Opinion
DOCKET NO. A-3795-13T4
11-02-2015
SRIVIDHYA HARI, Plaintiff-Appellant, v. HARI SOMASKANTHAN, Defendant-Respondent.
Theodore Sliwinski, attorney for appellant. Deborah A. Rose, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1687-13. Theodore Sliwinski, attorney for appellant. Deborah A. Rose, attorney for respondent. PER CURIAM
Plaintiff Srividhya Hari ("the ex-wife") appeals as insufficient the limited duration alimony ("LDA") award the Family Part granted after this divorce trial.
The record reflects that both plaintiff and defendant Hari Somaskanthan ("the ex-husband") were college educated abroad. They were married for sixteen years and resided in New Jersey. They have two unemancipated children who now live with the ex-wife.
For most of the marriage, the ex-wife stayed home raising the children, but she eventually began working. At the time of trial she was earning $56,832 annually, although she was classified as a temporary worker. The ex-husband was earning $160,471, with annual bonuses from his employer.
The ex-wife was represented at trial by counsel, having previously been represented at earlier stages of the litigation by other attorneys and also represented herself for a while. Both parties testified, and the ex-wife's attorney cross-examined the husband.
On the last day of trial after both parties rested, the ex-wife's present appellate counsel appeared as her co-counsel. He moved to reopen her case to present more testimony from her and move more records into evidence. The judge declined to let her re-open her case. However, the judge did permit the ex-wife's Case Information Statement ("CIS") detailing more fully her financial information to be admitted into evidence, doing so over the objection of the ex-husband's counsel.
After sifting through the proofs, the trial judge, Hon. John A. Jorgensen, granted the ex-wife LDA in the sum of $616 weekly for eight years, plus 25% of the ex-husband's annual bonuses. Applying the child support guidelines, the judge also ordered the ex-husband to pay $217 weekly in child support for the two children. The judge evenly split between the parties the equity in the marital home and in a separate condominium that they had bought together.
Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at www.Gannlaw.com (2016).
The judge denied the ex-wife's post-trial motion to reopen her case. He also denied her request for counsel fees.
The ex-wife now appeals, procedurally arguing that the trial court abused its discretion in declining to allow her to reopen her case after the parties had rested, and substantively arguing that the court misapplied the statutory alimony factors and issued an insufficient alimony award. The ex-husband has not cross-appealed. After the appeal was filed, Judge Jorgensen issued a written amplification of his reasons on May 21, 2014.
We first address appellant's procedural arguments concerning her belated request to reopen her case. We recognize that a trial court is reposed with the discretion to allow additional evidence, in the interest of justice, after the parties have rested their cases. See, e.g., State v. Wolf, 44 N.J. 176, 191 (1965) (observing that a trial court has the discretion to allow additional testimony in a civil or criminal case, such as where a critical witness in a murder case wished to recant testimony the day that jury deliberations began); cf. In re Dale, 134 N.J. Eq. 502, 504 (E. & A. 1944) (observing in a probate case that additional testimony should not be taken after the conclusion of the trial but that the court has the discretion to allow it).
The trial judge did not abuse his discretion here in declining to reopen the proofs in this case after both parties had testified and both sides had rested. Although the ex-wife's testimony on direct examination was not lengthy, she did attest to the core facts concerning the parties' relationship, their employment, and marital lifestyle. Additional facts were brought to light during the ex-husband's testimony, including the cross-examination of him conducted by the ex-wife's attorney. We are not persuaded that the further exhibits proffered by the ex-wife after both sides had rested would have fundamentally changed the alimony analysis. Moreover, the judge ameliorated any alleged prejudice by indulgently admitting, over objection, and considering the ex-wife's CIS and the expenses that it listed. We will not second-guess the judge's decision to disallow the case from, in essence, being tried a second time once co-counsel arrived.
We reject the ex-wife's contention that the trial court's denial of her post-trial motion for reconsideration or a new trial amounted to a "miscarriage of justice." Motions for a new trial, reconsideration of an order, or relief from a judgment are all within the sound discretion of the trial court, and "will not be disturbed absent an abuse of discretion." Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993) (applying an abuse of discretion standard for a motion under R. 4:50-1); Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (stating that reconsideration under R. 4:49-2 is "a matter within the sound discretion of the Court").
In particular, under Rule 4:49-1(a), the trial judge may grant a new trial and take additional testimony, amend or make new findings of fact, and direct the entry of a new judgment only if "it clearly and convincingly appears that there was a miscarriage of justice under the law." We are unpersuaded that this high bar is surmounted here, especially since, as we shall now discuss, the terms of the LDA awarded to the ex-wife appear to be within the range of fair calibration and are also consistent with the applicable statutory standards.
Limited duration alimony, also known as term alimony, consists of alimony payable for a specific period of time. The Legislature has expressly authorized LDA as a permitted form of alimony, along with "rehabilitative" and "reimbursement" alimony. N.J.S.A. 2A:34-23(c)(1) to (3) (2013). The statute obligates a court to consider whether alimony is appropriate "for any or all" of those three categories. Ibid.
We do not apply retroactively here the Legislature's recent amendments to the alimony statute, N.J.S.A. 2A:34-23 (2014), and, in fact, neither party has advocated that we do so. --------
Limited duration alimony is generally appropriate in cases, such as this one, involving marriages of intermediate or shorter length, in which the spouse seeking support has an economic need, but also possesses "the skills and education necessary to return to the workforce" at some time in the immediate future. Gordon v. Rozenwald, 380 N.J. Super. 55, 65-66 (App. Div. 2005) (citing Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000)).
The duration and amount of the LDA award is governed by various statutory factors set forth at N.J.S.A. 2A:34-23(b), including:
(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, 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; and
(13) Any other factors which the court may deem relevant.
Our scope of review of a Family Part judge's calibration of alimony after a divorce trial is limited. We will not overturn an award of alimony unless we conclude that the trial 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 presented in the record after considering the proofs as a whole." J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 2012) (citing Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996)); see also Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998) (instructing that alimony awards should be affirmed if supported by substantial credible evidence in the record as a whole).
Applying this well-established limited scope of review, we sustain the trial court's LDA award. The judge found the ex-wife's claims of a high-end marital lifestyle were not credible, and that the parties' lifestyle was actually in the moderate range. The judge also fairly evaluated the respective earning capacities of these well-educated and skilled parties. The ex-wife complains that the LDA level does not provide enough resources for her and the children, but she does not adequately take into account the fact that the court separately awarded child support to her under the Guidelines. Notably, she did not appeal the child support award.
The balance of arguments raised on appeal lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We have no legal or equitable reason to set aside the final judgment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION