SHARON NOCHENSON v. ROBERT NOCHENSON

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Superior Court of New Jersey, Appellate Division.

SHARON NOCHENSON, Plaintiff–Respondent, v. ROBERT NOCHENSON, Defendant–Appellant.

DOCKET NO. A–0349–10T3

Decided: June 30, 2011

Before Judges Ashrafi and Kestin. Samuel D. Bornstein argued the cause for appellant. Michael J. Evans argued the cause for respondent (Law Offices of G. Dolph Corradino, attorneys;  Mr. Evans, on the brief).

Defendant, Robert Nochenson, appeals from an order of the Family Part, entered eight years after a final judgment of divorce, granting the motion of plaintiff, Sharon Nochenson, for permanent alimony and also requiring that he pay $2,000 of her attorney's fees.   We reverse and remand for a plenary hearing.

The parties were married in 1985 and divorced in 2002.   In 2010, their two children were grown, and child support payments were consensually terminated.   Robert is a forty-percent owner of a family business, Morris Industries, which employed Sharon during and after the marriage on a part-time basis.1  In addition to salary, Sharon received substantial benefits from the business, including medical, disability, and life insurance, contributions to a 401K retirement account, a leased car, use of business credit cards, and a cell phone for her personal use.

Sharon's 2001 case information statement (CIS) at the time of the divorce litigation alleged her earned income was $19,603, Robert's was $124,986 for 1999, and the parties' had unearned income of $654,573.   She claimed joint net annual income of $457,379 after income taxes.

At that time, Robert's father, who was the majority owner of Morris Industries, had excluded him from participation in the business.   Robert was receiving substantial unearned income, however, including monthly payments from a family trust fund duplicating his prior salary.   With the aid of their attorneys, the parties entered into a marital settlement agreement, which was incorporated into the final judgment of divorce.   The agreement included the following paragraph 16 pertaining to alimony:

16.  The Husband shall not be required to pay alimony to the Wife at this time.   If at any time in the future the Wife is unable to work, or if she is involuntarily terminated from her position with Morris Industries, such will be considered a change of circumstances.   The Wife may then petition the court for alimony, without the necessity of proving a change of circumstances, no matter what the then current law may be.   However, the parties agree that for the Wife to petition the court for alimony under the aforesaid circumstances, the Husband must be capable of receiving a sum comparable to his current unearned income, through either earned or unearned sources of income.

The settlement agreement also provided substantial equitable distribution of property to Sharon, including the marital home and parts of other assets held by Robert alone.   According to Robert, the value of Sharon's equitable distribution had risen to almost $2,000,000 by 2010.   Sharon disputes that all her assets in 2010 were derived from equitable distribution, claiming that she received a substantial inheritance and that the children's college fund is also included in the assets shown in her current CIS. She contends that equitable distribution was not intended to eliminate her need for alimony.

Sometime after the divorce, Robert returned to active participation in Morris Industries.   Apparently because of discord during the marriage and divorce proceedings, Morris Industries instructed Sharon in February 2005 not to come to the office.   Robert claims she was required to work instead from home, but that she preferred to devote her time to tennis and other personal activities and did little work for the company.   Morris Industries continued to pay her salary and benefits, however, which Sharon values at almost $59,000 per year.

Sharon eventually moved to North Carolina and obtained part-time employment.   Some time later, Morris Industries notified Sharon that her employment, salary, and benefits would terminate at the end of the lease term on her car in June 2010.   As that date approached, Sharon filed a motion in the Family Part for permanent alimony under the provisions of paragraph 16 of the settlement agreement previously quoted.

Robert opposed the motion claiming that Sharon moved because she wanted to be with a man who lived in North Carolina and to concentrate on her tennis activities.   He asserted she was terminated from her position with Morris Industries because she made herself unavailable to provide services as an employee.   Robert also claimed Sharon has a business degree and is capable of obtaining lucrative employment independently.   Sharon responded that she moved to North Carolina at a time when her work was not needed or desired at Morris Industries, and that she has never worked in her profession or as a full-time employee since her children were born.   She also stated she lost her part-time position and was entitled to alimony since Morris Industries was no longer paying her.

The attorneys for the parties sought a plenary hearing to prove their positions on the contested issues related to alimony.   The court initially met with counsel and heard argument on Sharon's motion, urging the parties to settle the dispute.   The court agreed that a plenary hearing would have to be held if the parties could not reach agreement.   However, at the next court appearance, the court noted that a hearing could not be scheduled for many months and, instead, decided Sharon's motion based on the certifications of the parties and information from the past and present CIS.

The court acknowledged it was not making an independent determination of whether Sharon was entitled to permanent alimony at the time of the divorce proceedings in 2002, stating:  “The parties were married for 17 years.   I have no doubt in my mind that there would have been a permanent alimony issue at the time of divorce eight years ago.   Whether I would have granted it or not, I'm not sure.”   In its ruling, the court implicitly assumed that Sharon's salary and benefits from Morris Industries were a substitute for permanent alimony directly from Robert.   It assessed the parties' present circumstances based on financial information that appeared not to be disputed and awarded permanent alimony in place of those employment benefits.   By order dated August 27, 2010, the court directed that Robert pay $2,580 per month as of June 10, 2010, and also $2,000 of Sharon's attorney's fees for the motion.   This appeal followed.

Robert does not contend that the amount of alimony ordered is beyond his financial means.   He contends the court erred in ordering permanent alimony without first determining through an evidentiary hearing the parties' intent at the time of the divorce settlement, the parties' lifestyle and expenditures during the marriage, as required by Crews v. Crews, 164 N.J. 11 (2000), and Sharon's need for alimony in 2010.   Sharon responds that she was clearly entitled to permanent alimony at the time of the divorce, there were no genuine issues of disputed fact regarding the parties' lifestyle and finances, and the court appropriately dispensed with an unnecessary evidentiary hearing to order a modest payment of alimony.

“In reviewing an alimony award, ‘[w]e give deference to a trial judge's findings as to issues of alimony, if those findings are supported by substantial credible evidence in the record as a whole.’ ”  Cox v. Cox, 335 N.J.Super. 465, 473 (App.Div.2000) (quoting Reid v. Reid, 310 N.J.Super. 12, 22 (App.Div.), certif. denied, 154 N.J. 608 (1998)).   In Gonzalez–Posse v. Ricciardulli, 410 N.J.Super.   340 (App.Div.2009), we elaborated on what our standard of review entails:

To vacate a trial court's finding concerning alimony, we must conclude that the trial court clearly abused its discretion or failed to consider all of the controlling legal principles, or we must otherwise be 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 all of the proofs as a whole.

[Id. at 354.]

Here, we conclude the Family Part failed to consider all the controlling principles of law and also did not have a sufficient record from which to assume that the parties' settlement agreement was intended permanently to substitute Sharon's salary and benefits for alimony, or to require Robert personally to pay a similar amount.   We agree with Robert that genuine issues of disputed fact exist that require an evidentiary hearing.

The parties' intent as to permanent alimony is not clearly revealed by the language of paragraph 16 of the settlement agreement.   While it may have been their intent to establish Sharon's income and benefits from Morris Industries as a substitute for permanent alimony, paragraph 16 can also be read as deferring resolution of the alimony issue until specified changed circumstances occurred, namely, involuntary termination of Sharon's income and benefits.

The agreement provided that if Sharon could not work, or if Morris Industries involuntarily terminated her salary and benefits, and if Robert continued to have income comparable to the time of the divorce, then Sharon would be relieved from proving changed circumstances to apply for alimony, as otherwise she would have been required to do under Lepis v. Lepis, 83 N.J. 139 (1980).   The agreement did not state that Sharon was entitled to permanent alimony, or not entitled to it.   It also did not state that an award of alimony should attempt to duplicate her salary and benefits from Morris Industries.   It left those matters for future determination.   The Family Part's assumption was not adequately supported by the language of paragraph 16 or other documents in the record.

N.J.S.A. 2A:34–23c requires that the court “make specific findings on the evidence” regarding statutory factors relevant to an award of alimony.   Those factors are listed in N.J.S.A. 2A:34–23b:

(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;

(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;  and

(13) Any other factors which the court may deem relevant.

In Carter v. Carter, 318 N.J.Super. 34, 42 (App.Div.1999), we held that, in ordering alimony, the court “must adhere to the statutory requirement in every case, whether contested or uncontested.”   That is, the court must make findings of fact and determine whether permanent or another kind of alimony is appropriate, and if so, a fair amount based upon the statutory factors.   See also Heinl v. Heinl, 287 N.J.Super. 337, 347 (App.Div.1996) (remand necessary because of Family Part's “[n]aked conclusions” inadequately supported by findings of fact in accordance with the statutory provisions authorizing an award of alimony).

Here, the court did not expressly assess all the statutory factors in ruling that Sharon was entitled to an award of permanent alimony and the specific amount.   It did not state findings of fact pertaining to her need for alimony, her employability, the financial and non-financial contributions of each party to the marriage, or the effect of equitable distribution and Sharon's other sources of income on her ability to maintain the marital lifestyle.   It did not consider the disputed issues of the parties' intent in entering into the agreement as stated in paragraph 16 and whether Sharon was involuntarily terminated by Morris Industries or voluntarily chose to stop working.

Because specific findings and conclusions relevant to determining an award of alimony were not made, we reverse and remand to the Family Part to hold an evidentiary hearing at which the parties may present proofs relevant to the disputed issues.   The court shall apply the statutory factors and make findings of fact and state its conclusions at to Sharon's right to alimony.

Reversed and remanded.   We do not retain jurisdiction.

FOOTNOTES

1.  FN1. We will use the parties' first names in this opinion, sacrificing formality for easier reference by the reader.We mean no disrespect.

PER CURIAM

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