August 3, 2015
This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.
NJ Supreme Court: No Bright-line Duration Rule for Permanent Alimony Awards
In a unanimous decision, the New Jersey Supreme Court held that there is no bright-line rule that the duration of the marriage determines an award of permanent alimony. In the opinion written by Justice Faustino J. Fernandez-Vina, the Supreme Court reiterated that a determination of a request for alimony must weigh all of the factors set forth in N.J.S.A. 2A:34-23(b), and that duration is only one such factor. Gnall v. Gnall, No. A-52-13 (N.J. Sup. Ct. July 29, 2015). The decision reversed the Appellate Division’s published opinion, which the Supreme Court found erroneously created a bright-line rule that a 15-year marriage requires an award of permanent alimony. See Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013). The NJSBA filed an amicus curiae brief in the Supreme Court matter, written by Brian M. Schwartz, Derek M. Freed and Brian G. Paul, and argued by NJSBA past president Paris P. Eliades. The NJSBA had urged the Court to confirm, as it did, that all of the statutory factors need to be considered in an alimony determination.
The Gnalls were married three months shy of 15 years, and had three children. At the time they were married, Ms. Gnall worked as a computer programmer, having earned a master’s degree in computer science. Sometime in 1999, the couple agreed that she would stop working to take care of the children full-time. Mr. Gnall, a certified public accountant and chief financial officer of Deutsche Bank’s Finance Division in America, was the sole wage earner since 1999. At the time of the divorce, he made in excess of $1 million annually.
After considering all of the factors enumerated in N.J.S.A. 34-23(b), the trial court held that permanent alimony was not appropriate due to the relatively young age of the parties, their educational levels and duration of the marriage. At issue was the trial court’s preclusion of a permanent alimony award to Ms. Gnall after the judge’s determination that the marriage “certainly was not short-term, but neither [was it] a twenty-five to thirty-year marriage.” Gnall, A-52-13, slip op. at 2-3. The trial court judge ultimately determined that the couple “was not married long enough for [Mr. Gnall] to be held responsible for [Ms. Gnall’s] ability to maintain their marital lifestyle.” Id. Ms. Gnall was awarded limited duration alimony in the amount of $18,000 per month for a period of 11 years.
Ms. Gnall appealed the decision, challenging, among other things, the alimony award determination. After commenting that there is no formulaic calculation of compensation based on the number of years, the Appellate Division reversed and remanded the case for an evaluation of an award of permanent alimony, stating specifically that it does “not hesitate to declare that a fifteen-year marriage is not short-term, a conclusion which precludes consideration of an award of limited duration alimony.” Gnall, 432 N.J. Super. at 152-153. Mr. Gnall appealed this decision, arguing the Appellate Division improperly created a bright-line rule regarding the length of marriage in an alimony case.
In urging the Supreme Court to affirm the Appellate Division, the NJSBA argued that the Appellate Division did not intend to create a bright-line rule, rather it remanded the matter for an “evaluation of an award of permanent alimony.” The NJSBA further stated that if the Appellate Division did intend to create a bright-line rule, the Supreme Court should hold otherwise.
The Supreme Court rejected the notion of a bright-line rule, as urged by the NJSBA, but nevertheless reversed the Appellate Division’s decision and remanded the matter to the trial court “for findings of fact and a new determination of alimony.” Gnall, No. A-52-13, slip op. 26. The Supreme Court’s holding focuses on this language in its opinion, finding that “the Appellate Division inadvertently created a bright-line rule for distinguishing between short-term and long-term marriage as it pertains to an award of permanent alimony.” Gnall, A-52-13, slip op. at 25. “By not clarifying that the statement reflected only the fifteen-year marriage in this particular case, the Appellate Division made a generally applicable declaration.” Id.
Under the current law, whether alimony should be awarded is governed by the standards enumerated in N.J.S.A. 2A-34-23(b). Only after a determination that an award of permanent alimony is not awarded, coupled with specific findings and reasoning based on the evidence, can the court make specific findings on the applicability of any of the other three types of alimony—limited duration, rehabilitative, or reimbursement alimony.
In 2014, the Legislature signed into law significant amendments to the alimony statute to, among other things, replace the term “permanent alimony” with the term “open durational alimony,” as well as a determination that any alimony award where there was a marriage or civil union of less than 20 years in duration shall not exceed the length of the marriage or civil union except in exceptional circumstances. N.J.S.A. 2A:34-23(c). The NJSBA worked closely with the Legislature in drafting these amendments to create a revised process that was fair and predictable, but still preserved judicial discretion to ensure each case is examined based on its individual merits. The Supreme Court noted that this provision was not applicable in this case.
Supreme Court Upholds Constitutionality of Recall Statute
Affirming the Appellate Division’s decision, the Supreme Court ruled that a statute recalling retired judges to the bench is not unconstitutional, rather it is consistent with both the language and the history of the modern New Jersey Constitution. State v. Buckner, Docket No. A-22-14 (N.J. Sup. Ct. July 30, 2015). Chief Justice Stuart Rabner authored the majority opinion, lone dissenter Justice Barry Albin wrote the dissenting opinion and Justice Anne M. Patterson did not participate. The NJSBA participated as amicus curiae on the question of a remedy should the court find N.J.S.A. 43:6A-13(b) (recall statute) unconstitutional, and took no position on the merits of the underlying matter. The brief was written by Sandra T. Ayres, Robert B. Hille, John W. Kaveney and Thomas Prol. It was argued by Prol.
At issue was the constitutionality of the 42-year-old recall statute that permits recall of retired judges over the age of 70 for temporary service in the superior court. Buckner challenged the recall statute as unconstitutional, citing the New Jersey Constitution’s provisions that justices and judges “shall be retired upon reaching” their 70th birthday. N.J. Const. art. VI, §6, ¶3 (judicial article). Buckner’s criminal trial was presided over by a 73-year-old judge who had been recalled for temporary service by the Supreme Court, and who had earlier denied the defendant’s pre-trial motions for disqualification and/or recusal from the disqualification motion on these same grounds. State v. Buckner, 437 N.J. Super. 8, 96 A.3d 261, 263 (App. Div. 2014). Buckner’s argument relied mainly on Article XI of the New Jersey Constitution (schedule article), which the Supreme Court noted dealt exclusively with the incumbent judges who held their judicial offices at the adoption of the 1947 constitution. For this reason, the Supreme Court dismissed Buckner’s argument as misplaced.
After a comprehensive historical framework of the development of the current constitutional provision related to judicial retirements, the majority in the Appellate Division held that the constitutional provision left to the Legislature the ability to grant the Supreme Court authority to recall retired judges, who were appointed in accordance with the constitution, for temporary assignment. Id., at 268-69. A strong dissent by Judge Jonathan N. Harris argued that the recall statute “(1) offends the plain ‘shall be retired upon attaining the age of 70 years’ language of the Judicial Retirement paragraph, and (2) irreparably rends the Constitution’s fabric of separation of powers by legislatively authorizing the Supreme Court – rather than the Governor – to make the selection decisions to implement recalls…” Id. at 281.
Justice Rabner eschewed the Appellate Division’s dissenting arguments, noting the lack of any language of the judicial article that would define “retire” to be incompatible with temporary recall service. Buckner, A-22-14, slip op. 11. “The difference in language [between the judicial and schedule articles] reveals that the framers knew how to bar Recall but chose not to do so in the Judicial Article.” Id., p. 24. The majority also dismissed Buckner’s argument that the recall statute was an encroachment on the Executive Branch’s power to appoint judges, an argument raised by the minority in the Appellate Division, but not before noting that this argument was not preserved on appeal. “Recall does not limit or encroach on the Executive’s power.” Id., p. 53.
Justice Albin’s dissent called to task the Executive and Legislative branches for their failure to fill judicial vacancies, which has averaged 10 percent. Recognizing the public policy implications in recalling judges, Justice Albin nevertheless held that the recall statute is unconstitutional. Pointing to the absence of any language about recall in the New Jersey Constitution, Justice Albin opined that “[t]he Legislature cannot arrogate to itself a power denied to it by the Constitution, and likewise it cannot gift to the Supreme Court a power inconsistent with the Constitution.” Id., dissent, p. 3. Rather, Justice Albin would have compelled the Legislature “to pass a conforming amendment, to increase the number of judgeship positions, and/or to fill the multitude of judicial vacancies.” Id.
The NJSBA addressed the impact that a finding of unconstitutionality would have on the court system. “[J]udicial vacancies are currently having an adverse effect on the judicial process, and, thus, the rights of litigants to have their cases decided in a timely and appropriate manner,” wrote the NJSBA in its amicus brief.
Justice Albin’s dissent echoed the NJSBA’s concerns. He closed his dissent as follows:
“As of July 1, 2015, there were forty-six vacancies among the 443 Superior Court judgeships authorized by statute, N.J.S.A. 2B:2-1, with seventy-two judges serving on recall, fifty-five of whom are above the mandatory age of retirement. By failing to timely fill the many judicial vacancies, the political branches have created the urgent need for and the judiciary’s dependency on the recall system. However effective the recall system may be, politically created exigencies and pragmatic considerations cannot excuse the use of unconstitutional means to achieve a desirable end.” Id., p. 23.