Wass v. Wass
| Decision Date | 17 February 1998 |
| Citation | 710 A.2d 1053,311 N.J.Super. 624 |
| Parties | Elaine J. WASS, Plaintiff, v. Howard L. WASS, Defendant. |
| Court | New Jersey Superior Court |
Brian P. Latimer, Oakhurst, for plaintiff (Jacobowitz, Grabelle, Defino, McGoughran & Latimer, attorneys).
Robert B. Woods, Monmouth Beach, for defendant (Robert B. Woods, attorney).
HAYSER, J.T.C., temporarily assigned.
Plaintiff in this action seeks an award of rehabilitative alimony. Although not argued by the plaintiff at trial, must the court, in the alternative, under the facts and circumstances of this case, consider an award of permanent alimony if rehabilitative alimony is not appropriate? 1
The essential facts are not in dispute. Plaintiff left high school in the tenth grade. She worked for a manpower training program as a switchboard operator for one year. She married for the first time in 1976, and gave birth to her first child in 1977. That child is now emancipated.
In 1981, the plaintiff met the defendant, and, before her divorce from her first husband in 1983, the parties began living together. At that time, the plaintiff was, at best, sporadically or seasonally employed as a waitress, Avon and Amway representative and as a secretary, with a temporary employment agency. At the same time, defendant was beginning his career in the construction industry, initially earning less than $15,000.00 per year.
In December 1986, the parties' child was born, and thereafter the parties married in February 1987. The parties apparently agreed that the plaintiff would not seek further employment until their child began attending school full-time. However, prior to the commencement of this action, plaintiff was temporarily employed at a nursery school and as a secretary for an eye doctor. Plaintiff was also temporarily employed as the manager of a mall kiosk business and as a Macy's seasonal salesperson.
Presently, plaintiff is employed full-time at Lord & Taylor, earning approximately $7.45 per hour, and working a thirty-eight (38) hour week, with a resulting gross weekly salary of $283.00, or an annual gross salary of approximately $14,721.00. Defendant continued his employment in the construction field, earning a gross salary and bonus in 1997 of $54,878.00, which did not include approximately $1,200.00 of additional income which he earned in that same year for "occasional" carpentry jobs.
Twice in recent years the plaintiff made unsuccessful attempts to obtain her GED certificate. Plaintiff is forty years of age. She now seeks rehabilitative alimony to permit her to attend Brookdale Community College in order to obtain her GED, through a basic skills test and remedial courses, and, thereafter, complete a business office certification program, involving twenty-three (23) credits at a cost of $85.00 per credit. Plaintiff expects this program to prepare her to be employed as a secretary with requisite skills. She has had limited previous experience as a secretary. She expects to complete the program in three years.
Plaintiff seeks a rehabilitative alimony award of $250.00 per week for a period of seven (7) years. Defendant argues that plaintiff is in fact seeking impermissible term alimony, that she is presently employed full-time, earning $7.45 per hour, and has demonstrated no concrete desire or plan to better her employment situation. 2
Rehabilitative alimony was first substantially sanctioned in Turner v. Turner, 158 N.J.Super. 313, 385 A.2d 1280 (Ch.Div.1978), and although not lacking objection (see, Arnold v. Arnold, 167 N.J.Super. 478, 401 A.2d 261 (App.Div.1979)), was recognized, at least implicitly, in Lepis v. Lepis, 83 N.J. 139, 155, 416 A.2d 45 (1980). 3
Moreover, the Family Part has long been authorized "... [p]ending any matrimonial action ... or after judgment of divorce ... [to] make such order as to the alimony or maintenance of the parties ... 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 Legislature in 1988 explicitly recognized the concept of rehabilitative alimony but did not significantly change the common law concept as it has developed. Milner v. Milner, 288 N.J.Super. 209, 214, 672 A.2d 206 (App.Div.1996).
"The basic premise of an award of rehabilitative rather than permanent alimony is an expectation that the supported spouse will be able to obtain employment, or more lucrative employment, at some future date." Shifman v. Shifman, 211 N.J.Super. 189, 194-95, 511 A.2d 687 (App.Div.1986) [emphasis added]. Effectively, rehabilitative alimony is term alimony payable for a reasonable period of time, beyond which it is anticipated such support will no longer be needed. Dotsko v. Dotsko, 244 N.J.Super. 668, 677, 583 A.2d 395 (App.Div.1990).
Moreover, the essential purpose of alimony is the continuation of the standard of living enjoyed by the parties prior to their separation. Mahoney v. Mahoney, 91 N.J. 488, 501-02, 453 A.2d 527 (1982). Specifically, in this regard, the factors that must be considered include "the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of these needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Lepis, supra, at 152, 416 A.2d 45.
Nevertheless, the ultimate purpose of rehabilitative alimony, whether the subject of a voluntary agreement or otherwise, is to help produce a self-sufficient individual, benefiting not only the recipient of the alimony, but the person paying the alimony. Avirett v. Avirett, 187 N.J.Super. 380, 454 A.2d 917 (Ch.Div.1982), overruled on other grounds, Shifman v. Shifman, 211 N.J.Super. 189, 511 A.2d 687 (App.Div.1986). Finally, in reaching its decision as to any award for alimony, the trial court must fully and specifically articulate findings of fact and conclusions of law in support of its decision. Heinl v. Heinl, 287 N.J.Super. 337, 347, 671 A.2d 147 (App.Div.1996).
Specific consideration must be given, therefore, to the relevant statutory factors set forth in N.J.S.A. 2A:34-23(b):
1. The actual need and ability of the parties to pay. Plaintiff is employed as a full-time sales person, whose income potential is limited, for which she presently receives $14,721.00, and has to contribute for her own and a portion of their child's medical insurance coverage. Defendant, who apparently has experienced some lean years, economically, has greater income potential, and presently earns in excess of $55,000.00, even with a separate existing child support obligation of $25.00 per week. 4 The plaintiff has submitted her Case Information Statement (CIS), in which she alleges total monthly expenses in the approximate amount of $2,795.00. Having reviewed this CIS, the court finds that plaintiff has reasonable monthly expenses of $2,351.00. Defendant alleges on his CIS that he has monthly expenses for himself and his personal residence of $1,964.50. The court finds that after certain reasonable deductions from this amount, defendant has reasonable monthly expenses of $1,500.00. Therefore, it is clear that the plaintiff has some degree of shortfall in her monthly net income vis a vis her reasonable expenses, and that the defendant has some degree of surplus.
2. The duration of the marriage. The parties were married for nine (9) years at the time of their separation, but had apparently lived together for six (6) additional years, for a total of fifteen (15) years. See, McGee v. McGee, 277 N.J.Super. 1, 14, 648 A.2d 1128 (App.Div.1994); Heinl, supra, at 348, 671 A.2d 147.
3. The age, physical and emotional health of the parties. Plaintiff is forty (40) years of age and defendant is thirty-seven (37) years of age. Both appeared at trial in reasonable physical and emotional good health.
4. The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living. It is undisputed that the "standard of living" during the entire relationship of these parties has substantially been defined by the defendant's progression in income. While it would be impossible under the facts of this case for these parties to truly maintain the status quo as to their, now, separate living arrangements, given their income potential, the burden would have to be more equalized to offer the possibility of even a reasonably comparable standard of living for both. Simply stated, an annual salary of $14,000.00, with limited possibility for growth, cannot be equated to an income of $56,000.00 per annum, with potential for growth, and maintain for the parties the reality of any "reasonably comparable standard of living."
5. The earning capacities, educational levels, vocational skills, and employability of the parties. The factual background earlier discussed, clearly demonstrates the present superior position of the defendant, at least in terms of earning capacity, vocational skills and employability.
6. The length of absence from the job market and the custodial responsibilities of the party seeking maintenance. It cannot be seriously disputed that as an adult, the plaintiff has largely been absent from the job market, and during the marriage had the significant custodial responsibilities for the parties' child, now age eleven (11).
7. 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. It is also clear, as discussed, that the significant financial contributions to the marriage were made by the defendant, with the plaintiff's contribution of a non-financial nature largely limited to those of the homemaker and caregiver for the parties' child. She rendered these services during the marriage, as apparently was the parties' understanding, during a time when if she...
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