Jones v. Viola
| Decision Date | 27 February 2020 |
| Docket Number | DOCKET NO. A-1810-18T4 |
| Parties | MARYBETH JONES, Plaintiff-Appellant, v. ANDREW VIOLA, ESQUIRE, and ALBANO VIOLA, LLC, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Sabatino, Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket L-4285-16.
Mark J. Molz argued the cause for appellant.
Matthew S. Marrone argued the cause for respondent (Goldberg Segalla LLP, attorneys; Matthew S. Marrone and Seth Lawrence Laver, of counsel; Andrew P. Carroll, on the brief).
Appellant1, the custodial parent of two adult autistic children, brought this legal malpractice case against the attorney who had represented her years earlier in her divorce case against the children's father. After negotiations by that attorney, appellant entered into a settlement agreement with her husband, in which she agreed to receive alimony for only a limited duration of nine years.
Appellant claims her attorney erroneously advised her that the Family Part would extend that nine-year period, as long as she showed a continued need for the support. Finding it difficult to work and support herself because of her children's special needs, appellant tried through successor counsel to have the courts extend the nine-year alimony period, but to no avail. This malpractice lawsuit ensued.
The trial court granted the divorce attorney summary judgment dismissing plaintiff's claims against him and his law firm. Among other things, the court concluded that: the lawsuit was time-barred under the statute of limitations; appellant was estopped from bringing the malpractice case because of her stated assent to the terms of the divorce agreement; and she could not establishproximate causation of damages. For the reasons that follow, we reverse and remand the matter for trial.
Before we detail the facts and procedural history in the record, we first address the concepts of limited duration alimony and permanent alimony. These concepts are key aspects of this case and the underlying Family Part case.
By statute, the Legislature has established several categories of alimony. Two of these categories, pertinent here, are: (1) limited duration alimony, and (2) permanent alimony.2
Limited duration alimony ("LDA"), also known as term alimony, consists of alimony payable for a specific period of time. The Legislature has expressly authorized LDA as a permitted form of alimony, along with "rehabilitative" and "reimbursement" alimony. N.J.S.A. 2A:34-23(c)(1) to (3). The statute obligates a court to consider whether alimony is appropriate "for any or all" of those three categories. Ibid.
LDA can be appropriate in cases involving marriages of intermediate or shorter length, in which the spouse seeking support has an economic need, butalso possesses "the skills and education necessary to return to the workforce" at some time in the immediate future. Gordon v. Rozenwald, 380 N.J. Super. 55, 66 (App. Div. 2005) (citing Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000)). LDA is designed to address a dependent spouse's post-divorce needs in situations where permanent or rehabilitative alimony is not warranted, but where economic assistance to the dependent spouse for a defined period of time is nevertheless justified. See Gnall v. Gnall, 432 N.J. Super. 129, 150-51 (App. Div. 2013), rev'd on other grounds, 222 N.J. 414 (2015); J.E.V. v. K.V., 426 N.J. Super. 475, 485-86 (App. Div. 2012).
By contrast, permanent alimony traditionally was awarded in certain situations of longer-term marriages. "The purpose of this type of alimony is to allow the dependent spouse to live the same lifestyle to which he or she grew accustomed during the marriage." Gnall, 222 N.J. at 430 (citing Crews v. Crews, 164 N.J. 11, 26 (2000)). "When awarding permanent alimony, courts have great discretion, because 'no two cases are alike.'" Ibid. (quoting Bonanno v. Bonanno, 4 N.J. 268, 273 (1950)). When fixing the annual amount of permanent alimony, courts were to evaluate the "actual needs" of the dependent spouse and the "actual means" of the payor spouse, as well as several other factors. Id. at 430-31.
"Limited duration alimony is not to be awarded in circumstances where permanent alimony is warranted." Id. at 431. "All other statutory factors being in equipoise, the duration of the marriage mark[ed] the defining instructions between whether permanent or limited duration alimony is warranted and awarded." Ibid. (quoting Cox, 335 N.J. Super. at 482).
Notably, the statutory scheme made it more difficult for an LDA recipient to obtain a court order extending the duration of the alimony period rather than the alimony amount. As the statute dictates, "[a]n award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the non-occurrence of circumstances that the [trial] court found would occur at the time of the award." N.J.S.A. 2A:34-23(c); see also Lepis v. Lepis, 83 N.J. 139, 152-53 (1980) (). "The court may modify the amount of such an [LDA] award, but shall not modify the length of the term except in unusual circumstances." N.J.S.A. 2A:34-23(c) (emphasis added).
The statute does not define the concept of "unusual" (as opposed to merely "changed") circumstances. Our case law has recognized that the "unusual circumstances" test is a heightened standard. Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 356 (App. Div. 2009). The Legislature established apresumption that the "temporal aspect of [an LDA award] be preserved." Ibid. To overcome that presumption, a recipient seeking to extend the alimony term must demonstrate that the LDA had been originally intended to serve as "a substitute for permanent alimony premised upon a promise or expectation of alternative funds for support that has not been fulfilled or realized." Gordon v. Rozenwald, 380 N.J. Super. 55, 70 (App. Div. 2005). The Legislature adopted the heightened standard for extending the term of LDA to avoid unfairness to supporting ex-spouses, and to avoid burdening them with "regular extensions based upon comparative needs and ability to pay." Id. at 67.
With this statutory backdrop in mind, we turn to the record in this matter.
Appellant and her spouse married in October 1985. After nearly seventeen years of marriage, the husband filed a complaint in the Family Part in August 2002, suing appellant for divorce. Appellant hired defendant Andrew Viola, Esquire to represent her in the divorce case. Appellant entered into a written fee agreement with Viola for an hourly rate of $150, with a $1,500 retainer. The husband was represented by his own counsel.
In 2002, the husband was a truck driver making approximately $85,000 per year.3 Appellant worked as a florist, making $13,000 per year.
Appellant and the husband are the parents of two children of the marriage: a daughter born in September 1988, and a son born in May 1992. Both children are diagnosed with autism, and the daughter is also diagnosed with Asperger Syndrome. According to appellant, although the son is now over twenty-one years old, he "functions on an average level of [an] eight or nine-year-old [child] with language skills of a three year old [child and] needs 24 hours care[.]" Both children currently reside with appellant, and they did so at the time of the couple's divorce in 2003. The son was additionally diagnosed with epilepsy in 2009.
Through their divorce counsel, the couple submitted initial settlement proposals in anticipation of the Matrimonial Early Settlement Panel ("MESP") scheduled for January 28, 2003. The parties disagreed in their MESP submissions regarding several substantive issues. However, ultimately, the only issues the parties could not agree on were the amount of an alimony award and child support to be paid by the husband to appellant.
The husband did not offer any alimony in his MESP proposal. Meanwhile, Viola advocated in his MESP memo that appellant "must care for two (2) autistic children," that "[the husband] was the main means of support between the parties during the course of this seventeen (17) year marriage," that "[appellant] is [forty-one] years old and has no special skills or training," and therefore, "this seems to be a permanent alimony case." Viola took the position that the husband should pay permanent alimony in the amount of $400 per week.
The MESP panel recommended appellant be awarded her requested sum of $400 per week in permanent alimony and $226 per week in child support. The matter did not settle during the MESP.
About two weeks after the MESP session, on February 10, 2003, the husband, through his counsel, offered appellant $300 per week in LDA for a term of seven years, and $140 per week in child support ($70 per child). Appellant rejected that offer.
Thereafter, the couple reached an apparent agreement that the husband would pay appellant $315 per week in alimony and $200 per week in child support, for a period of four years. However, Viola wrote a letter to the Family Part judge, notifying the court that appellant had decided she "will be unable to maintain a comparable standard of living at that support level," and that "[she]cannot maintain herself and her (2) autistic children unless the total support exceeds $600.00 as recommended by the MESP Panel."
Ultimately, the couple reached a final agreement that was memorialized in a Dual Final Judgment of Divorce on May 28, 2003. Section 2.2 of the divorce judgment required the husband to pay appellant $200 per week ($100...
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