The Ten Most Important Family Law Cases Reported in 2015
By: John P. Paone, Jr.
Without doubt, 2015 was a relatively lean year for reported family law opinions. Gnall v. Gnall, which was one of the most important Appellate Division decisions in recent years was taken up by the New Jersey Supreme Court. This decision was destined to be a landmark, attractingamicus curie filings by the American Academy of Matrimonial Lawyers, the Matrimonial Lawyers Alliance, and the Family Law Section of the New Jersey State Bar Association. By the time it was reported in 2015, however, Gnall was completely eclipsed by the new alimony statute which closed the curtain on permanent alimony.
As in prior years, in 2015 Judge Marie E. Lihotz and Judge Lawrence R. Jones authored multiple reported family law opinions, some of which made the top ten. As a whole, however, it seemed as if the reported opinions were in a holding pattern awaiting the development of case law to interpret the new alimony law and other statutory changes of recent years.
The following are my selections for the ten most important reported family law cases decided in 2015. This presentation will review each opinion and the impact that it will have upon our practice. Practice tips will also be discussed as to how matrimonial attorneys can best utilize these decisions.
Gnall v. Gnall, 222N.J.414 (2015)
Issue: Is it appropriate to deny permanent alimony and award limited duration alimony based upon a marriage of 15 years?
Holding: Depending on the circumstances, yes. There is no bright line rule by which the length of a marriage necessarily dictates an award of permanent alimony.
Discussion: The parties were married on June 5, 1993 and the Complaint for Divorce was filed in 2008, following a nearly 15-year marriage. At the time of trial, both parties were 42 years old.
At the time of the marriage, the wife had a bachelor’s degree in electrical engineering and a Master’s degree in computer science. During the marriage, she worked as a computer programmer through 1999 earning as much as $115,000.00 per year, at which time the parties decided that she would stay at home with their children. In 2006, the wife faced serious health issues and underwent brain surgery. Subsequently, she was able to resume a normal life with only minor facial paralysis.
The husband holds an accounting degree and Certified Public Accountant license. He is currently employed as Chief Financial Officer of Deutsche Bank’s Finance Division in America, and earns over $1,000,000.00 annually. Since 1999, he was the sole wage earner of the family.
At the time of the Judgment of Divorce, the three children were aged 12, 11, and 8. The wife was designated as the primary caretaker of the children.
At trial, the wife presented expert testimony which concluded that the expenses of the wife and three children totaled $18,578.00 per month. Both parties presented experttestimony concerning the wife’s ability to earn. The husband’s expert opined that the wife would be able to obtain an entry-level position earning between $58,000.00 and $69,000.00 per year, following 8 to 12 weeks to update her skills, and that she could thereafter rapidly increase her earnings to align with the national average of $80,000.00 to $94,000.00 annually as a computer programmer. The wife’s expert opined that she needed at least one to two years of training before she would be able to obtain employment. Following retraining, the wife’s expert opined that the wife could be expected to earn between $50,623.00 per year and $56,765.00 per year.
The trial court concluded that the marriage “certainly was not short term, but neither [was it] a twenty-five to thirty-year marriage.” Moreover, the trial court determined that “the parties were not married long enough” for the husband to be responsible for the wife’s ability to maintain their marital lifestyle. The trial court reasoned that the parties were relatively young, with at least 23 career years ahead of them; both were well-educated; both were in good health; and both were either employed or employable at good salaries that could support their lifestyles. The trial court imputed income to the wife of $65,000.00 gross per year, and awarded the wife 11 years of limited duration alimony at $18,000.00 per month.
In a published opinion, the Appellate Division reversed the trial court’s award of limited duration alimony and remanded the case for an evaluation of an award of permanent alimony. Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013). In making its determination, the Appellate Division stated that it did “not hesitate to declare a fifteen-year marriage is not short-term, a conclusion which precludes consideration of an award of limited duration alimony.”
The Supreme Court confirmed that the applicability of permanent alimony is to be assessed first. In the event the trial court determines that an award of permanent alimony is not warranted, the court must make specific findings identifying its reasoning. The Supreme Court cited with approval Cox v. Cox, 335 N.J. Super. 465 (App. Div. 2000) that “all other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether an award of permanent or limited durational alimony is warranted and awarded.” Id. at 483.
Concerning the facts of this case, the Supreme Court concluded that the trial court did not consider and weigh all of the statutory factors, but instead based its decision solely on one factor, i.e., the duration of the marriage. The trial court centered its decision on its view that permanent alimony awards were reserved for long-term marriages of 25 years or more. Furthermore, the Supreme Court concluded that the Appellate Division erred in inadvertently creating a bright-line rule when reversing the trial court. By not clarifying that the statement “we do not hesitate to declare a fifteen-year marriage is not short-term, a conclusion which precludes consideration of an award of limited duration alimony” was only intended to address this particular case, the Appellate Division made a generally applicable declaration. All 13 factors of the statute must be considered and given due weight, and the duration of the marriage is only one factor to be considered.
The Court thus reversed the Appellate Division but nevertheless remanded the matter to the trial court for new findings of fact and a new determination of alimony.
Observations:
The Appellate Division decision in Gnall v. Gnallwas one of the most important decisions of 2013, and its review by the Supreme Court was eagerly anticipated by the matrimonial bar. In the end, the decision was completely eclipsed by the New Jersey State Legislature which amended N.J.S.A. 2A:34-23(c) on September 10, 2014 to provide that “for any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union….” The permanent alimony which was addressed in Gnall no longer exists.
Looking down the road, practitioners await guidance from the courts in interpreting the new alimony statute. Among many others, two important legal issues will need to be addressed:
A.What constitutes exceptional circumstances? Under the new law, the only way a marriage of less than 20 years can qualify for open durational alimony is if exceptional circumstances exists. The statute sets forth the following exceptional circumstances which may require an adjustment to the duration of the alimony:
1.The ages of the parties at the time of the marriage or civil union and at the time of the alimony award;
2.The degree and duration of the dependency of one party on the other party during the marriage or civil union;
3.Whether a spouse or partner has a chronic illness or unusual health circumstance;
4.Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;
5.Whether a spouse or partner has received a disproportionate share of the marital estate;
6.The impact of the marriage or civil union on either party’s ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child;
7.Tax considerations of either party; and
8.Any other factors or circumstances that the court deems equitable, relevant and material.
B.Under the new law, alimony cannot exceed the length of the marriage. However, in a marriage less than 20 years where exceptional circumstances do not exist, what relationship if any is there between the duration of the marriage and the limited duration alimony term? In other words, to ask the question harkening back to Gnall, how many years of alimony would be awarded in a 15 year marriage today? The statute sets forth that the determination of the length and amount of alimony shall be made upon considering the 14 factors of which duration of the marriage is only one factor:
1.The actual need and ability of the parties to pay;
2.The duration of the marriage or civil union;
3.The age, physical and emotional health of the parties;
4.The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
5.The earning capacities, educational levels, vocational skills, and employability of the parties;
6.The length of absence from the job market of the party seeking maintenance;
7.The parental responsibilities for the children;
8.The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
9.The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
10.The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
11.The income available to either party through investment of any assets held by that party;
12.The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
13.The nature, amount, and length of pendente lite support paid, if any; and
14.Any other factors which the court may deem relevant.
Given the above, is Gnall and Cox still good law such that “all other statutory factors being in equipoise, the duration of the marriage marks the defining distinction….”?
The statute does adopt a similar analysis of the alimony factors as set forth by the Supreme Court in Gnall: “In each case where the court is asked to make an award of alimony, the court shall consider and assess evidence with respect to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard.” Put simply, all factors are of equal importance but the facts of each unique case may make some factors of greater importance than others.
Stay tuned.
Spangenberg v. Kolakowski, ___ N.J. Super. _____ (App. Div. 2015)
Issue: Does the amendment to N.J.S.A. 2A:34-23(n) relating to cohabitation apply to post-judgment Orders finalized before the effective date of the statute?
Holding:No. The legislative intent is clear that prior agreements executed, or final Orders filed, before adoption of the statutory amendments are not affected by the amendments.
Discussion:The parties were divorced in June 2012. Pursuant to their Marital Settlement Agreement (“MSA”), the parties agreed that the defendant/husband would pay to the plaintiff/wife $2,200.00 per month in alimony, calculated using imputed income to the wife of $45,000.00 and $125,000.00 to the husband. The wife agreed to inform the husband “when she [wa]s cohabiting with another,” which the parties agreed would trigger an alimony review “consistent with the Gayetcase and evolving caselaw.” The parties also agreed to review the husband’s alimony obligation on June 7, 2014, based upon an acknowledged expectation that the wife’s income would increase by that time.
Prior to the June 7, 2014 review, the husband moved to modify his alimony obligation, alleging that the wife was cohabiting. The wife admitted that she moved into her boyfriend’s residence on August 31, 2013. Following a review of the submissions and testimony of the parties, the trial court entered an Order finding that the wife received an economic benefit from the cohabitation and therefore, reduced the alimony payable from the husband to the wife from $2,200.00 per month to $1,350.00 per month.
Thereafter, the husband filed a Motion for Reconsideration seeking to review the wife’s need for alimony, which was denied on March 26, 2014. On July 21, 2014, the husband filed a Motion to modify or terminate alimony based upon the MSA’s two-year review provision, which the trial court denied. Thereafter, the trial court again denied the husband’s Motion for Reconsideration on November 7, 2014. The husband then appealed, arguing that the trial court ignored the amendments to the alimony statute addressing cohabitation.
The Appellate Division confirmed that courts generally enforce newly-enacted statutes prospectively, unless the statute clearly expresses a different intent. Although the amendments to the alimony statute themselves are silent except to state that the amendments are effective immediately (i.e., September 10, 2014), the legislative history accompanying the alimony amendments was clear. Specifically, the bill adopting the new law stated that the act “shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into: a. a final judgment of divorce or dissolution; b. a final order that has concluded post-judgment litigation; or c. any enforceable written agreement between the parties.”
As the husband’s initial application seeking to reduce his alimony obligation based upon the wife’s cohabitation was made final before the statutory amendment’s effective date, the new cohabitation provisions do not apply to this case or otherwise impact the alimony determination.
Observations:
N.J.S.A. 2A:34-23(n) provides that “alimony may be suspended or terminated if the payee cohabits with another person.” Although alimony was modified by the trial court in Spangenburg, the question not addressed is whether the new statute now makes cohabitation an all or nothing situation (i.e. alimony can be terminated or suspended but not modified due to cohabitation).
Spangenburg received a modification but attempted to invoke the statute to receive greater relief. Judge Lihotz makes clear that the statute is not to be given retroactive application relying on the legislative history accompanying the statute: “This act shall take effect immediately and shall not be construed either to modify the duration of the alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:
a.a final judgment of divorce or dissolution;
b.a final order that has concluded post-judgment litigation; or
c.any enforceable written agreement between the parties.”
The question is, had the husband waited until September 10, 2014 to file his cohabitation motion, would this case have been decided differently? Would alimony have been suspended or terminated, as opposed to merely reduced? Is the statute to be interpreted to mean that the Lepis v. Lepis 83 N.J. 139 (1980) change in circumstances style modification has now been crowded out of the law of cohabitation?
Again, stay tuned.
Elrom v. Elrom, 439 N.J. Super. 424 (App. Div. 2015)
Issue 1: May a court impute income to a party for purposes of calculating alimony and child support, when that party is already employed full-time?
Holding 1: Yes. In assessing a party’s capacity to earn, a court must examine the party’s field of expertise, employment and salary history, and job availability. Conversely, the court must also consider the needs of the children as those needs impact a party’s ability to earn.
Issue 2: May a court require an obligor to contribute to child care and extracurricular activity expenses, above and beyond the weekly child support sum he or she is ordered to pay?
Holding 2: Yes. However, in this case, the trial court’sdecision to require the obligor to contribute to child care and extracurricular activity expenses above his child support obligation was insupportable, as the trial court failed to reduce the obligee’s imputed income by her share of the child care expenses, and the trial court failed to explain why it deviated from the Child Support Guidelines.