Elizabeth Gnall v. James Gnall

74 A.3d 58, 432 N.J. Super. 129

• Court: New Jersey Superior Court Appellate Division
• Decided: August 8, 2013
• Docket: A-3582-10
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3582-10T1

ELIZABETH GNALL, APPROVED FOR PUBLICATION Plaintiff-Appellant/ Cross-Respondent, August 8, 2013

v. APPELLATE DIVISION

JAMES GNALL,

Defendant-Respondent/ Cross-Appellant. _______________________________

Argued January 29, 2013 - Decided August 8, 2013

Before Judges Messano, Lihotz and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2021-08.

Dale E. Console argued the cause for appellant/cross-respondent.

Barry L. Baime argued the cause for respondent/cross-appellant (Budd Larner, PC, attorneys; Mr. Baime, of counsel; Donald P. Jacobs, on the briefs).

The opinion of the court was delivered by

LIHOTZ, J.A.D.

These matrimonial cross-appeals challenge several

provisions in a final judgment of divorce entered following a

seventeen-day trial, including the propriety of awarding limited duration alimony following the parties' fifteen-year marriage.

Plaintiff Elizabeth Gnall attacks the award of limited duration

alimony, suggesting she should have been awarded permanent

alimony. She also argues the judge abused his discretion in

restricting her access to the awarded supplemental child support

in this high income case, and in allocating her equitable

entitlement to defendant's 2007 and 2008 bonus income.

Defendant James Gnall has abandoned his cross-appeal challenging

the amount of alimony, but continues to maintain the child

support calculations were erroneous. He also contends the judge

abused his discretion when ordering him to pay plaintiff's

attorney's fees, and mistakenly set the amount of life insurance

he must obtain to guarantee the ordered support obligations. We

affirm in part and reverse in part.

I.

The facts are taken from the trial record. Our limited

recital is tailored to address only those issues raised on

appeal, rather than all issues addressed at trial.

The parties married on June 5, 1993, and have three

children, who are now ages fourteen, thirteen, and eleven. In

2008, plaintiff filed a complaint and defendant filed a

counterclaim for divorce, each alleging irreconcilable

2 A-3582-10T1 differences. At the time trial commenced on April 8, 2009, both

parties were forty-two years old.

The trial focused on factors necessary to discern the

appropriate nature and amount of alimony. The parties presented

factual and expert testimony regarding plaintiff's past

employment and future employability prospects once she returned

to the workforce; defendant's current and anticipated future

earnings; and the needs of plaintiff and the children. The

parties and their experts testified.

Prior to the parties' marriage, plaintiff received a

bachelor's degree in electrical engineering and, while working

full-time as an engineer for IBM, obtained a master's degree in

computer science. At the time of the marriage, she was employed

as a software programmer and systems analyst for the foreign

exchange sales group of Goldman Sachs, earning approximately

$62,000 per year. She later worked as a senior programmer and

analyst for the Government Securities Clearing Corporation, and

then as Assistant Vice President at Bankers Trust Corporation,

performing computer programing, creating web sites, and

developing web interfaces. In 1999, while pregnant with the

parties' second child, she left her corporate position to join a

friend's start-up company, known as "Visual Tonic." Her salary

in 1997 was $115,048. She earned $94,000 for part of 1998 and

3 A-3582-10T1 $52,202 for part of 1999, the years the two older children were

born. Thereafter, with defendant's assent, she stopped working

outside the home to principally care for the children. The

parties' third child was born in 2002.

At trial, plaintiff explained she believed her programming

skills were "obsolete" and needed to be "totally retrained"

prior to reentry into the rapidly changing computer field.

Moreover, she assumed she would be competing with younger

candidates for available entry-level positions. Consequently,

she was dissuaded from returning to computer programing and,

instead, proposed to pursue a career as a math teacher. She

chose teaching based on a perception there existed a "high

demand" for such professionals and, more important, because her

prospective work schedule would coincide with the children's

school day, thereby minimizing childcare costs and any

disruption to the children's routine. Plaintiff had

investigated the requirements to obtain a teaching certification

and believed she could acquire the necessary training through

part-time study in four years or less, depending upon the

acceptance of previously earned college credits. She initially

intended to obtain the necessary degree from William Paterson

University, which was proximate to her home, but ultimately

enrolled in a three-year online program sponsored by Western

4 A-3582-10T1 Governors University in Utah. Plaintiff estimated the cost to

obtain her degree, excluding books, was approximately $18,610,

representing tuition for six semesters at $2935 per block, plus

a $1000 student teaching fee.

Plaintiff described her health concerns. She underwent

skull-based neurosurgery to remove a mass in November 2006.

Resultant nerve damage caused her to experience facial numbness,

occasional eye pain, and intermittent noises in one ear. She

returns for annual medical reviews of her condition and

undergoes an MRI every year. She attended counseling to address

stress caused by the divorce and the accompanying litigation.

Plaintiff did not believe her medical conditions impeded her

ability to resume employment.

Prior to trial, plaintiff participated in employment

evaluations, during which she expressed her interest was

"raising her children." Elaborating, she said she "had

absolutely no interest . . . and ha[d]n't given much thought to

her career[,]" although she had taken a community college course

providing an overview of veterinary technician careers. She did

not desire that job and suggested to defendant's expert she was

interested in culinary arts. She expressed a similar sentiment

when evaluated by her own expert, stating she might like to work

5 A-3582-10T1 "at some point in the future," but presently was concerned about

the care of the children.

Each party presented expert testimony addressing

plaintiff's employment prospects. Defendant offered the opinion

of David B. Stein, Ph.D., of Vocational Consulting Group, Inc.

Plaintiff then offered the opinion of Charles Kincaid, Ph.D., of

Kincaid Vocational & Rehabilitation Services.

Dr. Stein obtained plaintiff's work history and

educational background, and developed a "worker trade profile"

to identify available jobs matching plaintiff's qualifications

or positions she could reasonably become qualified to perform

based on her past education and experience. Using United States

Department of Labor categories of employment, Dr. Stein opined

plaintiff was "very qualified" for and would be "best suited" to

continue as a computer programmer or computer software engineer

because she had a "very high level of training." He believed

plaintiff could readily "update her skills" by obtaining

necessary retraining, either online or at universities in the

geographic area, in approximately six to twelve weeks, at a cost

of $1,000 to $4,000, depending on the type of skills she

developed.

Dr. Stein observed computer programming and software

engineering positions "exist[ed] in large numbers" and,

6 A-3582-10T1 according to recent projections from the Department of Labor,

were among the occupations expected to grow the fastest over the

upcoming decade. He noted computer programmers earned less than

software engineers. Nationally, positions in these fields

carried an annual salary of between $80,000 and $93,740, with

even higher wages, on average, in Bergen County. Because she

possessed a "very strong academic, as well as job performance

background," Dr. Stein did not view plaintiff's absence from the

job market as having a "preclusive" effect on her ability to

obtain employment. Dr. Stein opined plaintiff 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 or three years, perhaps earn an annual

salary in excess of $115,000.

Plaintiff's expert, Dr. Kincaid, similarly focused on

plaintiff's return to employment in the computer field, even

though he noted she expressed disinterest in such work and

"wanted a change[.]" He disagreed with Dr. Stein's conclusions

regarding plaintiff's employability, as well as the probable

length and cost of retraining, noting hiring trends for computer

programmers did not show anticipated growth over the ensuing

decade. He agreed, however, "faster than average growth" and

"very good prospects" of employment were predicted for computer

7 A-3582-10T1 systems analysts, a position similar to plaintiff's IBM

position, and also for computer software engineers, a field in

which plaintiff's skills and educational background were

compatible, despite her lack of direct experience.

Using the reported requirements and salaries found in local

job advertisements, Dr. Kincaid concluded plaintiff needed to

engage in approximately one to two years of retraining to

upgrade her skills, at a cost of $10,000 to $15,000. He too

discussed plaintiff's possible employment as a software

engineer, for which entry level positions included an estimated

annual salary of $56,764, and a mean salary of $67,763.

Next, defendant testified as to his employment and income.

A certified public accountant, he was working as Chief Financial

Officer for the America Financial Group of Deutsche Bank.

Defendant's annual compensation included his fixed annual salary

and a discretionary bonus paid in February following the close

of the calendar year. His bonus payment included cash and

deferred equity units, or stock options, restricted by a three-

to five-year period of vesting. The following chart sets forth

defendant's remuneration from employment as paid in calendar

years 2005 through 2010, understanding cash bonuses and equity

units were paid in the February following the close of the

actual compensation year on which they were based.

8 A-3582-10T1 YEAR SALARY CASH BONUS EQUITY TOTAL UNITS COMPENSATION 2005 $185,000 $ 325,000 $ 510,000 2006 $185,000 $ 481,100 $ 84,900 $ 751,000 2007 $200,000 $ 718,702 $ 97,298 $1,016,000 2008 $200,000 $ 766,507 $108,493 $1,075,000 2009 $200,000 $1,296,806 $303,194 $1,800,000 2010 $400,000 $ 788,899 $683,326 & $2,100,000 $227,7751

Defendant specifically addressed his 2008 bonus. He stated

the terms of the bonus were negotiated in July 2008, as part of

his promotion, which post-dated plaintiff's complaint for

divorce. The 2008 bonus check (received in February 2009) was

not directly deposited into the parties' joint checking account,

as was the custom with prior bonuses. Rather, defendant

deposited the check into an account titled solely in his name.

Although a portion of the cash bonus may have been used for

pendente lite support, defendant argued plaintiff was not

entitled to an equitable share of the funds because he received

the money as part of his promotion, not as a result of his past

performance.

Evidence of the parties' expenses and the marital lifestyle

was also presented. Both parties marked into evidence their

respective original and revised Case Information Statements

1 In 2010, defendant was awarded an annual incentive award, which vests over three years.

9 A-3582-10T1 (CIS), and plaintiff presented expert testimony from Rufino

Fernandez, Jr., CPA, a forensic accountant.

At the time of trial, the parties' Ridgewood marital home

had been sold, plaintiff and the children were renting a smaller

residence in Ridgewood, and defendant had moved to an apartment

in Manhattan's upper west side. Plaintiff's initial CIS was

based on the costs of the marital home and listed monthly

expenses totaling approximately $35,000. Her budget was revised

to $21,041 per month to reflect her change in residence.2 On the

other hand, defendant reported the family's joint marital

lifestyle while living in Ridgewood was $23,664 per month, of

which he allocated $10,906 for his needs. He too modified his

budget after moving to New York City, claiming monthly

expenditures of $19,803.

During the marriage, plaintiff handled the family's

finances. Defendant's paycheck was directly deposited into the

joint checking account, from which plaintiff paid utilities,

food, and smaller landscaping bills. Similarly, the cash

portion of defendant's bonus was directly deposited into the

joint checking account and disbursed by plaintiff to cover

current and future anticipated expenses. For example, in 2007,

2 In the course of the trial, the marital home was sold, netting $797,411.

10 A-3582-10T1 a portion of the bonus remuneration was placed in savings;

$10,000 was placed in each of the children's uniform gift to

minor's accounts (UGMA); $10,000 was used to reduce the

principal balance of the mortgages; a sum was set aside to

satisfy the resultant tax obligations; and the remainder was

used to pay credit card bills, car expenses, the monthly

mortgages, real estate taxes and insurances, large landscaping

bills, and the like.

Defendant drove a 2008 Infiniti M45 after trading in a 1998

Nissan Maxima. His monthly car payment was $1,039. Plaintiff

drove a 2007 Cadillac Escalade, which was encumbered by a loan

requiring a monthly payment of $1,583. Plaintiff explained

groceries were purchased from Whole Foods or Kings, clothing was

bought from Talbots, Nordstrom, Macy's, Ann Taylor, Victoria's

Secret, Lilly Pulitzer, and the Gap, and defendant's suits were

purchased from Barney's in New York City. The family enjoyed

multiple vacations each year, which had included ski trips to

Aspen and Switzerland, stays at Disney World, ocean front

rentals in the Outer Banks, North Carolina, and shorter trips to

Rhode Island and Boston. Plaintiff insisted the parties always

had money to buy whatever they wanted and never worried; they

always paid their expenses when incurred; and other than the

mortgages and car loans, they had no debts. The children

11 A-3582-10T1 attended public school and were involved in several other

extracurricular activities, such as sports and music lessons.

Each child was engaged in counseling to address issues arising

from their parents' divorce.

Plaintiff's expert, Fernandez, prepared a lifestyle

analysis after interviewing plaintiff and reviewing the historic

Quicken checking expenses, other bank account records, and

investment documentation for the period from 2004 to 2007.

Fernandez admitted plaintiff reviewed his preliminary drafts to

verify the accuracy of his proposed expense allocations, he did

not consult with defendant. In order for plaintiff and the

children to maintain the marital lifestyle, Fernandez opined

she would need $24,252 per month, plus additional monies for

savings and income tax obligations resulting from the alimony

receipts.3

On cross-examination, the accuracy of Fernandez's report

was attacked. Defendant showed Fernandez had artificially

inflated the total needs of plaintiff and the children by:

including miscellaneous expenses that were actually transfers

between accounts, not expenses; including costs expended for the

3 Fernandez determined the amount of the parties' savings over the years was: $58,692 in 2004; $148,184 in 2005; $239,078 in 2006; and $334,651 in 2007.

12 A-3582-10T1 benefit of defendant; and doubling actual vacation costs and a

portion of the cash expenditures.

Defendant's testimony emphasized his financial success was

recent and not representative of the marital lifestyle. He also

argued the parties had recently increased their household

expenditures by using a home equity loan to build an addition to

the home, and by buying newer cars. He asserted these expenses

should not be considered when calculating the standard of living

enjoyed during the marriage.

Reviewing the evidence submitted, the trial judge concluded

the parties enjoyed "an upper middle class" lifestyle that was

more modest than what could be afforded on defendant's more

recent remuneration. He fixed the monthly needs of plaintiff

and the three children at $18,000. After concluding plaintiff

could return to the computer field and earn "between $61,200 and

$94,000," he considered the alimony factors, understanding his

obligation to make statutory findings. He found the parties'

fifteen-year marital relationship was "not short term[.]"

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

13 A-3582-10T1 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."

The judge also rejected an award for rehabilitative

alimony. Even though he acknowledged plaintiff needed

retraining, he found plaintiff could take classes online at her

own pace. The judge also noted plaintiff had failed to work

toward obtaining employment during the two years the case was

pending. Consequently, he imputed $65,000 annual income to her,

effective immediately, and awarded $18,000 per month limited

duration alimony for eleven years. The alimony award was to

terminate on September 1, 2021, coincident with the youngest

child's anticipated departure for college. Further, the award

would not be subject to modification based on plaintiff's future

earnings; rather, modification would be permitted only upon

either party's death or plaintiff's remarriage.

The initial child support calculations made following trial

were challenged in post-judgment motions. At that time, the

judge corrected an error and re-calculated child support under

the guidelines as $997 per week. He added a supplemental

support award of $1600 per month per child, requiring the

maximum gift tax amount (currently, $13,000 per year) be

deposited into the children's UGMA accounts, unless the parties

14 A-3582-10T1 agreed otherwise. Any remaining sums would be paid monthly to

plaintiff to use as she saw fit.

The judge concluded the marital portion of defendant's 2008

bonus (paid in February 2009) was limited to the proportionate

amount represented by the period prior to the filing date of the

complaint, that is January 1, to March 10, 2009. The judge

calculated the total marital portion as $216,700 and concluded,

"at best plaintiff's share would be fifty percent, or $108,300."

However, the judge determined plaintiff's interest was offset by

her past receipt of tax-free pendente lite support and other

lump sum payments made during the two-year litigation.

Defendant was ordered to maintain $3 million in life

insurance during the limited duration alimony term. When

alimony ended, he was permitted to reduce the life insurance to

$1 million until the emancipation of the children. Finally,

defendant was ordered to satisfy the outstanding $105,423.86

balance plaintiff owed to her attorney.

Motions were filed for reconsideration of some

determinations and for clarification of others. As noted, the

amount of child support was adjusted. Also, the judge denied

defendant's cross-motion to reduce the life insurance obligation

to the actual amount of alimony due. Thereafter, plaintiff

15 A-3582-10T1 appealed and defendant cross-appealed from designated provisions

of the judgment.

II.

Our review of a trial court's factual findings is limited.

N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79

(2007) (citation omitted). "The general rule is that findings

by the trial court are binding on appeal when supported by

adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v.

Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We defer

to credibility determinations because a trial court "'hears the

case, sees and observes the witnesses, [and] hears them

testify,'" affording it "'a better perspective than a reviewing

court in evaluating the veracity of witnesses.'" Id. at 412

(quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988) (internal

quotation marks and citations omitted)).

Further, we recognize the "special expertise" of judges in

addressing discretionary matters in the Family Part. Therefore,

if the trial judge's conclusions are evidentially supported, we

are inclined to accept them. Ibid. Consequently, we do "not

disturb the 'factual findings and legal conclusions of the trial

judge unless . . . convinced that they are so manifestly

unsupported by or inconsistent with the competent, relevant and

16 A-3582-10T1 reasonably credible evidence as to offend the interests of

justice.'" Ibid. (internal quotation marks and citations

omitted). "Only when the [trial] court's conclusions are so

'clearly mistaken' or 'wide of the mark'" that the judge was

obviously mistaken, should we interfere and make our own

findings to "ensure that there is not a denial of justice."

N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104

(2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191

N.J. 596, 605 (2007)).

On the other hand, our review of a trial court's legal

conclusions is always plenary. D.W. v. R.W., 212 N.J. 232, 245-

46 (2012) (citing Balsamides v. Protameen Chems., 160 N.J. 352,

372 (1999)). We are not bound by "[a] trial court's

interpretation of the law and the legal consequences that flow

from established facts[,]" which "are not entitled to any

special deference." Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).

III.

A.

Plaintiff's principal challenge on appeal attacks as error

the judge's award of limited duration alimony. Plaintiff

succinctly asserts: "This is a permanent alimony case."

17 A-3582-10T1 "Alimony is a claim arising upon divorce, which is rooted

in the parties' prior [financial] interdependence" created

during their marital relationship. Reese v. Weis, 430 N.J.

Super. 552, 569 (App. Div. 2013). Whether alimony should be

awarded is governed by distinct, objective standards defined by

the Legislature in N.J.S.A. 2A:34-23b. When alimony is

requested, the statute demands the court consider and make

specific findings regarding:

(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 . . . ;

18 A-3582-10T1 (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 . . . ;

(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 . . . ;

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

[N.J.S.A. 2A:34-23b.]

The law compels judges to weigh all of these statutory

factors to determine whether alimony is appropriate and, if so,

ascertain the nature and calculate the amount of alimony needed

by the dependent spouse. See N.J.S.A. 2A:34-23c (requiring the

court to "make specific findings on the evidence" regarding

statutory factors relevant to an alimony award). This process

is designed to account for the unique needs and abilities

affecting each dependent spouse,4 as well as the financially

4 Although we limit the context of our discussion based on the facts of this case to spouses, we note the statute equally applies to partners dissolving their civil unions pursuant to N.J.S.A. 2A:34-2.1.

19 A-3582-10T1 secure spouse called on to continue support after the marriage

ends in divorce. Certainly,

[a] trial court's findings regarding alimony should not be vacated unless the court clearly abused its discretion, failed to consider all of the controlling legal principles, made mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole. Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996). Substantial weight should be given to the judge's observations of the parties' demeanor and credibility. Ibid.

[J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 2012).]

We need not detail the four types of statutorily authorized

alimony and the policy considerations underlying the

Legislature's creation of each distinct category of alimony

awards. Instead, we rely on the comprehensive analyses

contained in two opinions of this court, which have scrupulously

reviewed these topics. See J.E.V., supra, 426 N.J. Super. at

484-89; Cox v. Cox, 335 N.J. Super. 465, 473-76 (App. Div.

2000).

We nevertheless emphasize that judges considering an

alimony request must always keep in mind the primary "purpose of

awarding alimony to a spouse is based on 'an economic right that

arises out of the marital relationship and provides the

dependent spouse with a level of support and standard of living

20 A-3582-10T1 generally commensurate with the quality of economic life that

existed during the marriage.'" Clark v. Clark, 429 N.J. Super.

61, 72-73 (App. Div. 2012) (quoting Mani v. Mani, 183 N.J. 70,

80 (2005) (internal quotation marks and citations omitted)).

The economic dependence created as a result of the marital

relationship is a crucial finding necessary to impose the

ongoing financial entanglement of an alimony award. The law

attributes a party's individual success to have been achieved by

virtue of the joint union — "a shared enterprise, a joint

undertaking, that in many ways . . . is akin to a partnership."

Rothman v. Rothman, 65 N.J. 219, 229 (1974). See also Guglielmo

v. Guglielmo, 253 N.J. Super. 531, 543 (App. Div. 1992) ("We are

entirely satisfied that a spouse who maintains the home while

her husband's career advances should share in the rewards of

their combined efforts." (citations omitted)).

Finally, a judge awarding alimony must methodically

consider all evidence to assure the award is "fit, reasonable

and just" to both parties, N.J.S.A. 2A:34-23, and properly

balances each party's needs, the finite marital resources, and

the parties' desires to commence their separate futures,

N.J.S.A. 2A:34-23c. Parties must not forget, "alimony is

neither a punishment for the payor nor a reward for the payee."

Mani, supra, 183 N.J. at 80 (citations omitted).

21 A-3582-10T1 Here, our focus is not whether alimony should be awarded;

the parties agree alimony is warranted. Instead we are asked

what type of alimony suits the facts presented, and whether a

limited duration award was appropriate.

In examining any alimony request, the court begins its

analysis by considering whether permanent alimony should be

awarded.5 N.J.S.A. 2A:34-23c. Not every dependent spouse should

receive a permanent alimony award. "If the court determines

that an award of permanent alimony is not warranted, the court

shall make specific findings on the evidence setting out the

reasons therefor." Ibid. Only then must the court "make

specific findings" on the applicability of the three remaining

authorized alimony awards — limited duration, rehabilitative,

and reimbursement — to discern which one or any combination of

the three is "warranted by the circumstances of the parties and

the nature of the case." N.J.S.A. 2A:34-23f.

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.

5 "The Legislature's use of the term permanent alimony is a misnomer in the sense that the award is not everlasting[;]" it is subject to modification based on statutory events and other changed circumstances. Reese, supra, 430 N.J. Super. at 575.

22 A-3582-10T1 Briefly, limited duration alimony was designed "to fill a 'void'

identified by the Commission to Study the Law of Divorce."

Gordon v. Rozenwald, 380 N.J. Super. 55, 65 (App. Div. 2005)

(citing Sponsor's Statement to Senate Bill No. 54 (1998); Report

of the Commission to Study the Law of Divorce 35 (Apr. 18,

1995)). The undeniable rationale in adding limited duration

alimony as a remedy was to address a dependent spouse's post-

divorce needs following "'"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."'" J.E.V., supra, 426

N.J. Super. at 485-86 (quoting Cox, supra, 335 N.J. Super. at

477 (quoting S. No. 54, at 6-7, 208th Leg. (N.J. 1998)

(statement of Sens. Kavanaugh & Martin))).6

Limited duration alimony, like permanent alimony, is based primarily on the marital enterprise. It is distinguishable from permanent alimony because the length of the marriage does not warrant permanent support . . . . In order to avoid misuse of limited duration alimony to the disadvantage of supported spouses divorcing after a long- term marriage, the law prohibits award of

6 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 marriage is eight years. See Rose M. Kreider & Renee Ellis, Number, Timing and Duration of Marriages and Divorces, at 15 (2011), available at http://www.census.gov.prot/2011pubs/p70- 125.pdf.

23 A-3582-10T1 limited duration alimony "as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded." N.J.S.A. 2A:34-23c[.]

[Gordon, supra, 380 N.J. Super. at 66.]

Thus, "limited duration alimony represents a form of limited

spousal support for a specified purpose, namely to provide

economic assistance for a restricted period of time," Gonzalez-

Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009)

(citing Gordon, supra, 380 N.J. Super. at 65), by "offer[ing] a

benefit to spouses deserving of alimony for a limited time . . .

[,] who would be unlikely to receive any alimony under [the

prior] statutory scheme," Gordon, supra, 380 N.J. Super. at 65

(internal quotation marks and citations omitted). As such,

[l]imited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate. Those circumstances stand in sharp contrast to marriages of long duration where economic need is also demonstrated. In the former instance, limited duration alimony provides an equitable and proper remedy. In the latter circumstances, permanent alimony is appropriate and an award of limited duration alimony is clearly circumscribed, both by equitable considerations and by statute.

[Cox, supra, 335 N.J. Super. at 476 (emphasis added).]

24 A-3582-10T1 Implicated by plaintiff's argument on appeal in this matter

is whether a marriage lasting three months shy of fifteen years

is the type of "shorter-term marriage[]" for which limited

duration alimony was adopted by the Legislature. In both Cox

and J.E.V., the propriety of the trial judge's award of limited

duration alimony was challenged. In each case, a significant

determining factor was the length of the respective marriage.

Certainly, "[t]he 'defining distinction' between permanent and

limited duration alimony is the length of the marriage."

J.E.V., supra, 426 N.J. Super. at 488 (quoting Cox, supra, 335

N.J. Super. at 483). The Coxes had been married for twenty-two

years, a circumstance clearly removing any possibility of a

limited duration alimony award. Cox, supra, 335 N.J. Super. at

483. In J.E.V., supra, we reviewed the trial judge's rejection

of the plaintiff's request for permanent alimony in favor of an

award of limited duration alimony following an almost ten-year

marriage. 426 N.J. Super. at 480-81.

Assessing the facts here, the trial judge correctly

identified this marriage's length as "not short-term." He

further acknowledged plaintiff would be unable "to maintain the

marital lifestyle without alimony now and probably not for some

time[.]" Nevertheless, he concluded, consideration of an award

of permanent alimony was obviated by the parties' relatively

25 A-3582-10T1 young ages and the fact that they were not married long enough —

commenting theirs was not a twenty-five to thirty-year

relationship. This conclusion was error and must be reversed.

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.

Although "[c]ourts must consider the duration of the

marriage" when fixing alimony, "the length of the marriage and

the proper amount or duration of alimony do not correlate in any

mathematical formula." Lynn v. Lynn, 91 N.J. 510, 517-18

(1982). The Legislature's confining limited duration alimony

awards to those "shorter-term marriages," where the facts make a

permanent alimony award "inappropriate or inapplicable,"

reinforces this concept. J.E.V., supra, 426 N.J. Super. at 485-

26 A-3582-10T1 86 (internal quotation marks and citations omitted) (emphasis

added).

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.

A dependent spouse's age alone also cannot obviate

permanent alimony. See Robertson v. Robertson, 381 N.J. Super.

199, 207-08 (App. Div. 2005) (finding thirty-nine-year-old woman

who surrendered employment opportunities was entitled to

permanent alimony after a twelve-year marriage). Admittedly, a

spouse's youth, along with prior education and skills, may tip

the scale toward a lesser amount of alimony based on the

prospects of viable future employment. But youth is merely one

factor weighed in the alimony calculus.

All facts regarding each unique marital partnership must be

evaluated when considering evidence regarding a claim of

economic dependence warranting long-lasting support. Compliance

27 A-3582-10T1 with the statute is not accomplished by a listing of facts.

Rather, the statute mandates an analysis of the relationship of

these facts, culminating in an assessment of their respective

importance. For example, when considering the applicability of

a permanent alimony award, the length of the marriage and the

parties' ages are finite facts that must be considered.

N.J.S.A. 2A:34-23b(2)(3). However, the statute's enumerated

considerations implicate other aspects of the marital

relationship that also must be weighed. These include factors

such as the duration and cause of the claimed economic

dependence; sacrifices made to assure the non-dependent spouse's

financial success; whether the dependent spouse's return to

full-time employment causes disruption to the needs of the

children; and the nature and extent of the dependent spouse's

predicted financial independence, measured against the non-

dependent spouse's continued ability to provide financial

assistance.

In this matter, facts relevant to plaintiff's request for

permanent alimony are many. A significant relevant fact is her

monthly budget, representing the marital standard of living of

$18,000 per month, or $216,000 per year. This amount was found

to represent an "upper-middle-class" marital standard of living,

which was more modest than current earnings would be able to

28 A-3582-10T1 maintain. Nevertheless it is an amount plaintiff cannot achieve

independent of defendant's support.

Also, for more than two-thirds of the marriage, plaintiff

functioned as the primary caretaker for the children and

homemaker for the family, foregoing any earning capacity and

professional success she may have achieved during this period.

She had not worked since 1999. She initially left employment

largely because the parties decided their two children,

separated in age by only a year, needed her care and attention.

Thereafter, plaintiff was the homemaker and primary caretaker

for the parties' three children.

Under the divorce judgment, defendant's parenting time was

set as every other weekend and, when he was able, dinner on

Wednesdays. Plaintiff, on the other hand, continued to bear the

lion's share of parenting responsibilities for their three minor

children. The parenting time schedule permits defendant to

continue his professional endeavors, substantially free of daily

child rearing concerns, such as assisting with homework,

planning and preparing meals, scheduling activity, and shopping

for the children's needs.

Undoubtedly, plaintiff is intelligent, educated, and

capable of professional employment, but under any conceivable

scenario, her re-employment requires retooling before reentry

29 A-3582-10T1 into the job market. Further, it is unrealistic to assume

plaintiff could generate earnings sufficient to maintain the

determined marital standard of living. Expert testimony,

credited by the judge, estimated plaintiff's return to the

computer field could, after a few years, eventually result in

earnings of $115,000. This is a far cry from the marital

standard of living calculated by the court, necessitating

$216,000 net per year. Thus, the record does not support that

plaintiff would be able to resume working and earn an amount to

sustain herself in a manner approaching that which the parties

created and enjoyed during the marriage.

Throughout the marriage, defendant pursued his career,

uninterrupted by responsibilities of bearing and caring for

children. His intelligence, drive, and abilities have allowed

him to achieve notable professional success, which is

accompanied by significant remuneration. The surge in his

earnings and the accompanying increase in the marital standard

of living began in the latter third of the marriage, with his

employment at Deutsche Bank in 2003. He is fortunate, as there

is no contesting the fact he can, without sacrifice, support

plaintiff and the children, as well as himself in accordance

with the marital standard of living.

30 A-3582-10T1 Each of these considerations must be weighed when

considering plaintiff's request for permanent alimony.

Following our review, we conclude the judge, however,

incorrectly evaluated the evidence, primarily rejecting

permanent alimony because of the misconception that a fifteen-

year marriage would not support a permanent alimony award. This

legal error permeated his overall consideration of other

statutory factors, resulting in an impermissibly conclusory and

cursory analysis. See Carter v. Carter, 318 N.J. Super. 34, 42

(App. Div. 1999) (criticizing trial judge's failure to adhere to

statutory mandate of N.J.S.A. 2A:34-23b).

We conclude the trial judge failed to fully assess all

evidence regarding the fifteen-year marital enterprise,

including plaintiff's inability to achieve something close to

the marital standard of living in the future, without the

benefit of defendant's economic assistance. The failure to

adhere to the statutory obligation to "make specific findings on

the evidence about [all] the above factors[,]" N.J.S.A. 2A:34-

23c, was error. Accordingly, the award of limited duration

alimony is reversed and the matter is remanded for an evaluation

of an award of permanent alimony. See Gotlib v. Gotlib, 399

N.J. Super. 295, 309 (App. Div. 2008) (providing if a "court

31 A-3582-10T1 ignores applicable standards, we are compelled to reverse and

remand for further proceedings").

B.

Plaintiff next argues the judge abused his discretion in

averaging the parties' expenses over several years when

computing the marital lifestyle and plaintiff's needs. She

suggests the judge's calculations "perpetuate the impoverishment

of the dependent spouse." We are not persuaded.

We reject plaintiff's suggestion that the marital standard

of living, as used in N.J.S.A. 2A:34-23b(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.

This record reflects the trial judge's keen awareness of

all aspects of the parties' standard of living. He stated the

parties lived well, but not extravagantly, and spent less than

what defendant's salary suggested could be afforded. He

32 A-3582-10T1 accepted much of plaintiff's claimed budget, though reduced to

disallow certain inflated or inapplicable expenses. The judge's

assessment of the substantial, credible evidence resulted in a

reduction from plaintiff's asserted monthly expenses of $21,041

to the $18,000 budget the judge found to more accurately

reflected expenses.

Further, the judge fully assessed plaintiff's needs in

reaching his findings. The judge understood plaintiff's CIS

budget addressed the needs of plaintiff and the children, and

did not include a reserve for income taxes or savings. We

determine that once the children's needs, satisfied by the basic

and supplemental child support awards, are removed, the monthly

sum awarded sufficiently includes estimated income taxes.

However, we cannot discern from the opinion what findings

and conclusions were drawn regarding plaintiff's requested

savings component, supported by Fernandez's testimony, which

opined on the level of savings by the parties over the last four

years. Indeed, a court may design an award sufficient to permit

the supported spouse to bolster his or her savings to "protect

. . . against the day when alimony payments may cease" due to

the supporting spouse's death or other change in circumstances.

Khalaf v. Khalaf, 58 N.J. 63, 70 (1971) (citation omitted).

33 A-3582-10T1 "Trial judges are under a duty to make findings of fact and

to state reasons in support of their conclusions." Heinl v.

Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (citing R. 1:7-

4). "'Meaningful appellate review is inhibited unless the judge

sets forth the reasons for his or her opinion.'" Strahan v.

Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting

Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). On

remand, we direct the judge to review and make findings

regarding N.J.S.A. 2A:34-23b(8), which requires alimony awards

take into consideration "the opportunity for future acquisitions

of capital assets and income[.]" The court must clearly set

forth factual findings and legal conclusions for the benefit of

the parties and to aid appellate review. See R. 1:7-4(a)

(denoting a trial court's obligation to make findings of fact

and state conclusions of law following hearings resulting in

orders appealable as of right).

C.

Plaintiff argues the court erred in imputing income to her

of $65,000 per year. Further, the judge "unfairly" concluded

she had "done nothing" pendente lite to obtain employment, and

erred in immediately imputing this level of earnings, without

allowing any period for retraining and workforce reentry.

Although we would have preferred more detailed factual findings

34 A-3582-10T1 regarding imputed income, we cannot agree the income imputation

or its amount was erroneous. However, we must remand regarding

the effective date of imputation, as there is no evidence to

support the court's conclusion plaintiff could immediately

commence earning $65,000 per year.

In computing alimony, "[i]ncome may be imputed to a party

who is voluntarily unemployed or underemployed." Golian v.

Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (citation

omitted). "Imputation of income is a discretionary matter not

capable of precise or exact determination but rather requiring a

trial judge to realistically appraise capacity to earn and job

availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App.

Div. 2004) (citation omitted). A trial judge's determination in

this regard will not be disturbed absent an abuse of that

discretion. Robertson, supra, 381 N.J. Super. at 206.

In deciding if income should be imputed, the court must

determine "whether the [spouse] has just cause" for voluntarily

remaining unemployed or underemployed. Caplan v. Caplan, 182

N.J. 250, 268 (2005). In assessing just cause, the court should

assess factors such as the ages of the children and "the reason

and intent for the voluntary underemployment or unemployment[.]"

Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A,

Comment 12, at 2551 (2013).

35 A-3582-10T1 Here, the judge properly performed this analysis. Although

plaintiff had been absent from the workforce for many years, she

retains the obligation to contribute to her support. Both when

setting child support and in reaching a proper alimony award, a

judge must examine not only each party's income, but also his or

her earning ability. See Lynn v. Lynn, 165 N.J. Super. 328,

341-42 (App. Div.) (noting earning capacity or prospective

earnings are proper elements for the court's consideration when

determining the amount of alimony to be paid), certif. denied,

81 N.J. 52 (1979).

Relying on the experts' opinions and plaintiff's past

achievements, education, and experience, the judge concluded

plaintiff's employment as a computer programmer would result in

a salary between $61,200 and $94,000. He chose to impute income

toward the lower end of this range, $65,000, understanding time

had elapsed since plaintiff last performed the tasks of this

job. We conclude the substantial, credible evidence in the

record supports this finding, which will not be disturbed.

Cesare, supra, 154 N.J. at 412.

We also reject as unfounded plaintiff's argument that the

judge should have imputed income based on plaintiff's plans to

become a teacher, rather than a computer programmer. Imputation

must be based on earning capacity, not employment desires.

36 A-3582-10T1 Plaintiff remains free to pursue her dreams as "[a]ny party is

free to retire, take a vow of poverty, write poetry or hawk

roses in an airport, if he or she sees fit." Deegan v. Deegan,

254 N.J. Super. 350, 358-59 (App. Div. 1992). However, she may

not shed her obligations to contribute as best she is able to

her support and that of her children. Ibid.

The record, however, does not support the judge's finding

plaintiff had "voluntarily chosen not to become employed" by

failing to obtain employment or retraining pendente lite. 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

a responsibility 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.

Both employability experts agreed plaintiff needed a period

of retraining before she would be able to secure employment.

Plaintiff had not worked in ten years and her past skills were

stale. Plaintiff's lack of outside employment over this period

in part resulted from the need to care for three children, and

likely was reinforced by defendant's financial success.

37 A-3582-10T1 Beginning in 2007, defendant's total annual compensation topped

$1 million. Also, in 2006, plaintiff underwent brain surgery.

Moreover, the issue of plaintiff's return to work was never

broached pendente lite. The pendente lite record contains no

request by defendant for plaintiff's resumption of employment,

and there are no orders mandating she secure retraining or

allocating funds to enable her to seek training or "prepare

herself to re-enter the workforce," as the trial judge found she

neglected to do.

Overall, we do not view these facts as obviously presenting

a mandate for plaintiff's resumption of employment pendente

lite. Unlike a short-term marital relationship, one where both

parties had continuously worked but one suddenly stopped, or one

where the parties had no children and their needs could not be

sustained solely by one working spouse, the facts here do not

suggest the parties themselves anticipated an immediate

resumption of employment by the dependent spouse. Rather, these

facts strongly suggest the parties held no expectation plaintiff

should immediately return to work.

This determination does not diminish plaintiff's ultimate

responsibility, and we agree the obligation to contribute to her

own and the children's support has been satisfactorily shown.

We conclude, however, the judge abused his discretion by

38 A-3582-10T1 immediately imputing a prospective salary attainable only upon

retraining, as no evidence supports the finding plaintiff

ignored her pendente lite responsibilities to obtain work. This

portion of the judgment is reversed. On remand, the effective

date of imputation must be made based on the evidential record,

after consideration of the time and cost for plaintiff's

retraining.

D.

Next, both parties challenge the amount awarded for child

support: plaintiff argues the award was too low, and defendant

argues it was too high. The lack of meaningful factual findings

requires this issue also be reexamined.

Initially, the court calculated a basic support award,

using the Child Support Guidelines (guidelines), R. 5:6A, of

$501 per week. The judge further ordered a supplemental award

of $25,000 per child per year, from which the maximum allowable

federal gift tax exclusion was to be deposited into each of the

children's existing UGMA for higher education, and the balance

remitted to plaintiff in equal monthly installments.

Following plaintiff's post-judgment motion, an error in the

basic child support calculation was identified and corrected to

$997 per week. The court then adjusted the supplemental award,

reducing it to $1600 per month, or $19,200, presumably per child

39 A-3582-10T1 per year. Plaintiff agrees the amount of the supplemental award

should have been modified after correction to the base

guidelines amount. However, she claims an abuse of discretion

occurred because total support was reduced and the supplemental

support was restricted to require deposit into the children's

UGMA accounts, absent the parties' agreement otherwise.

Plaintiff seeks unrestricted control of the entire supplemental

child support award.

Defendant argues the child support exceeds what is

necessary to meet the family's lifestyle, and the basis for the

amount of the supplemental award was not sufficiently stated,

making it unfounded. Also, he argues, following the correction,

child support was increased by $8392 per year, without

explanation.

Even though a supplemental support amount in addition to

the guideline's base amount is authorized because of the

parties' high level of income, the judge must identify the

nature of the children's supplemental needs to be satisfied by

the supplemental support awarded. See Caplan, supra, 182 N.J.

at 272 (noting that the trial court may take any reasonable

approach in arriving at an appropriate award); Strahan, supra,

402 N.J. Super. at 309-10 (same). We reject claims that the

judge improperly considered the parties' past practice of

40 A-3582-10T1 funding the children's anticipated higher education costs

through annual deposits into the UGMA accounts. See Strahan,

supra, 402 N.J. Super. at 311 (criticizing an above-guidelines

child support award absent evidence of some "marital standard"

regarding "the way the parties treated the children"). We

merely require the court to express those needs, in addition to

the annual past practice of saving for the children's education,

to be satisfied by the supplemental support award.

Following our review, we agree necessary factfinding to

sustain the supplemental support award must be enhanced. The

judge must explain how the amount of the supplemental award was

calculated, and the circumstances considered in restricting an

amount designated for deposit into the UGMA accounts. Finally,

the judge must explain why the total support amount changed,

after it was corrected to comply with the guidelines.7

We generally reject defendant's argument that the basic

child support amount was too high in light of the court's

findings regarding the family's budget. The $18,000 per month

needs did not include the tax obligation associated with

plaintiff's alimony receipt. 26 U.S.C.A. § 71(a) (stating

"[g]ross income includes amounts received as alimony"). We

7 Our calculations align with defendant's, such that the total of all support — basic and supplemental — increased by $8392 per year.

41 A-3582-10T1 reject as specious defendant's contention the total alimony and

child support receipts exceeded plaintiff's budget.

Nevertheless, based on our conclusions regarding the need to

review the alimony award, we note that if the amount of alimony

is adjusted, the amount of basic child support must be

recomputed.

E.

In her final points, plaintiff argues the court abused its

discretion in: (1) awarding her one-half of the remainder of

defendant's 2007 cash bonus paid in 2008, as support, rather

than granting her allocable share as equitable distribution; and

(2) concluding she received her interest in defendant's 2008

bonus as pendent lite support. Plaintiff also urges

modification of the division of the 2009 income tax refunds.

Pendente lite, the motion judge ordered an equal

distribution of the funds remaining from the 2007 cash bonus, in

lieu of immediately calculating defendant's monthly support

obligation. The dispute centered on whether the bonus received

and deposited into the joint checking account was an asset

subject to equitable distribution, for which plaintiff's

entitlement was distinct. Plaintiff maintains allowing use of

the monies to satisfy defendant's pendente lite support

42 A-3582-10T1 obligations was legal error. She argues defendant retained his

base salary and half of his bonus and did not pay support.

Shortly after the gross bonus of $766,507 was received in

February 2008, the complaint for divorce was filed and pendente

lite requests were considered. Because the court divided the

balance of the monies held in the checking account to satisfy

pendente lite support, plaintiff states she exhausted her share

of the asset to meet ongoing household expenses that should have

been provided by defendant's current income. On the other hand,

defendant was not only freed from paying pendente lite support,

but also retained his salary and his share of the asset for his

own use and enjoyment.

Following trial, the judge did not consider this issue,

though it had been reserved for final determination in the

pendente lite order. On remand, the treatment and allocation of

the 2007 bonus paid in February 2008 must be considered.

As for the 2008 bonus, the judge determined the amount

subject to equitable distribution was limited to the period of

the marriage, ending upon the initiation of the divorce action.

The complaint was filed on March 10, 2008, so plaintiff's one-

half interest in the sum earned between January 1, and March 10,

2008, was calculated as $108,300. The judge then concluded,

"whatever amount was due [plaintiff] from the 2008 bonus ha[d]

43 A-3582-10T1 been more than offset by the more than two years of tax[-]free

payments, both lump sum and periodic, [she] ha[d] received

during the pendency of the divorce action[,]" computed to

average approximatly $22,000 per month.

At trial, defendant argued he negotiated his bonus, paid in

February 2009, at the time of his promotion in May 2008 — two

months following plaintiff's filing for divorce. The trial

judge's opinion does not make specific credibility findings, but

the inference to be made from the decision is that the judge

accepted defendant's testimony regarding his negotiation of the

2008 bonus. The record contains no contrary information. On

appeal, plaintiff urges a different treatment of the bonus

funds, baldly asserting the bonus amount resulted from "the

momentum and impact of the marriage." We reject this

proposition as without evidential support, and decline to alter

the judge's findings and conclusions.

Plaintiff lastly argues she held an entitlement to refunds

resulting from the parties' joint 2009 state and federal tax

returns. During the post-judgment reconsideration motions,

defendant sought retention of the refund because plaintiff had

no taxable income. The judge agreed. On appeal, plaintiff

suggests defendant's proofs were insufficient to support the

44 A-3582-10T1 result. We conclude the argument lacks sufficient merit to

warrant discussion in our opinion. R. 2:11-3(e)(1)(E).

F.

In his cross-appeal, defendant attacks the order to pay

plaintiff's counsel fees and challenges the amount of life

insurance he was ordered to provide. We disagree the judge

abused his discretion by ordering defendant to satisfy the

balance of plaintiff's outstanding attorney's fees and costs.

We determine, however, a factual error occurred in the review of

the life insurance issue, necessitating reversal and remand.

1.

Fees in family actions are normally awarded to permit

parties with unequal financial positions to litigate on an equal

footing. A counsel fee award is left to the sound discretion of

the trial court, after consideration of the factors identified

in Rule 5:3-5(c). We will disturb a trial court's determination

of a counsel fee award "only on the rarest occasions, and then

only because of a clear abuse of discretion." Rendine v.

Pantzer, 141 N.J. 292, 317 (1995).

Here, the judge properly and carefully considered all

applicable factors and exercised reasonable discretion in

ordering defendant to pay the balance of plaintiff's

45 A-3582-10T1 outstanding counsel fees. We identify no basis to set aside

that order.

2.

The final issue raised in defendant's cross-appeal focuses

on his obligation to retain life insurance to secure his support

obligations. See N.J.S.A. 2A:34-25 (providing authority for

requiring life insurance as security for an alimony or child

support obligation). The judge denied defendant's motion for

reconsideration seeking to annually reduce the amount of

insurance designed to guarantee alimony, apparently because he

misunderstood the motion. In denying the motion, the judge

stated, "[defendant]'s application that [plaintiff] maintain

life insurance in the amount of $500,000 per each of the three

children until a child is emancipated misses the fact that he is

the dominant income earner and supporting parent."

This issue too is subject to review on remand. First,

defendant's request on reconsideration was not addressed.

Second, an allocation of the total amount of life insurance

between plaintiff and the children must be made. The ambiguous

requirement that plaintiff be named a beneficiary "to the extent

of her interest" cannot stand.

46 A-3582-10T1 IV.

In summary, we reverse the order of limited duration

alimony and remand for consideration of an award of permanent

alimony. Regarding this issue, we affirm the calculations

fixing the marital lifestyle, except with respect to the issue

of savings. The judge must consider plaintiff's budget request

and provide specific findings and conclusions on this issue.

The determination to impute income to plaintiff is affirmed.

However, we reverse as to the commencement of income imputation.

On remand, the judge must consider the time and money necessary

for plaintiff to update her skills to enable her to obtain

employment at the level so imputed. The basic child support

amount is affirmed, subject to recompilation in the event of

changes in the amount of alimony. Also on remand, the judge

must articulate findings and conclusions regarding the nature of

the supplemental child support award and must analyze the basis

for restriction of a substantial portion of that award. We

affirm the determination regarding the 2008 bonus and remand for

findings and conclusions on the distribution of the 2007 bonus.

We affirm the determination regarding the 2009 income tax

refund. On the cross-appeal, we affirm the award of counsel

fees. We remand for clarification of defendant's life insurance

obligations. The judge must consider defendant's request to

47 A-3582-10T1 annually reduce the life insurance component securing his

alimony obligation and specifically allocate the amount of life

insurance between plaintiff and the children.

Affirmed in part, reversed in part, and remanded. We do

not retain jurisdiction.

48 A-3582-10T1