This case arose as an appeal from two Superior Court of Justice decisions in 2020.
The parties were married for 27 years prior to separation. Prior to the birth of their two daughters, the wife was a dental hygienist who generally worked full weeks. However, since the birth of their youngest daughter she went back to work only part-time.
After a lengthy trial, the trial judge ordered that the Appellant pay spousal support at the high-end of the Spousal Support Advisory Guidelines. The court considered the appellant’s income and its expected increases and set the respondent’s income at $40,000 and did not account for any later increases she may have. The trial judge also awarded the Respondent full recovery costs in the fixed amount of $180,800.
On this appeal, the Appellant argued that trial judge erred:
- In refusing to impute a higher level of income to the respondent;
- In determining the quantum of spousal support;
- In awarding the respondent full recovery costs
With respect to the first argument, the appellant argued that the trial judge misapprehended evidence surrounding the respondent’s actual income, her working hours, her credentials and her ability to return to working full-time. The Court of Appeal did not agree. The Court emphasized that part-time work was common among dental hygienists and that the respondent was actually earning on the upper end of the hourly wage. The Court also emphasized that the respondent worked part-time throughout the marriage after the children were born and that the appellant actually discouraged her from working longer hours. The Court of Appeal agreed with the trial judge in concluding that the respondent’s rate of employment was consistent with her occupation, her experience and her age and the appellant failed to prove that she was intentionally underemployed.
The Court did not take lightly to the appellant attempting to reargue his case on appeal. While they agreed there might have been some minor discrepancies in the trial judges decision (i.e. the spousal support formula that was used), none constituted a palpable and overriding error such that overturning the trial decision was appropriate.
With respect to the second argument, the appellant attempted to argue that the trial judge erred in awarding the quantum of spousal support because the parties were equal partners in the marriage and the respondent suffered no deprivation to her career. The Court also rejected this ground of appeal citing that the respondent did in fact bear a disproportionate share of the economic consequences of the marriage and that the breakdown of the financial unit, as a result of the deep economic integration of the parties, would have a more serious impact on the respondent.
Finally, the Court of Appeal saw no reason to overturn the trial court’s decision regarding costs given the husband’s behavior and unreasonable position throughout the litigation.
The court ordered that the appeal ought to be dismissed and costs to the respondent were fixed in the amount of $15,000.00.
For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.