SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-576-94T2
LENA HEINL,
Plaintiff-Respondent,
v.
JAMES HOWARD HEINL,
Defendant-Appellant.
Argued January 24, 1996 - Decided February
14, 1996
Before Judges King, Kleiner and Humphreys.
On appeal from the Superior Court of
New Jersey, Chancery Division, Family Part,
Hunterdon County.
Ralph J. Pocaro argued the cause for
appellant (Pocaro & Pocaro, attorneys; Mr.
Pocaro, on the brief).
Robert W. Becker argued the cause for
respondent (Reed and Scholl, attorneys;
Donald F. Scholl, Jr., of counsel; Mr. Scholl
and Mr. Becker, on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Defendant James Heinl appeals numerous provisions of a final
judgment of divorce, including alimony, child support, attorney's
fees, and equitable distribution. Although several of the issues
raised by defendant in this appeal are without merit, we find
that there were errors in the court's decisions respecting
alimony, counsel fees, and equitable distribution. In our
partial reversal, we are called upon to evaluate anew the concept
of rehabilitative alimony.
Plaintiff Lena Heinl and defendant James Heinl were married on November 17, 1984. They had two children: Jennifer, born December 26, 1985, and Michael, born June 19, 1987. The parties separated in July 1992, when defendant moved from the marital residence in Milford. Plaintiff filed her complaint for divorce on April 16, 1993. A judgment of divorce was entered on August 4, 1994 and incorporated the terms delineated in a written opinion of the trial judge.
Plaintiff, a high school graduate, also graduated from secretarial school. She worked full-time prior to the birth of the eldest child and returned to part-time secretarial work in June 1992, one month prior to the parties' separation. At the time of the divorce hearing, plaintiff worked fifteen hours per week for a realtor, at $10.50 per hour, earning $130 net income per week. On an as-needed basis, approximately four times per month, plaintiff also worked for another company earning $13.50 per hour. In 1993, plaintiff earned $8,861 in gross income.
Defendant is a general foreman in Local 475 of the Pipefitters and Steamfitters Union. For the past eight or nine years, he has worked steadily for the same company. In 1990, he grossed $61,000; in 1991 he grossed $62,000; in 1992 and 1993 he
grossed $73,000. Defendant's gross income each year included
overtime pay.See footnote 1
When the parties separated, they had two bank accounts worth
about $16,000. They also owned a home, automobiles, and various
household goods and furnishings. Defendant testified that upon
separating, he left in the bank accounts $7,000 for plaintiff.
However, he admitted that he then withdrew an additional $1,000
from the accounts to pay a joint $2,500 credit card debt.
Defendant had ten percent of his pay deposited into a
"vacation fund" maintained by his employer. Traditionally, the
parties used this money to buy furniture or make home repairs.
In April 1993, the vacation fund contained $6,200. Defendant
withdrew that money and furnished a new residence for himself,
paid outstanding marital bills and purchased a boat.
On August 1, 1994, the trial judge issued a written opinion.
The judge's findings were incorporated within the terms of the
divorce judgment which: (1) granted plaintiff sole legal custody
of the children; (2) set defendant's child support obligation at
$370 per week; (3) ordered defendant to maintain life insurance
coverage of $150,000 for the benefit of the children; (4) ordered
defendant to pay plaintiff $125 per week permanent alimony; (5)
permitted plaintiff to remain in the marital home and awarded her
the right to mortgage and real estate tax deductions; (6) awarded
plaintiff all of the personal property and possessions in the
marital home; (7) ordered defendant to pay plaintiff one-half of
the "vacation fund" money ($3,100) and one-half of the value of
the boat ($1,150); (8) ordered defendant to pay $15,637.77 of
plaintiff's counsel fees; and (9) ordered that plaintiff could
claim the children as dependents until she became employed full-time and then the parties would share the deduction.
On appeal, defendant contends that plaintiff was not entitled to an award of alimony. Alternatively, he contends that plaintiff exaggerated her expenses within her case information statement and that the judge therefore miscalculated the alimony award.
In a divorce action, courts may award alimony "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just . . . ." N.J.S.A. 2A:34-23. The basic purpose of alimony is the continuation of the standard of living enjoyed by the parties prior to their separation. Innes v. Innes, 117 N.J. 496, 503 (1990) (citing Mahoney v. Mahoney, 91 N.J. 488, 501-02 (1982)). The supporting spouse's obligation is set at a level that will maintain that standard. Id. at 503 (citing Lepis v. Lepis, 83 N.J. 139, 150 (1980)).
Factors to be considered in setting permanent or rehabilitative alimony include: (1) the actual need and ability of the parties to pay; (2) the duration of the marriage; (3) the age, physical and emotional health of the parties; (4) the
standard of living established in the marriage and the likelihood
that each party can maintain a reasonably comparable standard of
living; (5) the earning capacities, educational levels and
employability of the parties; (6) the length of absence from the
job market and custodial responsibilities for children; (7) the
time and expense necessary to acquire sufficient education or
training to enable the party seeking maintenance to obtain
appropriate employment; (8) the history of financial and non-financial contributions to the marriage by each party; (9) the
equitable distribution of property ordered and any pay-outs on
equitable distribution, directly or indirectly, out of current
income, to the extent this consideration is reasonable, just and
fair; and (10) any other factors which the court may deem
relevant. N.J.S.A. 2A:34-23(b)(1)-(10). One additional factor
that has been considered in determining the amount and duration
of support is the extent of actual economic dependency. Lepis,
supra, 83 N.J. at 155.
To vacate a trial court's finding concerning alimony, we
must conclude that the trial court clearly abused its discretion,
failed to consider all of the controlling legal principles, or
must otherwise be 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. Rolnick v. Rolnick,
262 N.J.
Super. 343, 360 (App. Div. 1993). Moreover, substantial weight
must be given to the judge's observations of the parties'
demeanor, comprehension and speech and to the fact that the trial
judge had the distinct advantage of observing the demeanor of the
witnesses and a better opportunity to judge their credibility
than a reviewing court. Ibid.
In his written opinion, the trial judge outlined the needs
of the plaintiff predicated upon her testimony and the
information provided in her case information statement. The
court reduced the total sum plaintiff claimed she would require
to maintain the standard of living enjoyed during the marriage.
The reduction was based upon defendant's cross-examination, which
revealed that plaintiff's itemized expenses were speculative and
in many respects unverified. The judge then calculated
plaintiff's alimony after computing defendant's obligation for
child support.
After very carefully explaining his mathematical
calculations and his reasons for each calculation, the judge
stated:
Alimony payable to plaintiff will be taxable
to her, so it is necessary to provide a gross
figure that will yield her a sufficient net
income to maintain herself. Estimated income
taxes are between 28%-33%. I find that
$125.00 per week is the necessary amount.
Therefore, I Order the defendant to pay to
plaintiff $125.00 per week as permanent
alimony. The permanent alimony awarded is
based upon the actual need of the plaintiff.
It is also based upon the proven ability of
the husband to pay this amount considering
the duration of the marriage and the standard
of living testified to by the parties. They
testified that they owned their own home,
each had an automobile, and they had a
comfortable lifestyle. It is obvious from
the husband's work record and the supervisory
nature of his employment that he has the
ability to make these payments.
Although we cannot find error in the mathematical method
utilized by the judge in calculating alimony, we do find that the
court erred in his decision in three respects: (1) he failed to
include the income plaintiff was then earning in her second job
which appears to be $75 net per week or $322 net per month; (2)
he failed to consider that plaintiff was employed only on a part-time basis although the youngest child of the marriage was then
age seven and attending public school; and (3) he failed to
articulate any reason for an award of permanent alimony rather
than an award of rehabilitative alimony.
The parties were married in November 1984 and separated in
July 1992, a period of seven years and eight months. Plaintiff
is thirty-four years of age. Although the judge indicated in his
findings that he considered the duration of the marriage in
determining that permanent alimony was warranted, the court
failed to fully articulate why a relatively short marital life
required an award of permanent alimony rather than an award of
rehabilitative alimony.
This is particularly important in cases in which the alimony
recipient is of a relatively young age. A younger divorcee has a
better opportunity to obtain employment than does an older
individual who had been married and out of the work force for
many years. See Capadano v. Capadano,
58 N.J. 113, 119-120
(1971); Skribner v. Skribner,
153 N.J. Super. 374, 376 (Ch. Div.
1977). Cf. Lynn v. Lynn,
91 N.J. 510, 517-518 (1982) (holding
that length of marriage and the proper amount or duration of
alimony do not correlate in any mathematical formula).
Our criticism should not be construed as implying that the
judge's decision was necessarily wrong. We express concern that:
(1) the reasons for awarding permanent alimony, as articulated by
the trial judge, were very generalized; and (2) the reasons for
not awarding, or even considering, rehabilitative alimony were
totally absent in the judge's opinion.
Trial judges are under a duty to make findings of fact and
to state reasons in support of their conclusions. R. 1:7-4. See
Curtis v. Finneran,
83 N.J. 563, 569-70 (1980). The Supreme
Court explicitly set forth in Curtis that "[i]n a non jury civil
action, the role of the trial court at the conclusion of the
trial is to find the facts and state conclusions of law. R. 1:7-4. Failure to perform that duty `constitutes a disservice to the
litigants, the attorneys, and the appellate court.'" Ibid.
(quoting Kenwood Assocs. v. Board of Adj. Englewood,
141 N.J.
Super. 1, 4 (App. Div. 1976)).
Naked conclusions are insufficient. A judge must fully and
specifically articulate findings of fact and conclusions of law.
Id. at 570. See R. 1:7-4. The absence of adequate findings, as
here, necessitates a reversal to allow the trial judge to
reconsider the alimony decision. See McGee v. McGee,
277 N.J.
Super. 1, 14 (App. Div. 1994) (reversing award of rehabilitative
alimony and remanding to permit trial court to consider permanent
alimony, where trial court findings did not explain why permanent
alimony had not been considered).
Rehabilitative alimony should have been seriously considered
here. Plaintiff graduated from secretarial school, had been
employed full-time prior to the birth of the first child, and
since June 1992, has been employed in two part-time jobs. The
youngest child is now in school full-time. Plaintiff offered no
explanation why she could not seek full-time employment. We
recognize that full-time employment may increase plaintiff's
child care expenses which may have an effect on defendant's child
support obligation. Nonetheless, under the facts in this case it
was error not to have considered plaintiff's capacity to increase
her income and reduce her economic dependency by seeking and
obtaining full-time employment.
Again, the trial judge may have had sustainable reasons why
plaintiff's capacity for greater income was not considered.
However, those reasons were not articulated in the judge's
findings, contrary to R. 1:7-4.
The concept of rehabilitative alimony mentioned in Lepis v.
Lepis,
83 N.J. 139, 155 n.9, (1980), and Hill v. Hill,
91 N.J. 506, 509 (1982), was codified by legislative amendment in
N.J.S.A. 2A:34-23(b) in 1988. Rehabilitative alimony is an
appropriate consideration in instances in which the marriage is
relatively short and the recipient spouse is capable of full
employment based on experience, additional training or further
education. Finelli v. Finelli,
263 N.J. Super. 403, 406 (Ch.
Div. 1992).
In Finelli, the trial judge, on remand for reconsideration
from an unreported decision of this court, explained that he had
not considered rehabilitative alimony because "[a]t no time
during the full hearing on the merits did anyone supply facts on
which this court could base a determination concerning
rehabilitative alimony, as the court in Kulakowski did." Ibid.
(citing Kulakowski v. Kulakowski,
191 N.J. Super. 609 (Ch. Div.
1982)). Although we note that defendant here did not urge the
trial court to award rehabilitative alimony, defendant did urge
that alimony in any form should be denied. In rejecting
defendant's position, the judge was therefore obligated to fully
articulate his reasons for granting permanent alimony. That
reasoning process necessitates a consideration of rehabilitative
alimony and, where appropriate, an articulation of reasons for
rejection of rehabilitative alimony and an award of permanent
alimony. McGee, supra, 277 N.J. Super. at 14.
Furthermore, the judge erroneously failed to include the
income from plaintiff's second job in his mathematical
calculation of plaintiff's economic needs. Plaintiff's needs
were determined to be $125 per week. Plaintiff's income on a
part-time basis is $75 more per week that the earnings which were
included by the judge in his calculations. It would appear that
even were the court to conclude on reconsideration that plaintiff
need not obtain alternative employment, her former standard of
living can be maintained by the payment of alimony at the rate of
$50 per week.
Defendant contends that the judge abused his discretion in ordering him to pay plaintiff's entire counsel fee of $14,685.75 and $954.07 in costs. Defendant also contends that the judge should not have awarded attorney's fees for services spent on: (a) visitation; (b) a municipal court matter involving plaintiff and defendant's paramour; (c) a DYFS investigation; and (d) a conference conducted with plaintiff's sisters. Plaintiff maintains that the award was reasonable and should be upheld.
Upon making the award, the judge wrote:
The basis for this award is a review of the defendant's ability to pay, the number of court appearances that were required, including the municipal court proceeding which I find was a totally unnecessary proceeding; the economic conditions of the parties, and the services rendered with regard to resolving the matter. It is significant that the defendant through counsel did not participate in any meaningful discovery which would have enabled the parties to effectively negotiate and resolve the case through arbitration at the Early Settlement Panel. The defendant did not participate in meaningful settlement discussions with this Court. In essence, the defendant thumbed his nose at and made light of the entire matrimonial pretrial procedure. Defendant's uncooperative attitude was evidenced by his counsel's refusing to accept service of process, requiring substantial expenses and time and effort to have the defendant served in Easton, Pennsylvania.
It obviously was necessary for plaintiff's attorney to spend necessary time
as detailed in his comprehensive and thorough
affidavit attached to his application for
counsel fees. The application represents
reasonable hourly rates based upon the
plaintiff's attorney's skill and experience.
It appears from this Court's prospective
[sic] that plaintiff was ably represented and
the method of presentation in Court, made the
issues comprehensible to the Court.
R. 4:42-9(a)(1) permits the award of counsel fees in a
matrimonial action in the court's discretion. In determining
whether a counsel fee should be imposed, the court must look at
the requesting party's need, the other party's ability to pay and
the good and bad faith of each party. N.J.S.A. 2A:34-23;
Williams v. Williams,
59 N.J. 229, 233 (1971); Rosenberg v.
Rosenberg,
286 N.J. Super. 58 (App. Div. 1995); Kothari v.
Kothari,
255 N.J. Super. 500, 513 (App. Div. 1992).
In determining the reasonableness of any
fee award, "[t]he initial focus in the
calculus is appropriately directed to the
time expended in pursuing the litigation."
Singer v. State,
95 N.J. 487, 499,
472 A.2d 138, cert. denied
469 U.S. 832,
105 S. Ct. 121,
83 L. Ed.2d 64 (1984). However, "time
expended is only one of the factors to be
considered." Swanson v. Swanson, . . .
355 N.E.2d 894, 899 (1976) . . . . In
matrimonial actions, more so than most other
areas in which counsel fees are awarded, the
expenditure of attorney time is of less
importance.
[Argila v. Argila,
256 N.J. Super. 484, 492-93 (App. Div. 1992).]
With the exception of defendant's objection to inclusion of
services provided to plaintiff in municipal court, we agree with
the trial judge's decision. Services rendered to plaintiff in
the defense of a complaint in the municipal court instituted by
defendant's paramour, although perhaps tangentially related to
the marital dissolution, are not services rendered within the
framework of proceedings addressed in R. 4:42-9(a)(1). On
remand, the trial judge must re-evaluate the award of counsel
fees and shall deduct those charges billed to plaintiff by her
counsel attributable to municipal court proceedings, including
preparatory time.
Defendant contends that the court erred in the distribution of marital assets as required by N.J.S.A. 2A:34-23. With the exception of the judge's decision pertinent to a boat purchased by defendant for $2,200 after the separation, we find that the judge's decision was fair and equitable. On the first day of trial, by stipulation, the parties agreed to divide the equity in the marital home equally. The judge followed that divisional scheme in dividing the remaining personal property.
As noted in part one of this decision, after defendant separated from plaintiff, he withdrew his "vacation fund" totalling $6,200 and used the money to furnish a new apartment, pay previously incurred bills, and purchase a boat. The trial judge ordered defendant to pay plaintiff $3,100. That award was appropriate. However, the court also ordered defendant to pay plaintiff $1,100, constituting one-half the value of the boat. This was clearly improper, given that the plaintiff had been ordered to receive fifty percent of the "vacation fund." The
award with respect to the boat was a duplicative distribution.
On remand, the trial court shall correct this inequity.
In his decision, the trial judge stated:
The parties have agreed that the wife shall remain in the house and have full utilization of the furniture and all household equipment. She may remain in the house until the youngest child reaches 18 or she remarries, or determines to move from the house. At that point in time, the house will be sold, and the value of the net equity shall be apportioned equally between the parties. The net equity will be the sales price less any existing liens and closing costs, including commissions.
The judge also wrote, "The parties have agreed that 50" of
the husband's pension annuity fund will be subject to
distribution."
The final judgment of divorce (prepared by plaintiff's
attorney) stated:
[T]he wife shall be entitled to fifty (50")
percent of the value accrued during the term
of the marriage in both the husband's annuity
and pension plans. To the extent the marital
home is sold within two (2) years from the
date of judgment, the wife shall receive from
the husband's share of the net sale proceeds,
her present value interest in the annuity.
The wife's interest in the pension shall
be subject to a Qualified Domestic Relations
Order.
Further and in the event the wife
decides to retain the marital home for a
period greater than two (2) years, she shall
maintain a Qualified Domestic Relations Order
in the annuity.
For the purposes of the agreement both
the pension and annuity shall be subject to
the Qualified Domestic Relations Order
outlined below. The parties, if the wife
desires to sell the marital home within two
(2) years, shall instruct the Benefits
Administrator to rescind the Qualified
Domestic Relations Order and permit the wife
to receive the present value of her interest
in the annuity from the husband's share of
the net sale proceeds of the marital home.
Defendant claims on appeal, "There was no agreement as to
the above condition that allowed Plaintiff to be paid the value
of the annuity from the proceeds of [the] sale of the home."
Although defendant did not agree to that particular term as part
of the stipulation which resolved several aspects of the
equitable distribution of property dispute, the method of payment
required resolution. The trial judge was therefore entitled to
decide that issue. Defendant's counsel received the proposed
form of judgment pursuant to R. 4:42-1(c) when plaintiff's
counsel submitted it to the judge. The objection to the
inclusion of payment provision within the judgment that had not
been articulated by the judge in his written opinion should have
been the subject of an objection to the form of the judgment.
Defendant voiced no objection. On appeal, defendant has failed
to articulate specifically how he has been prejudiced by the
inclusion of that condition within the judgment. We therefore
decline to reverse the trial judge on that particular decision.
Defendant contends that he should be entitled to claim both children as exemptions on his federal income tax return.
In his written opinion, the judge wrote:
Each party is permitted to declare one of the children as a deduction for income tax purposes. As long as plaintiff is employed (full time or part time), she is entitled to take the youngest child, the husband will therefore take the oldest child as a deduction until the child attains 18.
The final judgment of divorce states:
[T]he husband and wife shall share the minor
children of the marriage as dependents on
their Federal and State income tax returns
until the wife is employed on a full time
basis. The wife shall be permitted to claim
both children as dependents at such time as
she becomes employed full time . . . .
(emphasis added).
Clearly, the written provision in the judgment contradicts
the express language of the judge's written opinion. Although
defendant might have voiced his objection when he received the
proposed form of judgment, his failure to object does not bar a
grant of relief on appeal, as the error is clear on its face.
The Internal Revenue Code,
26 U.S.C. §152(e)(1), gives a
custodial parent the right to the exemption, subject to waiver by
that parent. Gwodz v. Gwodz,
234 N.J. Super. 56, 62 (App. Div.
1989). The trial court may exercise its discretion in allocating
tax exemptions, subject to acceptance by the Internal Revenue
Service. Ibid. A court may properly seek to maximize the net
income of the parties in the allocation of tax deductions. Id.
Therefore, the judge's error was not in dividing the exemptions
of the children between the parties. The judge did err, though,
by modifying the terms of the written opinion when he executed
the judgment. The amended judgment of divorce entered subsequent
to our remand shall reflect that as long as plaintiff is employed
either on a full or part-time basis, she shall be entitled to
name the youngest child as an exemption.
In Selengut v. Ferrara,
203 N.J. Super. 249, 263 (App. Div.)
certif. denied,
102 N.J. 316 (1985), and Mahonchak v. Mahonchak,
189 N.J. Super. 253, 256 (App. Div. 1983), we concluded that an
oral pronouncement of a judgment in open court on the record
constitutes the jural act, and the entry of written judgment is
merely a ministerial act memorializing the prior jural act. In
State v. Pohlabel,
40 N.J. Super. 416, 423 (App. Div. 1956), we
stated that where there is a conflict between the oral sentence
and the written commitment, the former will control, since it is
the true source of the sentence. We conclude that the same
principle should generally apply to a conflict in a written
opinion of the trial judge and the form of judgment prepared by
counsel which is intended to embody the written opinion. This is
quite different from the inclusion of a provision which was not
addressed within the written opinion.
We find the balance of defendant's contentions pertaining to equitable distribution and the trial judge's calculation of child support to be without merit. See R. 2:11-3(e)(1)(A).
The judgment is affirmed in part and reversed in part. The matter is remanded to the trial court for further proceedings consistent with this opinion.
Footnote: 1 Defendant's wages have been rounded to the closest even numerical amount.