Fault: Has It Re-emerged, Does It Still Exist?

By:  Charles F. Vuotto, Jr., Esq.

and
John Eory, Esq.

2005

            At the time of the preparation of this article, the Supreme Court of the State of New Jersey is poised to hand down its opinion in the case of Mani v. Mani, which was argued on September 13, 2004.  It is expected that the decision by the Supreme Court will reflect much more than a substantive ruling in a particular case.  It is anticipated that our highest court’s pronouncement in Mani will be a reflection of changing social mores and metamorphoses of society’s views of marriage, divorce and life in general.

            The parties in Mani were married for twenty-seven years.  According to Mr. Mani, the parties enjoyed an extravagant lifestyle funded by Mrs. Mani’s gifted assets.  However, this was not always the case.  During the first twenty-one years of the parties’ marriage, they worked together operating a seasonal boardwalk concession business in Seaside Heights.  Mr. Mani had worked in this business for ten years prior to the marriage and was a partner in the business at the time of the marriage.  From Memorial Day until Labor Day the parties worked side-by-side one hundred hours per week, according to Mr. Mani’s petition for certification.  They worked weekends in the fall months and over Christmas.  The remaining months of the year were spent vacationing in Florida and Acapulco.  However, things began to change in 1981 when Mrs. Mani was gifted stock in a family-owned corporation that went public and eventually resulted in investments worth $1.7M.  By the time of trial, her Case Information Statement listed assets totaling $3.1M.  As stated in Mr. Mani’s appellate brief, the parties retired in the early 1990’s (while still in their forties) due to the income available from the investments held by Mrs. Mani.  Mrs. Mani’s assets were valued a little in excess of $3,000,000 and were exempt from equitable distribution.  According to Mr. Mani, Mrs. Mani earned over $200,000 per year net from these assets.

            Mrs. Mani filed for divorce on June 10, 2000.  She alleged extreme cruelty and adultery.[i]  The matter was tried before the Honorable Wendel Daniels, J.S.C. on September 18^th, 19^th and 24^th, 2001.  A written decision was issued on February 14, 2002 and the final judgment was issued on March 20, 2002.  Mr. Mani received $141,000 or 30% of the proceeds from the marital residence and an IRA worth $26,000. According to Mr. Mani’s appellate brief, the court imputed $25,000 in income to him, then age fifty-four, and awarded $31,700 per year in alimony.  Mr. Mani argued that this amount provided him with approximately $39,000 per year in net income which he claimed was inadequate to maintain his budget of $89,000 per year let alone the higher standard of living during the marriage.[ii]

            Mr. Mani filed a notice of appeal on April 26, 2002 and Mrs. Mani cross-appealed on April 30, 2002.

            Mr. Mani argued that the trial court erred in awarding $31,000 in alimony where, following a long-term marriage, Mrs. Mani had over $200,000 in net income and Mr. Mani was unable to maintain a lifestyle even remotely close to the marital standard of living.  Mr. Mani further argued that the trial court erred in awarding him only 30% of the net proceeds from the sale of the marital home.  Lastly, he argued that he was entitled to an award of counsel fees based upon his need, his good faith, and plaintiff’s vastly superior ability to pay.[iii]  The Appellate Court noted that, in the instant case, the Manis’ standard of living was not the result of the parties’ joint efforts, but rather solely due to gifts from Mrs. Mani’s father.  Moreover, the Appellate Court observed that the trial judge found that Mr. Mani’s investment advice was “of little significance and import” and did not contribute to the fortune’s growth.  As to the alimony award, the Appellate Court concluded that several factors emerged with respect to said award.  The Court concluded that Mr. Mani did not appear at all industrious in working to maintain his concept of an appropriate post-marital lifestyle.  The Court observed that Mr. Mani had a sense of entitlement to the largess of Mrs. Mani’s family to maintain his lifestyle.  They further observed that this was not a conventional, long-term marriage case where the non-supporting spouse had foregone an independent livelihood and career for the care and nurture of home, children and family only to end up without skills but destitute in middle age or later.  Thus, the Appellate Court did not adopt the traditional analytical standards to this “exceptional situation.”[iv]

            The Appellate Court went on to note that a trial court may consider the cause of the breakdown of the marriage in setting an alimony award.  The court cited to Lynn v. Lynn, 165 N.J. Super 328, 336 (App. Div.), certif. denied 81 N.J. 52 (1979) (citing Chalmers v. Chalmers, 65 N.J. 186, 193 (1974)) for the proposition that “marital fault is irrelevant to equitable distribution but is not to an award of alimony.”  The Appellate Court further noted that the statute permits a court to consider the proofs in establishing the grounds for divorce, in this case, extreme cruelty and adultery, in determining an alimony award.  NJSA 2A:34-23g.  The Appellate Court further stated that “fault still may be considered by a court when ordering alimony.”  Ruprecht v.Ruprecht 252 N.J. Super 230, 239 (Chancery Division 1991) (citing Lynn 165 N.J. at 334. 

            The Appellate Court found that, pursuant to NJSA 2A:34-23g, although the alimony award may be insufficient for Mr. Mani to maintain his relaxed marital lifestyle, a reduction in his living standard was justified, in part, by the finding that Mrs. Mani established he was adulterous and committed acts of extreme cruelty.  The Appellate Court further commented that, although the permanent alimony award was appropriate,  Mr. Mani’s marital indiscretions warrant consideration in the amount of that award, but in this case do not authorize a complete bar to alimony.  Lynn v Lynn 165 N.J. Super at 336-39.  The Appellate Court concluded as to this issue by stating that the trial judge’s findings were supported by credible evidence in the record as a whole and that they could not conclude that he mistakenly exercised his discretion in awarding Mr. Mani $610 per week.

            Based upon the respective arguments of the parties, the Appellate Court made reference to subsection (g) of NJSA 2A:34-23 which, although not emphasized by the trial court in its decision, states in pertinent part: “in all actions for divorce other than those where judgment is granted solely on the ground of separation, the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.”  NJSA 2A:34-23g.   Although the Court recognized that the non-supporting spouse is generally entitled to alimony which will enable that spouse to maintain the marital standing of living, it commented that the reasons which largely support that policy were absent in the instant case.  For example, such an arrangement protects the interests of a dependent spouse whose non-economic contributions to the marriage, such as raising children and maintaining the marital home, enabled the supporting spouse to work.   

            In light of the foregoing, Mr. Mani filed a Petition for Certification, which was granted on January 21, 2004.  He argued that certification should be granted to resolve the question of the extent to which marital fault remains a viable factor in alimony awards and whether divorcing parties should be obligated to litigate the extent to which each of them contributed to the breakdown of the marriage.  Mr. Mani also argued that certification should be granted to determine whether marital fault should be considered in awarding counsel fees.  Mrs. Mani argued in opposition to Mr. Mani’s petition for certification, stating that statutory criteria for the award of alimony are properly considered by courts in rendering alimony decisions and that the Appellate Division’s sustaining of the trial court’s counsel fee award was not premised upon marital fault.  The New Jersey State Bar Association appeared as amicus curiae and argued that fault should not be a factor to determine alimony except in the most egregious of circumstances.  The State Bar argued that using fault to determine alimony is contrary to the goals of the court and the legislature to streamline the divorce process and minimize its emotional trauma to litigants.  The state bar further argued that using fault to determine alimony will increase the number of divorce trials and result in increased backlogs in the Family Division to the detriment of litigants.  Further, the bar argued that using fault to determine alimony will unnecessarily open a Pandora’s box of complex issues concerning apportionment of fault and its effect on divorce cases.  Lastly, the bar argued that using fault to determine alimony will likely have a disproportionate detrimental impact on women in divorce matters. 

It is curious that there was no real analysis of out-of-state authority by the Appellate Court or litigants.  The authors located a chart (annexed hereto) within Volume 32 (No. 4) of the Family Law Quarterly published by the Family Law Section of the ABA (Winter 1999), which indicates that “marital fault” is a relevant factor in alimony/spousal support awards in 29 states (including the District of Columbia).  In 22 states, “marital fault” is not considered.  Therefore, fault appears to be a factor in alimony/spousal awards in 57% of the 51 jurisdictions in the nation.

In a recent annotation found in the American Law Reports, entitled “Fault as Consideration in Alimony, Spousal Support, or Property Division Awards Pursuant to No-Fault Divorce” by Kristine Cordier Karnezis, J.D. (86 A.L.R. 3^d 1116), the topic of fault in the alimony calculus was discussed.  The subject of this annotation was whether, pursuant to a divorce granted on “No-Fault” grounds, fault or misconduct, nevertheless, could be considered in determining property division, alimony or spousal support.  Although not directly on point with the issue raised in Mani (since the divorce was not granted on “No-Fault” grounds), the annotation does mention that, pursuant to a divorce granted on traditional fault grounds, misconduct of the parties is often a factor considered in determining whether alimony or spousal support should be awarded and in determining the amount allowed. 

Ultimately, we must await the final word by our Supreme Court.  However, if one considers what appears to be the majority view across the nation, fault must be a factor in the alimony calculus (at least to some extent).  The question is not whether it should be considered, but when and to what extent.  The concerns voiced by the State Bar as amicus are valid and must be given great weight. Hopefully, the bench and bar will be given guidance in this regard when the Supreme Court issues their decision.

FAMILY LAW QUARTERLY CHART

Chart 1 –Alimony/Spousal Support Factors