A recent case published by the Superior Court gives us some insight into one issue which has thus far evaded appellate review and affirms in principle that alimony remains a secondary remedy and one which is awarded based upon need.
Core facts are:
Husband: 61
Wife: 56
Both employed in health care industry.
Husband’s net: $16,000
Wife’s net: $10,400
(60/40)
25 year marriage
Wife received support $2,200 in support since 2012.
Court awarded 55/45 split in favor of Wife. The gross estate is $7,000,000+ pensions.
Wife asserted that Husband had dissipated $4.4 million of property on an extramarital relationship. She appealed claiming the award did not give sufficient consideration to that fact. The Trial Court opinion acknowledged expenditures outside the purposes of the marriage but concluded, “It is not the role of the Court to recoup expenditures made during the marriage by one party that the other party does not know about or does not agree with or to make a party whole again.” It then added that in effecting an equitable distribution “considerable consideration” to contributions to creation of and dissipation of assets.
It appears that the Trial Court made its distribution with a blanket statement that it had “reviewed all the factors.” The Superior Court concludes that the Trial Court carefully examined the distribution factors and that Wife’s lack of specificity on this issue was dismissed as waived.
On the $4.4 million dissipation issue, Wife presented a list of purchases and expenditures which she considered a dissipation as the month was spent for the benefit of an adulterous relationship. As noted, the Court found that its role is not recoupment of dissipated assets but distribution of what remained. It was sufficient that the Trial Court “considered” monies used by husband during the course of the marriage. Hopefully this meant the monies “misused” during the marriage but that is not the word employed.
Another issue was that of whether alimony was appropriate. The Trial Court had denied it stating that the expenses presented were not reasonable and, even if credited, did not exceed Wife’s income supplemented by the equitable distribution award. The Superior Court, quoting Teodorski v. Teodorski noted that, “Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage as well as the Payor’s ability to pay. Moreover, alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of appropriate employable skill.”
The alimony language is interesting to see in a day when alimony appears to be more guideline than needs driven. The language about the merit of preparing and presenting a dissipation case must be disheartening to many. It appears that while there was a lot of “evidence” presented about dissipation, the Trial Court skated by stating that it heard and considered that evidence but had no responsibility to keep score or formally evaluate the dissipation claim in an economic sense. Those who come to attorneys with stacks of evidence of funds spent on non-marital relationships will need to be warned that such a presentation will be certain in cost but not in outcome. We don’t know how much of the $4.4 million in dissipation claims were solidly established. What we do know is that in a 25 year marriage where the parties depart with husband having a 3:2 advantage in net income, the equitable distribution advantage to wife was roughly $350,000.