Gnall, After All
Thoughts - Meditations - Words with Friends
When is a hand functionally less than a hand? Fewer working fingers? Jean "Django" Reinhardt is often regarded as one of the greatest guitar players of all time. He was the first important European jazz musician who made major contributions to the development of the guitar genre. After his third and fourth fingers were paralyzed when he suffered burns in a fire, Reinhardt used only the index and middle fingers of his left hand on his solos. Any less of a musician?
How many fingers have to go before a hand ceases to function as a hand? Should there be a "bright line" rule to achieve this functional anatomical analysis automatically? On the other hand (ugh), is it possible for a hand with extra fingers not to function as a hand at all?
The rote learning repetitive reliance on bright line rules is neither illustrative of competent advocacy nor of responsible adjudication. It is instead an example of non-professional clerical work, requiring a background in second-grade arithmetic. Horrifyingly enough, methods such as these have fallen into relatively common use. These various "rule-of-thumb" approaches, premised upon the fundamentally flawed presupposition that simplicity settles cases, are little more than fallacious appeals to popular wisdom that fail to provide a sufficient basis for determining alimony. Simplicity does not settle cases of its own accord; creative expertise does.
Simplicity straightjackets the creative process of solution generation, leaving significantly fewer alternatives to pick from. Overly simplistic analyses of alimony aspects tends far more toward crude horse trading than applied socio-economic science. It lends itself to participation in a zero-sum game, where there must by definition be a winner and a loser. Instead, we should be guided by the counsel of Albert Einstein, who said, "Make everything as simple as possible, but not simpler."
No "factor" should ever be allowed to ascend through careless across-the-board practice to the level of a "standard," or bright line heuristic. The following excerpt from Connor v. Connor, 254 N.J. Super. 591, 604 (App. Div. 1992) is instructive:
"It goes without saying that the final alimony order in this case should take into consideration the real facts and circumstances of each party's financial situation including actual income, expenses, support from other sources and potential earning capacity. Income should not be imputed where real figures are available. No rule of thumb or percentage should be applied. Di Tolvo v. Di Tolvo, 131 N.J. Super. 72, 328 A.2d 625 (App.Div.1974). Such mechanisms have no place in judicial decisionmaking."
See also Lynn v. Lynn, 91 N.J. 510, 518 (1982): "However, the length of the marriage and the proper amount or duration of alimony do not correlate in any mathematical formula."
One premise that was posited - or perhaps only suggested arguedo - by the Court in Gnall, was that, in order to achieve an equitable result, there must be a uniform application of the law.
Like New Jersey, most States' statutory schemes involve multiple factors. According to the American Bar Association, there are approximately 54 unique factors used across the 50 State jurisdictions in America. The majority of American jurisdictions, including New Jersey, have amended their statutes in a gradual fashion over many years.
The various statutory factors affecting alimony in other States, including New Jersey, are not ranked, weighted or prioritized. In virtually all statutory alimony schemes, there is no direction from State Legislatures as to a method of interaction among the differing factors. Consequently, massive bodies of case law exist interpreting statutory factors in nearly every American jurisdiction, particularly since utilization of case law is required to interpret the fundamental expressed in the statutory factors.
Literally dozens of significant examples exist of conflicting case law authority. Like New Jersey, the reported decisions of other jurisdictions are of limited utility in interpreting statutory factors. Due to the inherent nature of appellate review - where the focus is upon the existence of significant, credible evidence or upon an abuse of discretion - appellate opinions typically contain only a summary of material facts, and do not include the complete factual record for purposes of detailed comparisons to pending matters. It is therefore possible only to approximate the factual similarities between instant and published cases, since appellate-level courts do not exist to create absolute clarity as to the operation of any given statute.
Decisions that vary in unpredictable ways from judge to judge tend to be perceived as unfair. This unpredictability often has a pathological effect on the settlement process by which most divorces are handled. See the sources discussed in Ira Mark Ellman, Paul M. Kurtz & Katharine T. Bartlett, Family Law: Cases, Text, Problems 845-848 (3rd ed. 1998) (unpredictability both impedes settlement and creates a legal climate that burdens the spouse who is more risk averse). Empirical support for the view that predictability in legal rules facilitates settlement has been found in a Dutch study. John Griffiths, What Do Dutch Lawyers Actually Do in Divorce Cases?, 20 Law & Soc'y Rev. 135 (1986).
Thus, while uniform application of the law has its allure, as it promotes predictability, predictability in and of itself is not the Philosopher's Stone.
As Rod Serling used to say following the introductory vignettes on The Twilight Zone, "Submitted for your approval..." Quaere: Are the ends of justice and delivery of equitable results truly informed or served when a solitary statutory factor involving duration is taken and measured from a purely quantitative standpoint, or must duration, instead, be considered qualitatively as well, within the gestalt of the entire statutory schema? To lead a bit, isn't it true that two marriages or civil unions that are identical in length to the second when measured purely quantitatively, could be worlds apart when also measured qualitatively within the totality of the circumstances? It's okay to answer "Yes."
Next observation: Granularity refers to the level of detail of a process model and affects the kind of guidance, explanation and trace that can be provided. Coarse granularity restricts these to a rather limited level of detail, whereas fine granularity provides more detailed capability. The nature of granularity needed is dependent on the situation at hand.
Fine granularity requires greater analysis, thought and expenditure of time. While the details inherent to fine-grained process models can provide users of any system, including ours, with instructions and important execution dependencies, such as the dependencies between people, coarse-grained process descriptions provide users with the ability to relatively quickly gain a working understanding and command of essential principles of applicable law, as well as a practical overview of time, budget, and resource planning frameworks within which their case management and decisions should occur.
All and all, while some may argue for fine-grained model utilization in every case - and frequently advance this misguided belief as a weapon to denigrate and devalue decisions properly based upon coarser models in hindsight - most traditional process models employ coarse-grained descriptions. As will be discussed later, the fact of the matter is that, ideally, process models should provide for a wide range of granularity.
An excellent example of the proper application of a definitively coarse-grained model involves the presumption against custody set forth in New Jersey's Prevention of Domestic Violence Act. Pursuant to N.J.S. 2C: 25-29 (b)(11), a court entering a temporary custody order in the context of a domestic violence proceeding is required to presume that a child's best interests will be served by an award of custody to the non-abusive parent. As explained in R.K. v. F.K., 437 N.J. Super. 58, 64 (App. Div. 2014), this presumption "plays an important role in the initial DV proceedings, which must be conducted expeditiously, and in which custody is only one of the many issues."
Importantly, the presumption in favor of a custody award to the non-abusive parent in a domestic violence proceeding applies only to temporary orders entered in the context of that proceeding. Final custody determinations (for example, those made in the context of an ensuing divorce proceeding) are to be based strictly on the significantly more fine-grained factors set forth in N.J.S. 9:2-4, "which addresses domestic violence as one of several factors requiring consideration." R.K. v. F.K., 437 N.J. Super. at 65.
How about pendente lite determinations? Should they merit the same level of granularity as end-of-trial conclusions of law do? Certainly not. It is difficult to imagine a Trial Judge's PL determinations getting overturned due to a failure to make Carter-type findings. Aren't the standards even granularly different? N.J.S. 2A:34-23 b. currently states: "In all actions brought for divorce, dissolution of a civil union, divorce from bed and board, legal separation from a partner in a civil union couple or nullity the court may award one or more of the following types of alimony: open durational alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In so doing the court shall consider, but not be limited to, the following factors." Fourteen are now listed, including a new factor (13); "The nature, amount, and length of pendente lite support paid, if any."
Since open durational alimony, rehabilitative alimony, limited duration alimony or reimbursement alimony are not ordered pendente lite, one can credibly argue that a different standard should be employed during that period. N.J.S. 2A:34-23 Alimony, maintenance, in pertinent part, remains the same, post-amendment: "Pending any matrimonial action or action for dissolution of a civil union brought in this State or elsewhere, or after judgment of divorce or dissolution or maintenance, whether obtained in this State or elsewhere, the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just..." This is clearly a less granular analysis than a conclusory determination would demand, and is subject to finer-grain Mallamo adjustment down the line when more details are known.
The Trial Judge in Gnall correctly and meticulously (see where I'm going?) mentioned each and every statutory factor, precisely as required, and related each factor to his findings of relevant facts; meeting the mandated level of granularity. Happily, one member of the Court candidly observed that there was disconnect between what the Trial Court did and how the Appellate Division characterized it. Moving on, the argument advanced that, because there wasn't something more - in terms of applying the factual findings to the law beyond drawing a relevant logical connection between facts and factors - the Trial Judge's analysis was somehow faulty and should therefore remain reversed, should respectfully be rejected by the Court, and rejected sharply.
The argument was a purely conceptual one, since no specific example of what the application of the law to the factual findings beyond what the Trial Judge took great care to do was ever advanced. It was a lot like listening to a net opinion. As the questioning developed, I was sitting on the edge of my seat, hoping the Court would challenge for such an example. At one point, the Court asked how judges usually do this. Sadly, the tougher question never came. Arguments such as these, in my opinion, are either premised on the unwarranted demand for finer granularity then is required (or even optimal), or (and I am not even suggesting that this was the case here) utter sophistry.
As mentioned earlier, process models should, ideally, provide a wide range of granularity. Within our system of justice, this is provided in part by the individual interests, talents and perspectives of Jurists and advocates at every level, as well as the tiers of review and functional roles and gatekeeping assigned to each. Necessarily fine granularity is characteristic of legal principles or precepts, derived over time through a sufficient enumeration of instances. This must be distinguished from the proper use of coarser granularity models, typically applied to most trial level decision-making. Even these decisions - apart from those of first impression - are informed by precedents which are largely, if not ideally, developed through relatively fine-grained models and analysis.
One last observation (I promise). Establishing specific terms for short and long marriages is difficult because of the many possible variables. For example, suppose we were dealing with a marriage or civil union that was five years in length. Assume further that there was a great disparity in income levels and earning potential, and an extraordinary level of economic dependency? More than one court has, in fact, grappled with the question of economic dependency in shorter marriages, leading to the conclusion that dependency is more important than the duration of the marriage. See, e.g., Wass v. Wass, 311 N.J. Super. 624 (Ch. Div. 1998). In Lynn v. Lynn, 91 N.J. 510, 517-18 (1982), for example, the New Jersey Supreme Court noted that the length of the marriage and the proper amount or duration of alimony do not correlate in any mathematical formula. See also, McGee v. McGee, 277 N.J. Super. 1, 14 (1994).
Where the circumstances of the parties diverge greatly at the end of a relatively short marriage, the more fortunate spouse may fairly be called upon to accept responsibility for the other's misfortune - the fate of their shared enterprise. Still, where other factors are present, a short marriage may lead simply to a short period of rehabilitative alimony. See, e.g., Mishlen v. Mishlen, 305 N.J.Super. 643 (1997), in which a divorce judgment awarding the wife six months of rehabilitative alimony of $125 per week was held not to be an abuse of the trial court's discretion. The wife was 34 years old and attending community college at the time of divorce, and she had been employed before marriage and before the birth of the first child. The marriage was relatively short, both children were in school full time, and the husband had an obligation to pay for the children's insurance coverage, unreimbursed medical expenses, and private school education in addition to the child support award.
I would like to suggest that, in analyzing the "duration of the marriage or civil union" factor, the devil is not in the details, but rather in the labeling. When the word "duration" is taken purely for its quantitative meaning, it can aptly be defined as the length of time something continues or exists. But in the context of a multi-factor, interrelated, living statute involving real lives and actual families, the word "duration" becomes one that more usefully describes a process and perhaps, a process of multi-dimensional transformation. Purely quantitative labeling, therefore, has the added shortcoming of freezing a dynamic concept through nominalization, which, in linguistics, is the use of a verb, an adjective, or an adverb as the head of a noun phrase.
Labeling also has the potential for creating unwanted controversy, while leaving plenty of room to drift into all sorts of logical fallacies. For instance, one common error in reasoning is variously known as the false choice fallacy, the false dichotomy, the bifurcation fallacy, the either-or fallacy, the fallacy of negation, and the false dilemma. This fallacy, at least in its most common form of an artificial dichotomy, centers around argumentation that uses black-or-white thinking, or a misleadingly simple choice of two or more, but still too few options, one of which must be selected as true to the negation, discredit or rejection of the other. Respectfully, this is precisely what happens when one suggests that marriages or civil unions are either those of long duration, or not, then using that determination as a "Yes or No" gatekeeper.
Enough, already. Kindly consider the following.
When trial judges deal with the durational factor by labeling it as a short, intermediate or long-term marriage or civil union, in my opinion, they may as well be talking about sex, politics or religion in certain difficult contexts. These conclusory designations are arguably unnecessary, needlessly controversial, and vulnerable to distracting, facile arguments in rebuttal.
Although the durational factor is number two in line within the collection of fourteen, I would respectfully suggest that it might be quite useful for trial judges to save it for the tail end of their factual findings and legal conclusions, in order to address it more easily within the totality of the already discussed circumstances.
So much for my Saturday morning. Happy lawyering! Curt
-
Postscript: A few weeks ago, while attending an Early Settlement, the panelists informed the presenting attorneys that current income information was irrelevant to deciding how much alimony was to be paid, since it was not representative of the marital lifestyle. In making their recommendations, the panel announced that, now that the new alimony statute has been signed into law, they can finally do what they've always done, and divide by three. L
-------------------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
-------------------------------------------
Original Message:
Sent: 11-12-2014 07:20
From: Jenny Berse
Subject: Gnall is scheduled for oral argument today
FYI - Gnall is scheduled for oral argument at 1 p.m. at the Supreme Court today and can be watched via Webcast
A-52-13 Gnall v. Gnall (073321)
Was it appropriate for the Appellate Division to reverse the trial court's award of limited duration alimony and to remand for consideration of permanent alimony under the circumstances of this case, which included a marriage of fifteen years?
-------------------------------------------
Jenny Berse Esq.
Cranford NJ
(855) FAM-LAW1
-------------------------------------------