NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1278-18T3

S.W.,

Plaintiff-Respondent,

v.

G.M.

1

,

Defendant-Appellant.

______________________________

Argued January 29, 2020 — Decided

Before Judges Whipple, Gooden Brown, and Mawla.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Union County, 

Docket No. FM-20-2163-11.

Brian G. Paul argued the cause for appellant 

(Szaferman, Lakind, Blumstein & Blader, PC, 

attorneys; Brian G. Paul, of counsel and on the briefs). 

Jeffrey P. Weinstein argued the cause for respondent 

(Weinstein Lindemann & Weinstein, attorneys; Jeffrey 

P. Weinstein, of counsel and on the brief; Rachel 

Zakarin, on the brief). 

The opinion of the court was delivered by

1

 We use initials to protect the parties' privacy interests. See R. 1:38-3(d).

February 24, 2020

APPROVED FOR PUBLICATION

February 24, 2020

APPELLATE DIVISION
A-1278-18T3 2

MAWLA, J.A.D.

This matter returns after we reversed and remanded portions of a final 

judgment of divorce, directing the trial judge "to articulate, numerically, his 

findings regarding the marital lifestyle" for alimony purposes. S.W. v. G.W., 

No. A-4063-14 (App. Div. Feb. 20, 2018) (slip op. at 39). We also stated "[t]o 

the extent the determination upon remand necessitates a review of the life 

insurance award, the trial judge should also adjust the insurance amount 

plaintiff [S.W.] is required to maintain, if appropriate." Id. at 47.

Following the remand, the trial judge considered written submissions 

from the parties and entered an August 27, 2018 order amending the judgment 

of divorce, increasing defendant G.W.'s alimony without enumerating the 

marital lifestyle. On November 9, 2018, the judge denied defendant's motion 

for reconsideration and reduced the life insurance amount he previously found 

appropriate to secure plaintiff's alimony obligation. Defendant appeals from 

both orders. Because the judge did not numerically calculate the marital 

lifestyle, we reverse and remand.

We set forth the facts adduced at trial in greater detail in our prior 

decision. To summarize, the parties were in a long-term marriage, which 

produced three children, all of whom are emancipated. Both parties are 

college educated. Defendant ceased her employment decades ago following 
A-1278-18T3 3

the birth of the parties' first child. Plaintiff was the sole breadwinner as a 

Senior Managing Director of a boutique restructuring firm, Zolfo Cooper (ZC).

Plaintiff's aggregate compensation was capped at $2,000,000 per year. 

His income ebbed and flowed with ZC's fortunes, exceeding the cap in several 

years and declining far below it in others. We found no abuse of discretion 

and upheld the trial judge's calculation of plaintiff's net income at $1,313,000 

per year by averaging the five years of earnings prior to the complaint. 2

We also upheld the trial judge's description of the parties' lifestyle 

recounting the following:

The parties lived a wealthy lifestyle and did not 

save. At the time of trial, the parties had no 

retirement accounts because [they] had been 

liquidated to fund the marital lifestyle. The parties 

purchased a marital residence in 1986 and a residence 

on Cape Cod in 1998. According to the testimony, the 

judge concluded both residences "were renovated and 

enlarged on an almost constant basis." The 

improvements were financed through mortgage refinancing of both homes.

The parties owned twelve boats during the 

marriage including sailboats and three Boston 

Whalers. Plaintiff's Case Information Statement (CIS) 

nearest the date of complaint set forth monthly 

expenses of $80,853 and defendant's CIS indicated 

2 Contrary to defendant's assertion on this appeal, our conclusion that the trial 

judge did not abuse his discretion in averaging plaintiff's income was not a 

declaration the income determination was immune to modification or a change 

in circumstances. Neither we nor the trial judge made such a statement.
A-1278-18T3 4

those expenses were $92,147 per month. The parties'

children attended private schools, including exclusive 

boarding schools for high school. The children's 

educational and activity fees and expenses were 

funded by plaintiff's income and student loans. The 

family enjoyed the benefits of country club, dinner 

club, and yacht club memberships. Plaintiff's CIS 

articulated a family vacation budget of $60,000 and 

defendant $150,000 per year. Defendant spent 

$100,000 per year on a photography hobby.

Even though defendant estimated the family 

spent between $1,000,000 and $1,500,000 annually,

defendant maintained plaintiff had secreted funds 

from the marriage. The trial judge concluded 

defendant had not proved a dissipation because she 

had admitted all of plaintiff's income was used to pay 

the marital expenses. The judge found "[t]he 

overwhelming evidence is that these parties both lived 

an incredibly profligate lifestyle as evidenced by both 

parties['] [CISs]. . . . In short, it was a budget without 

any apparent restraints."

[S.W., No. A-4063-14 (slip op. at 5-6).]

We recited the trial judge's reasoning for awarding alimony:

The trial judge awarded defendant permanent 

alimony utilizing the version of N.J.S.A. 2A:34-23(b) 

that existed before its amendment in September 

2014. . . . 

The judge determined permanent alimony was 

supported by the majority of the statutory factors. He 

concluded the marriage was of an "extremely long 

duration" and "the parties lived a relatively opulent,

and certainly an upper income lifestyle. Their 

lifestyle consumed the entirety of [plaintiff's] 

income." He found:
A-1278-18T3 5

the goal of "maintaining the lifestyle" is 

more of a goal than a reality. In the case 

of [defendant,] her most recent CIS shows 

that her lifestyle has decreased from 

$92,352 to $27,042 per month. Without 

even beginning to analyze these figures 

for credibility purposes, it is clear that she 

has had to "sacrifice" her prior lifestyle 

during the course of this litigation, and 

will have to do so going forward.

The judge found plaintiff's ability to maintain 

the lifestyle going forward was facilitated by "an 

extremely generous expense account." Thus, the 

judge found plaintiff would "have more flexibility" in 

maintaining the lifestyle than defendant who would be 

dependent on alimony alone. Conversely, the judge 

found the equitable distribution award supported the 

alimony amount awarded because defendant would 

receive at least $750,000 from her share of ZC to 

invest "while [plaintiff] will likely someday have the 

ability to be bought out upon retirement."

The judge found defendant could earn no money 

because she had been "out of the workforce for 

decades." The judge found that plaintiff and his 

partners had reduced their draw from $850,000 to 

$450,000 per year each. He determined plaintiff's 

income fluctuated dramatically because the "bonus 

can vary relatively wildly." However, the judge 

determined there was never a year where plaintiff's 

income fell below $1,000,000.

The judge ordered the alimony payable at a rate 

of $22,000 per month from plaintiff's draw and 

$186,000 per year payable from the bonus for a total 

yearly obligation of $450,000. The judge made 

alimony taxable to defendant and tax deductible to 

plaintiff. The judge ordered plaintiff to maintain life 
A-1278-18T3 6

insurance of $4,000,000 to secure his alimony 

obligation.

[S.W., No. A-4063-14 (slip op. at 18-20).]

We reversed the alimony determination and, as related to the issues now 

raised on this appeal, stated: 

Although the judge's descriptive findings 

regarding the lifestyle were adequate, we are unable to 

correlate his findings regarding the parties'

expenditures with the alimony award. Indeed, the 

judge ordered plaintiff to pay defendant permanent 

alimony of $450,000 per year based on an income of 

$1,313,000, but without a numerical finding of 

lifestyle, we are unable to determine how the alimony 

figure was derived. For these reasons, we reverse the 

alimony award and remand for the trial judge to make 

a numerical finding of the marital lifestyle and then 

explain whether and how the alimony award meets it.

[S.W., No. A-4063-14 (slip op. at 40-41).]

In the August 27, 2018 order, the trial judge increased alimony to 

$36,792 per month, and credited defendant's pendente lite support based on the 

increase. In his November 9, 2018 order the judge reduced plaintiff's life 

insurance obligation from $4 million to $2.2 million.

As to alimony the judge reasoned as follows:

[Defendant] testified that the marital lifestyle was 

approximately $700,000 at one time, and then later 

went to range from one million to one and a half 

million dollars. Defendant's CIS[] dated September 1, 

2011[,] claimed monthly expenditures of $92,147, 

which, according to her, had only decreased to 
A-1278-18T3 7

$90,142 after separation. In contrast, [p]laintiff's CIS, 

filed with the court on January 8, 2013, indicated 

marital lifestyle of $80,853, and post-separation 

expenses for him of $63,540. However, this latter 

number included pendente lite support as well as 

considerable expenses for the children. Moreover, 

[plaintiff] complained that the pre-separation lifestyle 

number was inflated by [defendant] "overspend(ing) 

on extravagancies", giving an example of her spending 

$120,000 on a photography habit.

By 2014, the number submitted by the parties 

had changed significantly. Defendant's CIS, as 

submitted on May 23, 2014, indicated a monthly 

lifestyle amount of $27,042. Plaintiff's CIS, as filed 

with the court on May 21, 2014, indicated an amount 

of $57,579, including the then current pendente lite 

support amount of $22,000, as well as $12,500 for the 

children's school costs. Taking away these two 

amounts would represent a current lifestyle for 

[plaintiff], as of the time of filing, of approximately 

$23,000. However, as previously noted, at the time of 

this court's initial decision, [plaintiff's] lifestyle was 

supported by his expense account at [ZC].

The court, in reviewing [d]efendant's final CIS 

prior to trial, finds same to be credible. The court is 

also satisfied that the expenditures contained therein 

do not represent true numbers of the lifestyle enjoyed 

during the marriage. That is not to say that the court 

accepts [p]laintiff's argument that the court can assign 

a number that represents the actual lifestyle during the 

marriage. As the court has previously found, the 

parties lived a lifestyle which completely subsumed 

[plaintiff's] income. There is simply no way to return 

both parties to that exorbitant lifestyle. However, 

[defendant's] CIS omits numerous spending categories 

that should be accounted for to achieve a lifestyle 

somewhat commensurate with the marital lifestyle.
A-1278-18T3 8

At this point, the judge added back to defendant's current lifestyle 

budget amounts representing some CIS schedule B and C line item expenses 

he determined were reasonable to include in her budget. We do not repeat this 

aspect of the findings because the judge's starting point was defendant's 

current budget, as opposed to the marital lifestyle. At the conclusion of the 

exercise, the judge stated "[b]ased upon the foregoing, the court determines 

defendant's actual monthly need is $36,792."

On reconsideration, the judge reiterated his reasoning regarding the 

alimony and did not elaborate further on the issue of marital lifestyle. 

Regarding life insurance, relying on plaintiff's certification, which defendant 

disputed, the judge explained his reasoning as follows:

And, finally, there's this issue of the . . . 

insurance necessary. Of course, the insurance is 

necessary as a surety against the payment of the 

alimony. [A]pparently [plaintiff] has a three-million 

dollar policy, I'm told in the papers. And the 

argument is that at least . . . [$]2.2 million should be 

guaranteed to [defendant] going forward, and that is 

based on the alimony amount that the [c]ourt has 

calculated spread over a five-year term.

At which point he will presumably, at least 

potentially, reach an age of good faith retirement. 

That . . . argument does resonate with the [c]ourt. I 

did omit it from my decision, so I will order that $2.2 

million be the surety amount through life insurance 

. . . to protect [defendant's] interests . . . . 
A-1278-18T3 9

I.

In reviewing an alimony award, we typically defer to the trial judge's 

findings and reverse only where there is an abuse of discretion. See Overbay 

v. Overbay, 376 N.J. Super. 99, 106 (App. Div. 2005). We likewise review the 

denial of reconsideration for an abuse of discretion. Cummings v. Bahr, 295 

N.J. Super. 374, 389 (App. Div. 1996). However, where the issue is a mistake 

of law, our review is de novo. S.D. v. M.J.R., 415 N.J. Super. 417, 430 (App. 

Div. 2010) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995)).

Defendant argues the trial judge set alimony based on her pendente lite 

budget, which was far below the marital lifestyle. She argues the judge 

disregarded our instructions to find the numerical lifestyle and explain 

whether, and how, the alimony met it. Defendant argues the judge should have 

used the budget for the intact family and then set a post-divorce budget for her. 

She also asserts the Mallamo3credit was erroneous due to the improper 

lifestyle analysis. She argues the judge reduced the life insurance death 

benefit for alimony by improperly speculating plaintiff would retire at the full 

social security age. Defendant urges we exercise original jurisdiction to 

finally decide these issues.

3 Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995).
A-1278-18T3 10

II.

The importance of finding the marital lifestyle cannot be overstated. It 

is at once the fixed foundation upon which alimony is first calculated and the 

fulcrum by which it may be adjusted when there are changed circumstances in 

the years following the initial award.

Alimony is an "economic right that arises out of 

the marital relationship and provides the dependent 

spouse with 'a level of support and standard of living 

generally commensurate with the quality of economic 

life that existed during the marriage.'" Mani v. Mani,

183 N.J. 70, 80 (2005) (quoting Stiffler v. Stiffler, 304 

N.J. Super. 96, 99 (Ch. Div. 1997)). . . . "The basic 

purpose of alimony is the continuation of the standard 

of living enjoyed by the parties prior to their 

separation." Innes v. Innes, 117 N.J. 496, 503 (1990)

(citing Mahoney v. Mahoney, 91 N.J. 488, 501-02 

(1982)). 

[Quinn v. Quinn, 225 N.J. 34, 48 (2016).]

The goal in fixing an 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). "The standard of living during the marriage is the way the 

couple actually lived, whether they resorted to borrowing and parental support,

. . . [or] limited themselves to their earned income," Glass v. Glass, 366 N.J. 

Super. 357, 371 (quoting Hughes v. Hughes, 311 N.J. Super. 15, 34 (App. Div. 
A-1278-18T3 11

1998)), or if they chose to accumulate savings. Lombardi v. Lombardi, 447 

N.J. Super. 26, 36-37 (App. Div. 2016).

In contested divorce actions, once a finding is 

made concerning the standard of living enjoyed by the 

parties during the marriage, the court should review 

the adequacy and reasonableness of the support award 

against this finding. That must be done even in 

situations of reduced circumstances, when the one 

spouse's income, or both spouses' incomes in 

combination, do not permit the divorcing couple to 

live in separate households in a lifestyle reasonably 

comparable to the one they enjoyed while living 

together during the marriage.

[Crews, 164 N.J. at 26.]

In Hughes, the parties spent more than they earned and relied on 

borrowing and parental support to meet the marital lifestyle. 311 N.J. Super. 

at 34. The trial judge discounted these additional funds and determined the 

lifestyle using only the family's earned income, which the judge termed the 

"real" standard of living. Ibid. We held "[t]he judge . . . confused two 

concepts. 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." Ibid.

In many cases, parties live above their means or spend their earnings and 

assets to meet expenses. In such instances, a finding of the marital lifestyle 

must consider what the parties spent during the marriage and not merely offer 
A-1278-18T3 12

a nod to a bygone, unattainable lifestyle. In this case, the trial judge 

overlooked the lessons from Crews and Hughes and our instruction to find, 

numerically, the marital lifestyle. To the extent Crews and Hughes implicitly 

required that marital lifestyle be determined numerically, we now explicitly 

state a finding of marital lifestyle must be made by explaining the 

characteristics of the lifestyle and quantifying it.

In a contested case, a trial judge may calculate the marital lifestyle 

utilizing the testimony, the CISs required by Rule 5:5-2, expert analysis, if it is 

available, and other evidence in the record. The judge is free to accept or 

reject any portion of the marital lifestyle presented by a party or an expert, or 

calculate the lifestyle utilizing any combination of the presentations.

Here, the trial judge disregarded the marital budget altogether and 

instead supplemented defendant's current budget with some expenses she once 

enjoyed during the marriage. This methodology is problematic because it 

ignored the judge's own findings that the marital lifestyle "subsumed" the 

entirety of plaintiff's earnings. By application of this logic, if the judge 

determined the net yearly income was $1,520,2684 or $126,689 per month, the 

4 On remand, the trial judge adjusted his finding of the net yearly income from 

$1,313,000 to $1,520,270. Notably, the record reflects expenditures near the 

adjusted income figure. In evidence was a marital lifestyle analysis plaintiff 

commissioned, reflecting expenditures of $1,600,104.
A-1278-18T3 13

alimony award allotted defendant disposable income of $36,7925and plaintiff 

$89,897 per month without explanation. This was a misapplication of law 

because it ignored Crews and N.J.S.A. 2A:34-23(b)(4), which requires a judge 

consider "[t]he standard of living established in the marriage . . . 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."

To be clear, N.J.S.A. 2A:34-23(b)(4) does not signal the Legislature 

intended income equalization or a formulaic application in alimony cases, even 

where the parties spent the entirety of their income. Had the Legislature 

intended alimony be calculated through use of a formula, there would be no 

need for the statutory requirement that the trial court address all the statutory 

factors. The Legislature declined to adopt a formulaic approach to the 

calculation of alimony. See Assemb. 845, 216th Leg., 2014 Sess. (N.J. 2014) 

(declining to enact legislation computing the duration of alimony based upon a 

set percentage).

5 This figure excluded substantial expense line items enjoyed during the 

marriage according to both parties' CISs, namely, a second home, boats, and 

domestic help. Indeed, plaintiff's CIS nearest the trial date reflected a marital 

lifestyle of $946,548 and defendant's CIS reflected $1,109,988 per year.
A-1278-18T3 14

The portion of the marital budget attributable to a party is likewise not 

subject to a formula. Contained in most marital budgets are expenses, which 

may not be associated with either the alimony payor or payee, including those 

associated with children who have since emancipated or whose expenses are 

met by an asset or a third-party source having no bearing on alimony. There 

are also circumstances where an expense is unrelated to either the payor or the 

payee but is met by that party on behalf of a child. And, as is the case here 

with defendant's photography hobby, there are expenses which only one party 

incurred during the marriage. Therefore, after finding the marital lifestyle, a 

judge must attribute the expenses that pertain to the supported spouse. Only 

then may the judge consider the supported spouse's ability to contribute to his 

or her own expenses and the amount of alimony necessary to meet the 

uncovered sum. Crews, 164 N.J. at 32-33.

For these reasons, we again reverse and remand the alimony computation 

and direct the judge to numerically determine the marital lifestyle and 

apportion it. Because we have remanded the alimony computation, we do not 

address the Mallamo credits, as they too will be adjusted based on the new 

alimony award.

III.
A-1278-18T3 15

The reversal of the alimony award also requires that we reverse and 

remand the life insurance determination for reconsideration. The judge relied 

on N.J.S.A. 2A:34-23(j)(1), which states: "There shall be a rebuttable 

presumption that alimony shall terminate upon the obligor spouse or partner 

attaining full retirement age." The judge determined the $2.2 million coverage 

amount by multiplying the alimony by five years, at which point plaintiff 

would reach the full social security age.

A determination of the proper amount of life insurance coverage for a 

support obligation requires a consideration of many variables. Where a party 

is insurable and able to pay the necessary premiums, a life insurance death 

benefit should neither only meet a beneficiary's bare needs, nor be a windfall. 

In the former case, unexpected changes in circumstances can leave a 

beneficiary with unmet needs, whereas the latter condition exposes a payor's 

estate to obligations he or she never had during the marriage.

In the alimony context, "once the amount of the obligation is established, 

the present value (or more correctly, the continuing present value as the 

obligation decreases) should be determined." Lawrence J. Cutler & Robert J. 

Durst, Life Insurance As a Security Vehicle In Dissolution Cases, 12 J. Am. 

Acad. Matrim. Law 155, 161 (1994). Online present value calculators simplify 
A-1278-18T3 16

the ability to perform this calculation. See, e.g., MSN, Present Value,

Microsoft News, https://www.msn.com/en-us/money/tools/timevalueofmoney/.

The present-day value methodology is appropriate where there is a 

"known future quantity" of an obligation. Ibid. Where the alimony obligation 

is not readily quantifiable because the duration of the obligation is unknown, a 

trial judge may utilize an obligor's life expectancy to determine the duration of 

the obligation if it is reasonable to do so. Life Expectancies for All Races & 

Both Sexes, Pressler & Verniero, Current N.J. Court Rules, Appendix I-A, 

www.gannlaw.com.

Additionally, a reduction in the amount of security as the obligation is 

satisfied is an appropriate means of assuring alimony is secured but not subject 

to a windfall. See Claffey v. Claffey, 360 N.J. Super. 240, 264-65 (App. Div. 

2003) (stating "it is perfectly reasonable to provide for the periodic reduction 

or review of the amount of . . . required security to reflect the diminishing need 

for it as the parties age, or circumstances otherwise change."); see also

Lawrence J. Cutler & Robert J. Durst, Life Insurance As a Security Vehicle In 

Dissolution Cases, 12 J. Am. Acad. Matrim. Law at 161 (endorsing a declining 

death benefit). In some cases, where the obligation has the potential to extend 

beyond an assumed end date because of a change in circumstances, or where a 
A-1278-18T3 17

presumption of termination has been rebutted, it may be appropriate to 

decrease the death benefit in smaller increments or not at all.

In alimony contexts, determining whether to use life expectancy or the 

presumptive retirement age, and a fixed or declining amount of security will 

depend on the circumstances of each case and is a matter of judicial discretion. 

Here, there was no testimony, and only a disputed assertion regarding 

plaintiff's potential retirement at the full social security age. Additionally, 

because the alimony award is of an open duration and may not necessarily 

terminate when plaintiff reaches the full social security age, the methodology 

we have set forth will provide the trial judge with enough flexibility to 

determine the extent and amount of life insurance needed.

IV.

Finally, we decline to exercise original jurisdiction to adjudicate this 

appeal. We "may exercise . . . original jurisdiction as is necessary to the 

complete determination of any matter on review." R. 2:10-5. "In determining 

whether to exercise original jurisdiction, an appellate court not only must 

weigh considerations of efficiency and the public interest that militate in favor 

of bringing a dispute to a conclusion, but also must evaluate whether the 

record is adequate to permit the court to conduct its review." Price v. Himeji,

LLC, 214 N.J. 263, 295 (2013). "Despite the utility of the original-jurisdiction 
A-1278-18T3 18

authority, it is clear that resort thereto by the appellate court is ordinarily 

inappropriate when fact-finding or further fact-finding is necessary in order to 

resolve the matter." Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on 

R. 2:10-5 (2020) (citing Price, 214 N.J. at 294-95).

The trial judge should resolve the remaining disputes because having 

heard the case and considered the testimony he has a "feel of the case." Cesare

v. Cesare, 154 N.J. 394, 411-13 (1998). Further testimony may or may not be 

required to complete the remand. We are confident the trial judge will 

adjudicate the remaining issues fairly and the matter should be left to him.

Reversed and remanded. We do not retain jurisdiction.