MARYANN MAIKISCH VS. JOSEPH MAIKISCH (FM-19-0080-13, SUSSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4518-16T3
MARYANN MAIKISCH,
Plaintiff-Respondent,
v.
JOSEPH MAIKISCH,
Defendant-Appellant.
________________________
Argued October 1, 2018 – Decided October 25, 2018
Before Judges Gooden Brown and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Sussex County,
Docket No. FM-19-0080-13.
Michael J. Hanifan, Sr., argued the cause for appellant
(Law Office of Michael J. Hanifan, PA, attorneys;
Michael J. Hanifan, Sr., on the briefs).
Peter J. Laemers argued the cause for respondent
(Laemers Murphy & Neggia, LLC, attorneys; Mariann
C. Murphy, on the brief).
PER CURIAM
In this post-judgment matrimonial case, defendant (ex-husband) appeals
from the May 11, 2017 Family Part order awarding plaintiff (ex-wife) limited
duration alimony for a period of ten years. Defendant argues the judge
misinterpreted the parties' marital settlement agreement (MSA); erroneously
awarded alimony to plaintiff despite finding that she was the "supporting
spouse" during the marriage; determined the parties' marital lifestyle without
properly factoring in the parties' accumulation of significant debt to support that
lifestyle while married and the depletion of that source of income at the end of
the marriage; failed "to consider the intent of the alimony statute" and "the
controlling legal [principles]" governing alimony; and made factual findings
that are not supported by "sufficient credible evidence" in the record. Based on
our review of the record, we disagree and affirm.
We glean the following facts from the record. The parties were married
in 1993. Two children were born of the marriage, a girl in 1999 and a boy in
2003. The parties divorced in 2013. Their Dual Judgment of Divorce
incorporated a MSA, which included the following provision regarding alimony:
[Defendant] represents that he is not as of the signing
of this agreement employed. [Plaintiff] is currently
waiving alimony from [defendant]. This waiver of
alimony will continue for a period of five (5) calendar
years. In the event that [defendant's] income exceeds
[plaintiff's] income by twenty percent (20%) during any
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year within this five (5) year period, [plaintiff] shall
have the right to apply to the court for an award of
alimony (either durational or permanent, as the court
may decide).
Pursuant to the MSA, the parties also agreed to "an equal shared parenting plan
. . . ." In executing the MSA, both parties confirmed that they were represented
by counsel and warranted that they were "freely and voluntarily" signing the
MSA "without duress" or coercion. They acknowledged having a full
understanding of the legal consequences of the terms and provisions contained
in the MSA and that the provisions were "fair, adequate and satisfactory as to
each of them[.]"
Relying on the alimony provision of the MSA, on May 19, 2015, plaintiff
filed a motion seeking alimony. The parties stipulated that the pre-conditions
contained in the MSA were met by virtue of the fact that in 2014, less than five
years after the divorce, defendant was hired by Atlantic Health Systems and
earned $114,000 annually, which exceeded plaintiff's income by more than
twenty percent. However, defendant asserted that while plaintiff had "met the
threshold . . . to seek alimony[,]" the court was obligated to determine whether
she had "a right to alimony" because "[t]here was no [marital] lifestyle agreed
upon" by the parties. In response, Judge Michael Paul Wright agreed that the
"threshold" for plaintiff to seek alimony "ha[d] been hurdled by the plain
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language of [the MSA]." The judge continued that in the absence of any
showing that the MSA was "inequitable or unconscionable," its alimony
provision would be "enforced." Thus, the judge indicated he would "hear
testimony" and determine "how much alimony" should be awarded, if any, and
"what duration."
Thereafter, the judge conducted a multi-day plenary hearing over non-
consecutive days, during which both parties testified about their respective
educational backgrounds, employment and earnings history as well as their
lifestyle both during and after the marriage. Plaintiff, then fifty-years-old, had
a bachelor's degree in sociology. She testified that in 2003, she earned $67,000
annually as the Director of Volunteers and Patient Relations at Englewood
Hospital. However, after the birth of their second child, she quit her job and
became "a stay-at-home mom" at defendant's request. She re-joined the
workforce in 2006, earning $40,000 annually as a secretary with the American
Red Cross. She admitted that from 2008 to 2012, defendant made considerably
less than she did, experiencing intermittent periods of unemployment and
underemployment. She agreed that of the $235,185 earned by the parties during
that timeframe, she significantly out-earned defendant.
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Nonetheless, plaintiff described the parties' marital lifestyle as "upper
middle class." According to plaintiff, from 2003 until she filed for divorce in
2012, the parties lived in a three-bedroom home on about an acre of land. The
home had a deck, hot tub and finished basement. From 2009 until the divorce
filing, they went on vacation every year, took cruises, and made "frequent
weekend trips to Maine . . . [and] Rhode Island." The family golfed together,
"went out to dinner . . . several times a week[,]" ordered clothing from upscale
stores, and drove luxury cars. They even funded defendant's "political
campaign" when "[h]e ran for freeholder." Plaintiff testified that the parties
used a $200,000 home equity line of credit (HELOC) from 2005 to 2012 to
support their lifestyle, which she characterized as "a lifestyle that was above
their means."
According to plaintiff, her current lifestyle was significantly diminished.
Although plaintiff currently earned $64,400 annually, she resided in a rented
one-bedroom condo that required her to sleep on a pull-out couch when her
children stayed with her. Her vacation trips were minimal and at her parents'
expense and her entertainment consisted of visiting family members' homes.
She no longer had cable or played golf, drove a leased Hyundai Sonata and
struggled every year to afford Christmas and birthday gifts for the children. She
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bought food at "a food bank" on a couple of occasions, rarely ate out at
restaurants, and now shopped for clothing at Kohls and Walmart. Although she
started a 401(k) with her employer, she had only saved a couple thousand dollars
to date and had no other savings, pensions or assets.
Contrary to plaintiff's testimony, defendant believed the parties' marital
lifestyle prior to the divorce was much less affluent than plaintiff described.
Defendant, then fifty-three-years old, was a high school graduate, attended
HVAC school, and had licenses in a variety of areas, including a boiler
operator's license, a real estate license, and a license to sell life insurance and
investments. According to defendant, in 2005, when he was laid off from Home
Delivery America where he earned about $90,000 annually, he used the HELOC
to supplement his income and accrued $120,000 in credit card debt 1 to maintain
their lifestyle. Although he acknowledged that the family made frequent out-
of-state trips, he testified that they had only taken two cruises, rather than three
as plaintiff had testified, and denied frequenting restaurants as plaintiff had
claimed. Defendant also denied asking plaintiff to leave her job after their
second child was born and indicated that he wanted her to return to work.
1
The credit card debt was discharged when the parties jointly filed a bankruptcy
petition in 2013.
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Following the hearing, on May 11, 2017, Judge Wright entered an order
awarding plaintiff alimony in the amount of $299 per week for a period of ten
years, retroactive to the date of plaintiff's motion. In his written statement of
reasons spanning fifteen pages, the judge meticulously detailed his findings of
fact and conclusions of law. In determining the amount and type of alimony,
the judge methodically and thoroughly addressed all the applicable factors set
forth in N.J.S.A. 2A:34-23(b),2 and considered the parties' case information
2
These factors include:
(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,
with neither party having a greater entitlement to that
standard of living than the other;
(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;
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statements (CIS) as well as their testimony about their lifestyle, earnings and
financial needs.
(8) The time and expense necessary to acquire
sufficient education or training to enable the party
seeking maintenance to find appropriate employment,
the availability of the training and employment, and the
opportunity for future acquisitions of capital assets and
income;
(9) The history of the financial or non-financial
contributions to the marriage or civil union by each
party including contributions to the care and education
of the children and interruption of personal careers or
educational opportunities;
(10) The equitable distribution of property ordered and
any payouts on equitable distribution, directly or
indirectly, out of current income, to the extent this
consideration is reasonable, just and fair;
(11) The income available to either party through
investment of any assets held by that party;
(12) The tax treatment and consequences to both parties
of any alimony award, including the designation of all
or a portion of the payment as a non-taxable payment;
(13) The nature, amount, and length of pendente lite
support paid, if any; and
(14) Any other factors which the court may deem
relevant.
[N.J.S.A. 2A:34-23(b).]
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Judge Wright considered the divergence in the parties' characterization of
their marital lifestyle as well as the HELOC and credit card debt utilized to
support the lifestyle. The judge noted that "[t]he proofs [were] uncontroverted
that the previous marital lifestyle was a sham" and that "[n]either party could
afford the lifestyle they maintained" as it "was funded on debt[.]" The judge
considered the parties' employment and earning histories, including the fact that
defendant "ha[d] recently become unemployed." However, the judge noted that
"temporary unemployment [was] less relevant to the [c]ourt's analysis than . . .
[d]efendant's immediate past ability to earn a specific salary." Further, the judge
utilized defendant's earning ability to calculate his alimony obligation rather
than the "sham" marital lifestyle because "[u]sing the prior marital lifestyle to
calculate alimony [would be] misleading."
The judge also considered the conflicting testimony about "which party
insisted on [plaintiff's] absence from the workforce" after the birth of their
second child. The judge explained that the "distinction [was] immaterial,"
"given the fact that the absence was for a relatively short period of time ," and
"[p]laintiff reentered the work force approximately ten (10) years ago" without
any apparent adverse impact on "her earnings." Judge Wright acknowledged
that plaintiff "historically earned more income during the [twenty-year]
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marriage" and "was the supporting spouse for several years near the end of the
marriage." However, according to the judge,
[T]he provision of the MSA which gives rise to the
award of alimony clearly indicates that the parties
envisioned [d]efendant's earning capacity to be higher
than [p]laintiff[']s. Thus, an award of alimony is
appropriate despite the fact [p]laintiff was the
supporting spouse for a period of time. In all, however,
permanent alimony is not appropriate for a spouse that
may now need support but at one time was the
"breadwinner."
Noting that "the clear intent of the MSA" was for defendant to pay
plaintiff alimony "should his income exceed hers by 20%" and "that [d]efendant
was on pace to earn approximately $123,000 . . . as compared to [p]laintiff's
$63,000" annual salary, the judge reasoned:
Given the income differential, [p]laintiff is entitled to
an award that will allow her to live a lifestyle at least
somewhat comparable to [the lifestyle] that she knew
during the marriage. That lifestyle may have been a
sham middle to upper middle[-]class living but it was
the lifestyle nonetheless. This is especially true where
[d]efendant/obligor alone has the funds to live above
that of the marital lifestyle based upon the recent
income capacity he has demonstrated. However, the
[c]ourt is wary of the former marital standard of living
because that was funded on debt and the term of
alimony must take into consideration all the above
factors. The [c]ourt finds that the parties['] ages are
particularly relevant in this regard. The parties are
nearing retirement age. Permanent alimony would not
be appropriate given the fact that [d]efendant is also
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entitled to have his obligation established such that he
may reasonably prepare for retirement. Plaintiff,
although recently contributing toward her retirement
account[s], must not be made to choose between
affording a residence in which she does not have to
sleep on the couch when her children visit, and
contribution toward her own retirement funds.
Judge Wright concluded that the award would "hopefully accomplish the goal
of the MSA and allow [p]laintiff to live a lifestyle reasonably comparable to the
marital lifestyle without unduly burdening [d]efendant's right to that same
lifestyle[,]" and "aid [p]laintiff in finding more suitable housing
accommodations . . . to house herself and the children simultaneously when they
visit with her - which [was] half the time." This appeal followed.
The scope of our review of a Family Part order is limited. We accord
substantial deference to the Family Part because of that court's special expertise
in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Thus, while we
owe no special deference to the trial judge's legal conclusions, Manalapan
Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995), we
"should 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 reasonably credible
evidence as to offend the interests of justice" or when
we determine the court has palpably abused its
discretion.
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[Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div.
2010) (quoting Cesare, 154 N.J. at 412).]
We will only reverse the judge's decision when it is necessary to "'ensure that
there is not a denial of justice' because the family court's 'conclusions are []
'clearly mistaken' or 'wide of the mark.'" Id. at 48 (alteration in original)
(quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)).
This standard applies equally to the Family Part's decisions regarding
alimony. In awarding alimony, the judge must consider the thirteen factors
enumerated in N.J.S.A. 2A:34-23(b), along with any other factors deemed
relevant. "[T]he goal of a proper alimony award is to assist the supported spouse
in achieving a lifestyle that is reasonably comparable to the one enjoyed while
living with the supporting spouse during the marriage." Crews v. Crews, 164
N.J. 11, 16 (2000). It is "critical" and "essential" to "[i]dentify[] the marital
standard of living at the time of the original divorce decree . . . regardless of
whether the original support award was entered as part of a consensual
agreement or of a contested divorce judgment." Id. at 25.
"The standard of living during the marriage is the way the couple actually
lived, whether they resorted to borrowing and parental support, or if they limited
themselves to their earned income." Hughes v. Hughes, 311 N.J. Super. 15, 34
(App. Div. 1998). In determining the marital standard of living or lifestyle, the
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trial court looks at various elements including "the marital residence, vacation
home, cars owned or leased, typical travel and vacations each year, schools,
special lessons, and camps for [the] children, entertainment (such as theater,
concerts, dining out), household help, and other personal services." Weishaus
v. Weishaus, 360 N.J. Super. 281, 290-91 (App. Div. 2003), rev'd in part on
other grounds, 180 N.J. 131 (2004). In making the determination, the court
should also consider the payor's earnings and ability to support the payee , see
Crews, 164 N.J. at 27, because the ultimate determination must be based not
only on the amounts expended, but also what is equitable. Glass v. Glass, 366
N.J. Super. 357, 372 (App. Div. 2004).
Oftentimes, as here, MSAs impact the trial judge's alimony award. In
interpreting MSAs, although the law "vests 'judges greater discretion when
interpreting such agreements[,]'" Quinn v. Quinn, 225 N.J. 34, 45-46 (2016),
"courts should discern and implement the intentions of the parties" and not
"rewrite or revise an agreement when the intent of the parties is clear." Id. at
45. "Thus, when the intent of the parties is plain and the language is clear and
unambiguous, a court must enforce the agreement as written, unless doing so
would lead to an absurd result[,]" ibid., or there is a "need to reform a settlement
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agreement due to 'unconscionability, fraud, or overreaching in the negotiations
of the settlement.'" Id. at 47 (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).
We will not disturb an alimony award on appeal if the trial judge's
conclusions are consistent with the law and not "manifestly unreasonable,
arbitrary, or clearly contrary to reason or to other evidence, or the result of whim
or caprice." Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001). The
question is whether the trial judge's factual findings are supported by "adequate,
substantial, credible evidence" in the record and whether the judge's conclusions
are in accordance with the governing principles. Ibid.; accord Gnall v. Gnall,
222 N.J. 414, 428 (2015). Applying these principles, contrary to defendant's
arguments, the judge's alimony award reveals nothing "so wide of the mark" that
we could reasonably conclude a clear mistake was made. Rather, we are
satisfied that Judge Wright's factual findings are supported by adequate,
substantial and credible evidence in the record and that his legal conclusions are
unassailable. Accordingly, we affirm substantially for the reasons set forth in
his comprehensive statement of reasons.
Affirmed.
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