Margaret S. Frey v. Thomas G. Frey
Docket No. A-2271-21
Decided March 28, 2024
Submitted by New Jersey Divorce Lawyer, Jeffrey Hark.
The Appellate Division of New Jersey in a recent unpublished decision reversed a Dual Judgment of Divorce for alimony and equitable distribution for the Court’s failure to apply correct law to each category.
In Frey, the parties married in August 1988. Plaintiff owned a dance studio for approximately twenty-four years. The studio was purchased at the beginning of 1986, two years prior to the marriage. Defendant was a certified public accountant and became an attorney in the early years of the parties’ marriage. Defendant eventually started his own tax and accounting business in the early 2000s.
The marriage began to deteriorate in the 2000s, and defendant moved out of the marital home in September 2010. In 2011, defendant was charged, and later pleaded guilty to, one count of extortion and one count of attempt and conspiracy to commit mail fraud, for which he served a twenty-seven-month prison term from 2015 to 2017. Defendant’s CPA license was revoked, and he was disbarred.
Plaintiff’s dance school gradually declined over the past decade. Plaintiff’s health deteriorated after being diagnosed with multiple sclerosis, which limits her ability to teach dance.
Since his release from prison, defendant works as a bookkeeper, and claims he earns approximately $1,500 to $2,200 a month. In 2020, defendant applied for and received two SBA loans to start a stock trading business. These funds were deposited into one of the marital joint accounts. Plaintiff closed her dance school in March 2020. The marital home was sold in February 2020 for $525,800. There was a Judgment against defendant that was satisfied from the proceeds obtained from the sale of the marital home.
The trial Court divided assets for the divorce, however it failed to discern which assets and debts were marital and which were excluded, requiring the Appellate Division to reverse and for the trial court to perform this step. Specifically, the loans acquired by Defendant were post divorce complaint filing, which should have been excluded from equitable distribution and were not.
The trial Court awarded Plaintiff alimony for four years at $1,500 per month. The trial court did not explain how it came up with the $1,500 per month figure. What’s more, the Court reasoned that Defendant was reaching retirement age in four years, and therefore ordered alimony for four years. This analysis runs contrary to the law, requiring the award to be open-durational and for the Defendant to make an application upon retirement to reduce/modify his obligation then. It was not the trial court’s role to make that determination at the divorce stage.
Lastly, the Court awarded counsel fees for Defendant payable by Plaintiff and failed to assess the correct statutory factors when reaching its conclusion.
Pursuant to N.J.S.A. 2A:34-23(b), courts are permitted to “award one or more of the following types of alimony: open durational alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party.” The statute provides a non-exhaustive list of factors that must be considered by the court in making its determination. N.J.S.A. 2A:34-23(b)(1)-(12). An award of limited duration alimony is intended to recognize a “dependent spouse’s contributions to a relatively short-term marriage that demonstrated attributes of a ‘marital partnership.'” J.E.V. v. K.V., 426 N.J. Super. 475, 486 (App. Div 2012) (quoting Cox v. Cox, 335 N.J. Super. 465, 486 (App. Div. 2000)). Because limited duration alimony is not intended to be a replacement for permanent alimony, a limited duration award is “singularly inappropriate” for long marriages, typified by significant length and contributions. Ibid. (Cox, 335 N.J. Super. at 482). Indeed, the length of the marriage is the “defining distinction” between open and limited duration alimony. Id. at 488 (quoting Cox, 335 N.J. Super. at 483). Open duration alimony is the presumptive award for lengthy marriages. See Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 353 (App. Div. 2009).
However, the length of a marriage alone cannot determine alimony. Economic dependence is a “crucial finding” necessary to award alimony. Gnall v. Gnall, 432 N.J. Super. 129, 143 (App. Div. 2013), rev’d on other grounds, 222 N.J. 414 (2015). “The extent of actual economic dependency, not one’s conduct as a cohabitant, must determine the duration of support as well as its amount.” Reese v. Weis, 430 N.J. Super. 552, 571 (App. Div. 2013) (quoting Gayet v. Gayet, 92 N.J. 149, 154 (1983)). Courts must evaluate all the facts when determining whether a claim of economic dependence warrants long-lasting support. Gnall, 432 N.J. Super. at 153.
Here, there must have been some evidence submitted to the Court that would have rebutted an entry of open duration alimony based on a thirty-three year marriage. Recognizing that no evidence was presented, the Appellate Division reversed.
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