Opinion
DOCKET NO. A-1910-13T2
03-17-2015
AXEL M. LOPEZ, Plaintiff-Respondent, v. DEBORAH LOPEZ, Defendant-Appellant.
August J. Landi, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1222-12B. August J. Landi, attorney for appellant. Respondent has not filed a brief. PER CURIAM
Defendant appeals from the November 8, 2013 order of the Family Part denying her motion to modify the terms of an arbitration award, which granted her limited duration alimony rather than permanent alimony. We affirm.
The arbitration award was later incorporated into the parties' November 12, 2013 final judgment of divorce.
The facts presented to the arbitrator are not in dispute. The parties were married in January 1983. They have two children, both of whom are emancipated. In 2012, plaintiff filed his complaint for divorce. Thus, this was a twenty-nine-year marriage.
Aside from the amount and duration of alimony, the parties were able to resolve the other issues relating to the dissolution of their marriage. The parties agreed to submit the question of alimony to binding arbitration. At the time the arbitrator considered the matter, plaintiff was forty-nine years old, and defendant was forty-seven.
Both parties had worked throughout the marriage and had earned comparable incomes. Plaintiff currently works for the postal service, and his base salary is $54,000 per year. However, he is able to earn overtime and, between 2008 and 2012, his average income was approximately $58,500 per year. Defendant worked as an information technology specialist at a school and, during the same five-year time period, her average annual income was $58,300.
Defendant lost her job just prior to the commencement of the divorce proceedings and was collecting approximately $525 per week in unemployment benefits at the time of the arbitration. However, defendant had enrolled in a technology institute, where she was "seeking a Cisco certification regarding computer networks." Plaintiff told the arbitrator she expected to obtain the certification in July 2013, which would "allow her to work with the primary units being utilized by most big companies." Plaintiff anticipated that approximately "two years" after obtaining the Cisco certification, she would be able to earn approximately $65,000 a year. Defendant sought $200 per week in permanent alimony, based upon her contention that this was a long-term marriage.
In a very detailed written award, the arbitrator carefully reviewed all of the pertinent factors for determining alimony as set forth in N.J.S.A. 2A:34-23(b). He awarded defendant $200 per week in limited duration alimony for a period of two years. The arbitrator explained his decision as follows:
[Defendant] indicated that she sought $200.00 per week as permanent alimony, given the duration of the marriage. Her present circumstances, and the history of earnings, certainly do not give rise to a permanent alimony claim. The testimony and history of earnings confirms that one party was no more dependent upon the other for their respective standard of living. The history of this marriage was two wage earners with comparable earnings. If anything, [defendant] had higher wages for a number of years.Based upon defendant's testimony that, within two years, she would be earning $65,000 per year, the arbitrator concluded that the duration of the alimony award should likewise be limited to two years.
Defendant filed a motion with the Family Part in which she sought to modify the arbitrator's award. She again argued that, because this was a long-term marriage, permanent alimony had to be awarded. Plaintiff opposed the motion.
Following oral argument, Judge Linda Grasso Jones rendered a thorough written decision denying defendant's motion. The judge noted that a trial court may modify an arbitration award if "the rights of the party applying for the modification were prejudiced by the umpire erroneously applying [the] law to the issues and facts presented for alternative resolution." N.J.S.A. 2A:23A-13(e)(4). Citing our Supreme Court's decision in Borough of East Rutherford v. East Rutherford PBA Local 275, 213 N.J. 190, 194 (2013), the judge also observed that "'judicial review of an arbitration award is deferential to an arbitrator's conclusions.'"
Applying these standards, Judge Grasso Jones stated that the duration of the marriage was only one of the thirteen factors set forth in N.J.S.A. 2A:34-23(b) that an arbitrator or court had to consider in determining the amount and duration of alimony. While this was a undisputedly a long-term marriage, the judge found that the parties' incomes had been comparable throughout their marriage and that, within the next two years, defendant would be earning more than plaintiff. The judge also found that defendant had "not provided the court with any information regarding her efforts to secure employment [at the present time] and thus the court has not been presented with information indicating that [defendant's] status as unemployed is anything more than temporary."
Because defendant was not economically dependent upon plaintiff, Judge Grasso Jones concluded that two years of limited duration alimony was appropriate. The judge therefore approved the arbitrator's award and incorporated it into the parties' final judgment of divorce. This appeal followed.
On appeal, defendant again argues that the arbitrator's award of limited duration alimony was a mistake of law and that, based solely upon the length of the parties' marriage, she should have been awarded permanent alimony. Defendant also claims that the judge gave too much deference to the arbitrator's decision in denying her motion to modify the alimony award.
We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Grasso Jones properly determined to sustain the arbitrator's award of two years of limited duration alimony, and affirm substantially for the reasons expressed in her November 8, 2013 written opinion. However, we make the following brief comments.
The scope of our review of the Family Part's order is limited. We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Thus, "'[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
While we owe no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 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." Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare, supra, 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)).
Defendant's arguments concerning the denial of her motion to modify the arbitrator's award of limited duration alimony, in light of the record, reveal nothing so "wide of the mark" that we can conclude that a clear mistake was made. Ibid. As the arbitrator and Judge Grasso Jones found, the parties earned comparable incomes during the marriage and neither was economically dependent upon the other. Although defendant was unemployed at the time of the arbitration, her own testimony indicated that, within two years of receiving her advanced Cisco certification, she would be able to earn $65,000 per year. At that time, she would be earning more than plaintiff.
Under these circumstances, an award of permanent alimony was clearly not appropriate. Therefore, we discern no basis to disturb Judge Grasso Jones' decision to incorporate the arbitrator's award of two years of limited duration alimony into the parties' final judgment of divorce.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION