is traditional logic that
fault also should affect judicial discretion in awarding alimony. After further study a
new Commission may conclude that fault has no place in either the provision
of grounds for divorce or in determining alimony but for the time being
the substance of existing law is retained.
[Final Report, supra, at 94–95 (emphasis added).]
In an Appendix to the Final Report, the Commission recognized the tension between
considering fault in awarding alimony and the modern notion of no-fault divorce. Id.
at 129-30. According to the Commission, “the concept of fault is prominent in
the determination of alimony” in many jurisdictions and, therefore, litigating the question of
fault may be “necessary.” Id. at 130. Although the Commission noted that recent
trends gave greater weight to other factors, such as “the needs of the
parties and their private estates and earning capacities,” it apparently viewed the retention
of fault-based grounds for divorce as an obstacle to the development of that
trend in New Jersey. It concluded that “perhaps the penalty should fit the
‘crime,’ i.e., the flagrant offender, whether plaintiff or defendant (husband or wife) may
be subject to equitable principles when alimony, custody and property rights are determined.”
Id. at 8. The Commission did not, however, further define flagrancy.
The Legislature adopted the relevant language in the Commission’s proposed Bill, word for
word, in N.J.S.A. 2A:34-23(g), evidencing its apparent intention that courts should have discretion
to consider fault in awarding alimony. Whether it incorporated the notion of the
“flagrant offender” referred to by the Commission is unclear, as is the Legislature’s
intent in respect of how the court is to calculate the impact of
fault on an alimony award.
Since the enactment of N.J.S.A. 2A:34-23, and despite the Commission’s stated hope that
further study would refine the subject, no subsequent body has been charged with
the duty of revisiting the fault-alimony connection and the language of the statute
has remained unchanged in the face of several statutory amendments over the years.
See footnote 1
That is the legislative backdrop of our inquiry.
D.
Judicial interpretations of N.J.S.A. 2A:34-23(g) have varied. In Greenberg v. Greenberg,
126 N.J.
Super. 96, 99-100 (App. Div. 1973), the trial court increased the amount of
alimony to be awarded to an economically dependent wife because her husband’s extreme
cruelty caused the dissolution of the marriage. The Appellate Division reversed, characterizing the
economic roots of alimony as its sole basis, holding N.J.S.A. 2A:34-23(g) fault neutral
and declaring that it “does not bespeak legislative intendment that marital misconduct may
generate an award for alimony in excess of that which might be supported
by long-established and traditional bases for such grants.” Greenberg, supra, 126 N.J. Super.
at 99 (emphasis added).
The following year, in Chalmers v. Chalmers,
65 N.J. 186, 194 n.4 (1974),
we paraphrased the Final Report and observed that although it is not an
appropriate criterion for consideration in equitable distribution, “fault where so stated as a
ground for relief, will be a proper consideration for the judiciary in dealing
with alimony and support.”
Thereafter, Mahne v. Mahne,
147 N.J. Super. 326, 329 (App. Div. 1977), presented
the inverse of Greenberg insofar as it involved a proposal to bar alimony
altogether to a blameworthy spouse. In Mahne, a divorce was granted to the
husband on the fault-based ground of adultery after the wife had an affair
with her husband’s “best friend.” Id. at 327-28. The trial judge awarded alimony
to the wife in the amount of $300 a month. Ibid. The husband
appealed, arguing that the award was excessive in light of his wife’s marital
infidelity. Id. at 328. The Appellate Division agreed, and reversed the grant of
alimony based on the wife’s fault.
Shortly thereafter, in Nochenson v. Nochenson,
148 N.J. Super. 448, 449-50 (App. Div.
1977), the Appellate Division clarified its decision in Mahne, stating that, although dictum
in that case could be read to support an alimony bar based on
fault, the holding actually “went no further than accepting fault as a ‘consideration’
or factor in determining the grant or denial of alimony.” Nochenson suggested that
“lurid details” about the nature of Mrs. Mahne’s adultery ¾ though largely unspecified ¾ justified
a denial of alimony. Ibid.
Later cases have taken the lead of Chalmers and Nochenson and recognized that
fault may be considered as one factor in an alimony analysis but have
moved in the direction of circumscribing such consideration. For example, Lynn v. Lynn,
165 N.J. Super. 328, 333 (App. Div. 1979), involved a wife who “committed,
by her admission, many acts of adultery, beginning a few months after her
husband deserted the marital residence.” The trial judge ruled in favor of the
husband, a physician, and denied alimony altogether to the wife, who earned only
$50 a week publishing a newsletter. Id. at 146. In reversing and remanding
for reconsideration of alimony, the Appellate Division cited Chalmers and the Final Report,
and noted that although marital fault is a proper consideration, “Mrs. Lynn’s admitted
post-desertion sexual conduct was in our view hardly such egregious fault as to
equitably preclude her right to claim alimony under the Mahne-Nochenson standard.” Id. at
336-37. Lynn focused on the economic considerations that arise in the dissolution of
a marriage, stating “that a paramount reason for alimony is to permit a
wife to share in the economic rewards occasioned by her husband’s income level
(as opposed merely to assets accumulated), reached as a result of their combined
labors, inside and outside the home.” Ibid. (internal citation and quotation marks omitted).
The Appellate Division employed a similar analysis in Gugliotta v. Gugliotta,
164 N.J.
Super. 139, 140 (App. Div. 1978), where the husband argued that the trial
judge erred in awarding alimony to the adulterous wife. In affirming, the Appellate
Division acknowledged that although fault is a factor for consideration, the circumstances of
the adulterous activity in that case did not warrant a denial of alimony.
Ibid. Rather, the court suggested that marital fault comes into play only when
it relates to the economics of a breakdown in the marriage or when
there is egregious harm to the other party. In addition, that panel suggested
that fault is a less important factor than “the earning capacity of the
parties and the length of the marriage.” Id. at 141. See also Ruprecht
v. Ruprecht,
252 N.J. Super. 230, 240 (Ch. Div. 1991) (holding discovery regarding
alimony limited to economic aspect of defendant’s adulterous acts).
We commented on the limited role of fault in an alimony analysis in
Kinsella v. Kinsella,
150 N.J. 276, 285 (1997), where the husband filed for
divorce on the ground of the wife’s extreme cruelty, including allegations of verbal
abuse and “bizarre behavior.” The wife counterclaimed on the ground of extreme cruelty,
including allegations of physical abuse. Id. at 286. Although the issue before us
in Kinsella was not an alimony award (the case involved the release of
psychological records), we discussed the significance of fault in matrimonial proceedings after passage
of the Divorce Reform Act, noting that “the practical consequences of succeeding in
a divorce action on fault-based grounds, as opposed to separation, are minimal.” Id.
at 313-14 (emphasis added). After recounting that fault is irrelevant to equitable distribution,
child support and custody, we addressed N.J.S.A. 2A:34-23 and stated that “the focus
of the decision regarding alimony is generally on the financial circumstances of the
parties” and that “in today’s practice, marital fault rarely enters into the calculus
of an alimony award.” Kinsella, supra, 150 N.J. at 314-315 (emphasis added).
Recapping, although our case law has consistently recognized that, under our statutory scheme,
fault may be considered in calculating alimony, for over a quarter of a
century, courts have declined to place their imprimatur on a wide-ranging use of
fault in that context. Ruprecht, for example, adopted a narrow model allowing consideration
of economic fault only. Lynn and Gugliotta refused to consider non-egregious fault. Kinsella
attempted to reconcile the statute with the cases by pointing out that the
“focus of the decision regarding alimony is generally on the financial circumstances of
the parties”; “the practical consequences of succeeding . . . on fault based
grounds . . . are minimal”; and “marital fault rarely enters into the
calculus of an alimony award.” Id. at 314-15 (emphasis added).
We reaffirm Kinsella’s approach. The thirteen alimony factors listed in N.J.S.A. 2A:34-23(b) clearly
center on the economic status of the parties. That is the primary alimony
focus. However, the Legislature adopted both the spirit and the language of the
Final Report that stated that “fault, where so asserted as a ground for
relief will be a proper consideration for the judiciary in dealing with alimony
and support.” (Emphasis added). Thus in Kinsella we rendered congruent those seemingly discordant
themes by recognizing, on the one hand, the potential for considering fault, and
on the other, the rarity of such use in an alimony analysis. That
judicial gloss on the alimony statute has existed for over seven years, and
reflects the direction of our jurisprudence for a much longer period. During that
time, the Legislature has, on several occasions, undertaken to amend the divorce law
in other respects. We take that as some indication that the Legislature is
satisfied with the general approach adopted in Kinsella and its forebears. See Massachusetts
Mut. Life v. Manzo,
122 N.J. 104, 116 (1991)(stating
Legislature's failure to modify
judicial determination is some evidence of legislative support for judicial construction of statute
).
E.
It is noteworthy that the statutory provision permitting consideration of “the proofs made”
in a fault-based divorce does not specify how judges are to weigh proof
of fault in establishing alimony. In order to avoid the exercise of wholly
unguided discretion by trial judges and in the interest of uniformity and predictability
in decision-making, our task in this case is to search for a principled
approach to the relationship between fault and alimony consistent with legislative intent. To
do so, we have scoured the approaches taken by our sister states. Many
jurisdictions, without restriction, allow fault to be factored into an alimony award. See,
e.g., Allen v. Allen,
648 So.2d 359 (La. 1994); Hammonds v. Hammonds,
597 So.2d 653 (Miss. 1992); Thames v. Thames,
477 N.W.2d 496
(Mich. App. 1991); Hegge v. Hegge,
236 N.W.2d 910 (N.D. 1975). Many others
prohibit any consideration of fault. See, e.g., Oberhansley v. Oberhandsley,
798 P.2d 883
(Alaska 1990); In re Marriage of Bultman,
740 P.2d 1145 (Mont. 1987); In
re Williams’ Marriage,
199 N.W.2d 339 (Iowa 1977). Those approaches are not particularly
helpful because the legislative and judicial backdrop on which our case is to
be considered does not justify an all-or-nothing approach.
We have looked, as well, at the words of legal writers on the
subject. Like the states, they reflect the full spectrum of approaches. For example,
one commentator argues that even in the era of no-fault divorce, there should
be consideration of fault in determining alimony to morally coerce better marital conduct.
Adrian M. Morse, Jr., Fault: a Viable Means of Re-Injecting Responsibility in Marital
Relations,
30 U. Rich. L. Rev. 605, 651 (1996). Another contends that legal
recognition of fault may “provide protection and compensation for victims of abuse or
spousal trust.” Barbara Bennett Woodhouse, Sex, Lies and Dissipation: The Discourse of Fault
in a No-Fault Era,
82 Geo L.J. 2525, 2529-30 (1994).
Other scholars counter that “the potentially valid functions of a fault principle are
better served by the tort and criminal law, and attempting to serve them
through a fault rule risks serious distortions in the resolution of the dissolution
action.” Mark Ellman, The Place of Fault in a Modern Divorce Law,
26
Ariz. St. L.J. 773, 808-09 (1996). That view aligns with the most recent
report of the American Law Institute on Principles of the Law of Family
Dissolution: Analysis and Recommendations. 8 Duke J. Gender L. Pol’y at 59. That
report concluded that economic fault is a valid alimony factor, but that consideration
of non-economic fault should be avoided because of its deleterious effect on the
dissolution action. More particularly, the ALI report notes that, in a scheme such
as ours, in which alimony has economic roots,
[i]t will be the unusual case in which the fairness of the result
will be improved by a judicial inquiry into the relative virtue of the
parties’ intimate conduct. In some [cases] the result will become less fair. And
the rules that invite such misconduct claims will surely increase the cost and
degrade the process in many other cases, even those in which the claim
is ultimately cast aside.
[Id. at 60 (2000).]
We agree and hold that in cases in which marital fault has negatively
affected the economic status of the parties it may be considered in the
calculation of alimony. By way of example, if a spouse gambles away all
savings and retirement funds, and the assets are inadequate to allow the other
spouse to recoup her share, an appropriate savings and retirement component may be
included in the alimony award.
Our conclusion flows purely from a relevance perspective. “Relevant evidence” is “evidence having
a tendency in reason to prove or disprove any fact of consequence to
the determination of the action.” N.J.R.E. 40l; see also State v. Wilson,
135 N.J. 4, 13 (1994) (noting that probative value of evidence is “tendency of
evidence to establish the proposition that it is offered to prove”). Given the
economic basis of alimony, there can be no quarrel over the notion that
fault that has altered the financial status of the parties is relevant in
an alimony case. See, e.g., Noah v. Noah,
491 So.2d 1124, 1126
(Fla. 1986) (holding
adultery not cognizable in alimony award unless it depleted family
resources
); Williamson v. Williamson,
367 So.2d 1016, 1019 (Fla. 1979) (holding court
in alimony case may consider fault of one spouse in creating economic hardship
facing couple).
The same relevance notion does not apply to the ordinary fault grounds for
divorce that lurk in the margins of nearly every case and therefore those
grounds should not be interjected into an alimony analysis. To do so would
distort the application of the principles the Legislature has adopted to secure economic
justice in matrimonial cases. Moreover, without concomitant benefit, considering non-economic fault can only
result in ramping up the emotional content of matrimonial litigation and encouraging the
parties to continually replay the details of their failed relationship. Not only is
non-economic fault nearly impossible to factor into an alimony computation, but any attempt
to do so would have the effect of generating complex legal issues regarding
the apportionment of mutual fault, which is present in nearly all cases. That,
in turn, would result in the protraction of litigation and the undermining of
the goals of no-fault divorce, again without a corresponding benefit.
See footnote 2
Thus we hold that to the extent that marital misconduct affects the economic
status quo of the parties, it may be taken into consideration in the
calculation of alimony. Where marital fault has no residual economic consequences, it may
not be considered in an alimony award.
The only exception to that rule is the narrow band of cases involving the kind of egregious fault alluded to in Gugliotta and Lynn. Although Gugliotta and Lynn did not define egregious fault, they left open its characterization as something more than ordinary fault. It seems to us that, in this context, egregious fault is a term of art that requires not simply more, or even more public acts of marital indiscretion, but acts that by their very nature, are different in kind. By way of example but not limitation, California has legislatively barred alimony payments to a dependent spouse who has attempted to murder the supporting spouse. Cal. Fam. Code §4324. Deliberately infecting a spouse with a loathsome disease also comes to mind. Underlying those examples is the concept that some conduct, by its very nature is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties. In the extremely narrow class of cases in which such conduct occurs, it may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all.
G.
In this case, there was no allegation that James’ marital fault had any
economic consequences or that it was, in any way, egregious. Indeed the trial
judge did not weigh fault in the alimony calculus. Yet, the Appellate Division
relied on his marital misconduct to justify the trial judge’s alimony award. Because
the alimony award was a close call, (the Appellate Division stating that it
“may be insufficient” to support James in the marital life style), we do
not know whether the court would have reached the same conclusion in the
absence of the fault consideration. We therefore reverse and remand the case to
the Appellate Division for reconsideration of alimony without regard to fault, giving due
deference to the trial judge’s findings and conclusions.
IV
One final note on the alimony-fault intersection. This is nothing more than a
case involving statutory interpretation. Neither the purposes underlying alimony, the words of the
alimony statute, nor the legislative history behind the act can be said to
provide clear guidance as to the kind of fault that is to be
considered in an alimony calculus. The dissent misperceives the Court’s role in such
a case —- we are not free to abdicate our responsibility to interpret
legislation consistent with its language and with precedent that supplies content to broad
statutory pronouncements. Indeed, because our case law over the last thirty years has
soundly rejected the wide-ranging use of fault and because the Legislature has declined
to intervene, we take it that it is satisfied with the way our
cases have construed the statute. This case codifies what has been the nearly
universal practice in our courts. It is hard to fathom how the dissent
can suggest that our lower courts’ approach “has served us well” enough to
warrant our inaction, and, at the same time, urge that we discard the
very conclusion that most c