(973) 403-9200
By Charles F. Vuotto, Jr.
Editor-in-Chief
(See our related Podcast on Women and Divorce – Alimony)
It is with some level of concern that I comment upon the recent Appellate Division decision in the case of Elizabeth Gnall v. James Gnall, approved for publication on Aug. 8, 2013.[i] Before commenting on this case, I wish to sincerely express my great admiration for the author of the opinion, the Honorable Marie Lihotz, J.A.D., and the attorneys on the appeal (Dale E. Console and Barry L. Baime). Judge Lihotz is a remarkable jurist and has authored a number of important opinions.[ii]Judge Lihotz and both counsel are of the highest caliber of members of the bench and bar.They have contributed greatly to the development of family law in the state of New Jersey and continue to do so. However, it is this author’s opinion that the decision in Gnallmay work to exacerbate the problems associated with the law of alimony in this state, increase the lack of consistency and predictability and give further fodder to the factions clamoring for alimony guidelines. In essence, and in this author’s opinion, the wording of this case (although perhaps not the intent) eliminates consideration of limited duration alimony in marriages of 15 years (or more). There are also some other problematicareas, which will be addressed herein.
The Gnalls were married on June 5, 1993, and had three children who, at the time of the appeal were 14, 13, and 11. The complaint for divorce was filed in 2008, thereby characterizing the marriage as one of 15 years duration. The appeal was taken from several provisions of the final judgment of divorce following a 17–day trial, including the propriety of awarding limited duration alimony (LDA). Although there were other issues raised on appeal, this column will focus on the alimony and related issues.
At the time of trial, which commenced on April 8, 2009, both parties were 42 years of aged. The wife was highly educated and had a significant employment history, but left the workforce outside of the home to principally care for the children after 1999. She worked in computer programming. She submitted to two vocational evaluations, one by her expert and one by the husband’s expert. The husband’s expert concluded she could expect an initial annual salary of between $58,000 and $69,000, but judging by her past performance, she could anticipate rapid wage growth and, within two to three years, perhaps earn an annual salary in excess of $115,000. The wife’s vocational expert differed on the length and cost of rehabilitation and retraining. He concluded herpossible employment as a software engineer could earn her $56,764 at an entry-level position, with a mean salary of $67,763. The husband was a certified public accountant working as a chief financial officer for the American Financial Group of Deutsche Bank. His total compensation ranged from $510,000 in 2005 to $2.1 million in 2010.
The wife’s initial case information statement listed total family expenses of approximately $35,000 per month. Her budget was revised downward to $21,041 to reflect the change in residence after the marital home in Ridgewood was sold. The husband listed the family’s joint marital lifestyle living in Ridgewood as $23,664 per month, of which he allocated $10,906 for his needs. He also modified his budget after moving to New York City, claiming monthly expenditures of $19,803.The trial court concluded the parties enjoyed an “upper-middle class” lifestyle that was more “modest than what could be afforded on [the husband’s] more recent remuneration.”[iii] The trial judge fixed the wife’s and children’s monthly needs at $18,000 per month. After concluding she could return to the computer field and earn “between $61,200 and $94,000,” the trial judge considered the alimony factors in the course of his obligation to make statutory findings.
Importantly, the trial judge found that the parties 15-year marital relationship was “not short term[.]”[iv]Theappellate court characterized the trial court’s key findings as follows:
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Nevertheless, when he weighed the “relatively young” age of the parties, and their good health and education, which allowed them to obtain employment “at good salaries” and thereby support “excellent lifestyles for themselves and their children[,]” the judge concluded “the parties were not married long enough and are not old enough for [defendant] to be responsible to maintain that lifestyle permanently for [plaintiff].” He therefore concluded, “this is not a permanent alimony case.”[v]
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The above quote strongly suggests the trial judge took action to comply with his obligation to assess the facts of the case in light of the statutory factors and identified those particular factors that, in the discretion of the court, impacted the issue of duration.
The trial judge rejected an award of rehabilitative alimony.[vi] The trial judge also noted that the wife had failed to work toward obtaining employment during the two years the case was pending. Consequently, the trial judge imputed $65,000 annual income to her, effective immediately, and awarded $18,000 per month LDA for 11 years.[vii]Importantly, the alimony award was to terminate on Sept. 1, 2021, a date that was coincident with the youngest child’s anticipated departure for college. Further, the trial judge ordered that the award would not be subject to modification based on the plaintiff’s future earnings; rather, modification would be permitted only upon either party’s death or the plaintiff’s remarriage.[viii]
The Appellate Division, in Gnall, recognized that in both Cox v. Cox[ix] and J.E.V. v. K.V.[x] the propriety of the trial judge’s award of LDA was challenged, and in each case a significant determining factor was the length of the respective marriages. The J.E.V. court (quoting Cox[xi])stated that “the duration of the marriage marks the defining distinction between whetherpermanent orlimited duration alimony is warranted and awarded.””[xii]In Gnall, theAppellate Division further expanded the importance of Cox by stating that “[t]he Coxes had been married for twenty-two years, a circumstance clearly removing any possibility of a limited duration alimony award.”[xiii]This statement is not found in Cox, but is now added to our jurisprudence by Gnall.
The Gnallcourt agreed with the trial judge’s characterization of the marriage between the Gnalls as “not short-term.”[xiv] However, the appellate panel found fault in the trial court’s conclusion that consideration of an award of permanent alimony was obviated by the parties’ relatively young ages and the fact that they were not married long enoughcommenting itwas not a 25-to-30 year relationship. The appellate panel found this conclusion was in error and must be reversed.[xv]
It should be noted that the Appellate Division, in Gnall, concluded that J.E.V. and Cox have “painstakingly compared and contrasted awards of permanent alimony and limited duration alimony, and these cases include a recitation of the legislative history underpinning the purpose in adopting limited duration alimony.”[xvi] The question of whether JEV and Cox are clear with regard to the underlying public policy supporting both permanent and LDA is beyond the scope of this column but worthy of future discussion.
The following commentary provided by the Appellate Division in Gnallprovides a new view of permanent alimony versusLDA:
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Contrary to the judge’s belief, permanent alimony awards are not reserved solely for long-term marriages of twenty-five to thirty years. While marital relationships of such duration, when coupled with a created economic dependence by one party, typically result in permanent alimony awards, there is no per se rule that permanent alimony is unwarranted unless the twentieth anniversary milestone is reached. Moreover, any attempt to reduce the shared marital experience to a formulaic calculation of compensation based on the number of years “in the marriage,” completely disregards the public policy considerations supporting continuation of economic support beyond the spouses’ joined personal lives.[xvii]
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As stated, the seminal case distinguishing permanent alimony and LDA is the Appellate Division decision of Cox v. Cox.[xviii] The Cox court addressed the legislative intent surrounding the creation of LDA, explaining that the amendment was proposed in order to “establish limited duration alimony as a third type of alimony, to be used in all cases involving shorter-term marriages where permanent or rehabilitative alimony would be inappropriate or inapplicable but where, nonetheless, economic assistance for a limited period of time would be just.”[xix] The Cox court discussed the legislative exclusion of LDA awards in long-term marriages, quoting from the Divorce Study Commission Report, as follows:
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In particular, it is singularly inappropriate in long marriages. It is, therefore, the clear and unequivocal view of the Commission that such term alimony should be limited to shorter marriages and not be ordered in long-term marriages.[xx]
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InGnall, the Appellate Division emphasized that although courts must consider the duration of the marriage when fixing alimony, the length of the marriage and the proper amount of duration of alimony do not correlate in any mathematical formula, citing to Lynn v. Lynn.[xxi] The Gnallcourt found this concept was reinforced by the Legislature confining LDA awards to those “shorter-term marriages,” where the facts make a permanent alimony award “inappropriate or inapplicable.”[xxii]
The recitation of the existing case law concerning permanent alimony versus LDA (i.e., as found in Cox and J.E.V.), however, does not necessarily serve the practitioner. As suggested earlier in this column, the standards in those cases maynot provide a clear public policy or clear guidance[xxiii] to the practitioner or trial courts when trying to determine whether a particular case calls for permanent alimony versus. LDA. For example,the following stated reasons for awarding LDA possibly raise more questions than answers among lawyers and trial judges:
The decisional law of this state must define key terms (i.e., long-term or short-term) or refrain from using them. There is no question that the courts are relying, almost exclusively, on the duration of the marriage to mark the key differentiating factor between permanent alimony and LDA.[xxvii]If this is the correct approach, which one may question, we need guidance on what these terms mean.
With all of the foregoing having been laid out by the Appellate Division, the following paragraph is the mosttroubling in the decision:
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We do not intend to draw specific lines delineating “short-term” and “long-term” marriages in an effort to define those cases warranting only limited duration rather than permanent alimony. We also underscore it is not merely the years from the wedding to the parties’ separation or commencement of divorce that dictates the applicability or inapplicability of permanent alimony. Nevertheless, 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.[xxviii]
In this author’s opinion, each of the three sentences of this paragraph is problematic. The words “short-term” and “long-term”are used over and over again in our case law, and yet we are left toguess what they may or may not mean. For years, attorneys representing dependent spouses in a 10-year marriage would cite to Hughes v. Hughes[xxix] for the proposition that a 10-year marriage was of sufficient length to justify permanent alimony. Most practitioners (and courts) viewed that decision as an anomaly, and did not follow it for that proposition.
The second sentence of the aforementioned paragraph is also problematic. Initially, although the court states the length of the marriage is not the only factor that “dictates the applicability or inapplicability of permanent alimony,” it is that factor above all others that forms the basis of the Appellate court rejectingthe trial court’s award of LDA. Further, this sentence contradicts Cox, which provides that:
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In determining whether to award limited duration alimony, a trial judge must consider the same statutory factors considered in any application for permanent alimony, tempered only by the limited duration of the marriage. All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is awarded.(Emphasis added).[xxx]
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Where all other factors are in ’equipoise,’ a prior appellate panel has stated that the years of the marriage do, in fact, represent the single most important factor. However, notwithstanding the troubling aspects of the first two sentences, the last sentence of the aforementioned paragraph is perhaps the most troubling. There is no question that this paragraph stands for the proposition that LDA cannot be awarded in a marriage of 15 years or more. The problematic sentence bears repeating,and reads as follows:
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Nevertheless, 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.(Emphasis added).[xxxi]
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Working through the double-negatives, broken down into its component parts, this sentence conveys three messages:
Notwithstanding the emphasis on the need for the court to analyze all of the facts of every case in light of the statutory factors, there is nothing in the remainder of the opinion thatalters the three messages delineated within that sentence. This is confirmed by the first sentence of the court’s concluding section of the decision, which provides that:
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In summary, we reverse the order of limited duration alimony and remand for consideration of an award of permanent alimony.[xxxii]
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The appellate courtleft no option to the trial court on remand to consider LDA (or any other form of alimony). Therefore, the appellate court directed the trial court, on remand, for consideration of an award of permanent alimony. As such, the trial court must either award no alimony or permanent alimony. There is nothing in the body of the decision or the directive from the appellate court that would allow any other result.
Some may argue this is an exaggeration of what the appellate court said, and that the above statement is a reaction to the trial judge concluding this was a ’short-term’ marriage. However, that’s not what trial judge said. According to the appellate court, the trial judge said the following:
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Nevertheless, when he weighed the “relatively young” age of the parties, and their good health and education, which allowed them to obtain employment “at good salaries” and thereby support “excellent lifestyles for themselves and their children[,]” the judge concluded “the parties were not married long enough and are not old enough for [defendant] to be responsible to maintain that lifestyle permanently for [plaintiff].” He therefore concluded, “that this is not a permanent alimony case.”(Emphasis added).[xxxiii]
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Therefore, the trial judge did not conclude that this was a short-term marriage. In fact, he expressly said that it was “not short-term.”[xxxiv] The trial judge went beyond the length of the marriage, however.Essentially, the trial judge based his decision on multiple statutory factors, as he was required to do. It appears the trial judge did his job in analyzing the factors. The appellate court, however, interjected it’sown analysis of the factors (insertingitsown views of which factors should and should not be given greater weight).such as emphasizing the length of the marriage and de-emphasizing the age of the parties.
In other words, in Gnall theappellate court diminished the trial judge’s rationale for awarding LDA versuspermanent alimony based upon the age of the parties. The trial court took,perhaps, one of the few statutory factors that actually relates to duration (which highlights the fallacy of attempting to determine duration of alimony by an analysis of the statutory factors), and determined it was not going to award permanent alimony based on the age of the parties. Now we have the appellate court saying a dependent spouse’s age alone also cannot obviate permanent alimony.[xxxv] If you do not identify the statutory factors that actually relate to a determination of duration for lawyers and trial courts, and then you take one of the few factors that actually does and indicate that a trial court cannot rely on it to support its determination of duration, then the courts are further confusing the directive to determine the duration of alimony by an analysis of the factors.
This writer does applaud the Gnallcourt for providing additional factors that appear to be intended to relate to a determination of the duration of alimony, as follows:
Adding to the problems associated with this decision is the court’s reliance on the need to maintain the dependent spouse at the marital standard of living. As this author has opined in prior columns (and as recently noted in J.E.V.[xxxviii]), the emphasis on maintaining the marital standard of living should be reduced. The Gnallcourt grounded its implied support of a permanent alimony conclusion upon the need to maintain Ms. Gnall at the marital standard of living.[xxxix] The appellate court in Gnall concluded that the trial judge failed to fully assess all evidence regarding the 15-year marital enterprise, including the plaintiff’s ability to achieve something close to the marital standard of living in the future, without the benefit of the defendant’s economic assistance.[xl]Respectfully, that appears to be putting the cart before the horse (i.e., the fact that a dependent spouse in an LDA case cannot maintain the standard of living is not a basis not to award LDA[xli]).If every possible LDA award is dependent on the dependent spouse maintaining the marital standard of living, far fewercases will qualify for an LDA award.
The Gnallappellate court concluded that:
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Accordingly, the award of limited duration alimony is reversed and the matter is remanded for an evaluation of an award of permanent alimony.[xlii]
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This directive on remand, in conjunction with the court’s statement that “nevertheless, we do not hesitate to declare a 15-year marriage is not short-term, a conclusion which precludes consideration of an award of limited duration alimony,” makes clear that the trial court on remand is limited to awarding permanent alimony or none at all.
Aside from the various troubling aspects of this decision, as noted above, it also appears to be at variance with other appellate decisions. The appellate court,in Gordon v. Rozenwald,[xliii]declined to review an LDA award for consideration of permanent alimony where the parties agreed to a 15-year term selected at the end of a 15-year marriage. The Gordoncourt stated, “[t]here is nothing inherently unfair about the agreed upon duration of this term.”The appellate court, in Weaver v. Weaver,[xliv]remanded for review of LDA in lieu of permanent alimony after a 14-year marriage. In Jones,[xlv]a post-judgment matrimonial matter, the defendant appealed from an order denying her motion to extend the term of her LDA and convert it to permanent alimony, as well as an order denying reconsideration, arguing primarily that the decision was not supported by substantial, credible evidence and she was entitled to extended alimony, as a matter of equity, because she was married for 18 years. The appellate court found the judge made extensive factual and legal findings that were amply supported by the record and therefore affirmed substantially for the reasons expressed below, including that the defendant failed to establish unusual circumstances under N.J.S.A. 2A:34-23(c)or a substantial change in circumstances on the issue of the ability to support herself to justify extending her alimony under the Lepis standard. The court further found that, although the defendant was potentially entitled to permanent alimony given the marriage’s duration, she chose to accept a property settlement agreement that provided for LDA, and she did not show that the agreement was unconscionable or so inequitable that judicial interference was warranted.
On a separate note, I would be remiss if I did not mention that there are certain other interesting aspects of this decision, including the court’s clarification with regard to the definition of the ‘marital standard of living.’ The appellate courtnoted that:
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We reject plaintiff’s suggestion that the marital standard of living, as used in N.J.S.A. 2A:34-23(b)(4), is defined by the dollar amount of expenses incurred immediately prior to filing for divorce.The “standard of living enjoyed during the marriage” is a concept that certainly includes objective criteria, such as the actual amount spent for mortgages, real estate taxes, car payments, and food expenses. However, it also encompasses more subtle components such as the intervals between car purchases, whether there has been a preference for new or pre-owned vehicles, and the frequency of and nature of restaurants when dining out.[xlvi]
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On another separate note concerning the imputation of income to the wife in Gnall, although the recognition of the need for a dependent spouse to contribute as best he or she can to his or her support and the support of the children, the appellate court deviated from this view regarding the pendente lite period. The appellate court stated:
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“We are aware of no authority mandating a dependent spouse, absent from the workforce, by agreement, for a significant period of time, to immediately prepare for and return to work pendente lite, absent notice of this expectation presented by motion or court directive.We are not suggesting able spouses do not hold the responsibilities to support themselves; we are only finding there is no support in this record for the judge’s conclusion resulting in the immediate imputation of $65,000 annual income.”[xlvii]
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After taking nearly two pages to detail the law regarding imputation of income, the appellate court then made an unexpected reversal regarding to the pendente lite period. Why doesn’t the dependent spouse have an obligation to pursue his or her earning potential pendente lite? Does this suggest the supporting spouse need not work during the pendente lite period unless the parties agree or an order is entered? The obligation to work to one’s fullest capacity and to contribute to his or her support and that of the children is no less imperative during the pendente lite period than it is post-judgment. Respectfully, there should be no need for there to be a motion or court directive for this obligation to be triggered. That doesn’t mean a dependent spouse who has been out of the work force for a significant period of time does not require a ramp-up period prior to achieving his or her full earning potential. However, the obligation to begin to pursue that earning potential is triggered immediately upon the commencement of divorce proceedings and should not be suspended during the pendente lite period. Dependent spouses will now take this paragraph and argue they have no obligation to work pendente lite. This language is unfortunate.
Conclusion
In conclusion, it is this author’s sincere concern that this case is going to lead to the following:
Who is to say that a 15-year (or even 22-year) marriage is long-term? Life expectancy increases with age as the individual survives the higher mortality rates associated with childhood.[xlviii] People marry and divorce as adults; therefore, life expectancy must be viewed from that perspective. According to the table of life expectancy found in the 2013 New Jersey Lawyers Diary and Manual, an individual between the ages of 45 and 46 (most people tend to get divorced in their mid-40’s), can expect to live another 34.7 years[xlix] (i.e., to around age 80[l]). If true, then a 15-year marriage represents only 18.75 percent of that person’s life. Is that long-term?
There needs to be a change to our law concerning limited duration alimony. It cannot be barred in ‘long-term marriages’ and relegated only to ‘shorter-term’ marriages (however those terms are defined). As lawyers charged with identifying all factual nuances and possibilities, I’m sure we all can envision many factual circumstances where limited duration alimony would be appropriate even in a ‘long-term’ marriage. If we are truly to analyze each case on its facts in light of the statutory factors (in addition to those that may be added by case law) and not rely solely on one (or limited) factors, then there should be no bright line rule barring limited duration alimony based only on the length of the marriage.
[i]Gnall v. Gnall, 2013 N.J. Super. LEXIS 115 (App. Div. Aug. 8, 2013).
[ii] SeeFinamore v. Aronson, 382 N.J. Super. 514 (App. Div. 2006); Genovese v. Genovese, 392 N.J. Super.215 (App.Div. 2007); Colca v. Anson, 413 N.J. Super. 405 (App. Div. 2010); State Div. of Youth & Family Servs. v. T.G., 414 N.J. Super. 423 (App. Div. 2010); New Jersey Div. of Youth and Family Servicesv. J.C., 423 N.J. Super.259 (App. Div. 2011); Jacoby v. Jacoby, 427 N.J. Super.109 (App. Div. 2012); Milne v. Goldenberg, 428 N.J. Super.184 (App. Div. 2012); Clark v. Clark, 429 N.J. Super.6 (App. Div. 2012); Reese v. Weis, 430 N.J. Super.552 (App. Div. 2013).
[iii]Gnall, 2013 N.J. Super.LEXIS 115 at 14.
[iv]Id.
[v]Id.
[vi]Id. at 14-15.
[vii]Id. at 15.This award translates to an alimony obligation of $216,000 per year.
[viii]Id.
[ix]335 N.J. Super.465 (App. Div. 2000).
[x]426 N.J. Super.475 (App. Div. 2012).
[xi]Cox, 335 N.J. Super.at 483.
[xii]J.E.V.,426 N.J. Super.at 486 (quoting Cox, 335 N.J. Super at 483).
[xiii]Gnall, 2013 N.J. Super.LEXIS 115 at 27.
[xiv]Id.
[xv]Id. at 28.
[xvi]Id. at 24.
[xvii]Id.at 28.
[xviii]335 N.J. Super.465 (App. Div. 2000).
[xix]Id. at 477-78 (quoting S. No. 54, 6-7, 208th Leg. (N.J. 1998) (statement of Sens. Kavanaugh& Martin) (emphasis added) (citingReport of Commission to Study the law of Divorce, Recommendation 13 (Apr. 18, 1955) [“Divorce Study Commission Report”] ).
[xx]Id. at 482 (quoting Divorce Study Commission Report, supra, at 47) (emphasis added).
[xxi]91 N.J. 510, 517-18(1982).
[xxii]Gnall, 2013 N.J. Super.LEXIS 115 at 29 (citingJ.E.V., 426 N.J. Super. at 485-86 (internal quotation marks and citations omitted).
[xxiii] The word “guidance” should not be interpreted as meaning “guidelines” in the typical sense.
[xxiv]Gordon v. Rozenwald, 380 N.J. Super 55, 65 (App. Div. 2005).
[xxv]J.E.V. quoting Coxsupra note xii.
[xxvi] Footnote number 6 from the Gnall decision is, perhaps, somewhat responsive to this question. The footnote reads, “In May 2011, the United States Census Bureau reported the results of the Survey of Income and Program Participation (SIPP) by the American Community Survey, showing the current average length of a marriage is eight years. See Rose M. Krieder& Renee Ellis, Number, Timing and Duration or Marriages and Divorces, at 15 (2011), available at http://www,census.gov.prot/2011pubs/p70-125.pdf.” Is the appellate court suggesting by inclusion of this footnote that marriages beyond eight years are long term?
[xxvii] The quote from Cox is critical:“In determining whether to award limited duration alimony, a trial judge must consider the same statutory factors considered in any application for permanent alimony, tempered only by the limited duration of the marriage. All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is awarded.” 335 N.J. Super.at483 (emphasis added).
[xxviii]Gnall,2013 N.J. Super. LEXIS 115 at 29 (emphasis added).
[xxix]311 N.J. Super.15 (App.Div. 1998).
[xxx]Cox,335 N.J. Super.at 483.
[xxxi]Gnall,2013 N.J. Super. LEXIS 115 at 29 (emphasis added).
[xxxii]Id.at 50 (emphasis added).
[xxxiii]Id.at 14.
[xxxiv]Id. at 27.
[xxxv]Id. at 29.
[xxxvi] It should be noted that the trial judge did link the cessation of LDA to the children. The alimony award was to terminate on September 1, 2021, a date which was coincident with the youngest child’s anticipated departure for college.
[xxxvii]Gnall, 2013 N.J. Super. LEXIS 115at 30-31.
[xxxviii]J.E.V., 426 N.J. Super. 475.
[xxxix]Gnall, 2013 N.J. Super.LEXIS 115at32.
[xl]Gnall, 2013 N.J. Super. LEXIS 115at 32-34.
[xli]N.J.S.A. 2A:34-23(b).
[xlii]Gnall, 2013 N.J. Super.LEXIS 115at 34.
[xliii]Gordon, 380 N.J. Super.55, 74 (App. Div. 2005).
[xliv]A-1449-03T5, 2005 WL 1562798 (App. Div. July 5, 2005).
[xlv]A-0238-12T4(App. Div. June 17, 2013), http://njlaw.rutgers.edu/collections/courts/appellate/a0238-12.opn.html (last visited September 13, 2013).
[xlvi]Gnall, 2013 N.J. Super.LEXIS 115at 25.
[xlvii]Id. at 40-41.
[xlviii]Wikipedia, http://en.wikipedia.org/wiki/Life_expectancy (last visited September 13, 2013).
[xlix]2013 New Jersey Lawyers Diary and Manual at 412.
[l] This also jives generally with the US Census Bureau statistics. See United Census Bureau, http://www.census.gov/compendia/statab/cats/births_deaths_marriages_divorces/life_expectancy.html (last visited September 13, 2013).