Clark v. Clark, A-1147-11T1; Appellate Division; opinion by Lihotz, J.A.D.; decided and approved for publication October 19, 2012. Before Judges Messano, Lihotz and Kennedy. On appeal from the Chancery Division, Family Part, Hunterdon County, FM-10-435-08. [Sat below: Judge Mawla.] DDS No. 20-2-8025 [23 pp.]

The parties’ 28-year marriage ended in divorce. They have four children. Plaintiff, the residential custodial parent, lives in the former marital home with the three youngest unemancipated children, and defendant lives in Florida.

Plaintiff appeals from a provision contained in the final judgment of divorce requiring him to pay $600 per month as alimony to defendant. At trial, plaintiff proved defendant secreted $345,690 from their closely held business during their marriage. Consequently, the trial judge ordered defendant to repay half the amount taken, in satisfaction of plaintiff’s equitable distribution interest. The trial judge declined to offset these obligations, and an execution to secure payment of alimony was entered against plaintiff’s wages.

Plaintiff appeals from the alimony award, arguing defendant’s egregious conduct extinguishes any obligation to pay alimony. In the alternative, he asserts his monthly alimony obligation must be reduced because of the economic impact of defendant’s marital fault, and he should be permitted to reduce his alimony payments by the debt defendant owes him. Finally, plaintiff challenges the amount representing his interest in the former business asset awarded as equitable distribution, and another limited aspect of the trial court’s equitable distribution award regarding his repayment resulting from his alienation of a marital asset.

Held: The award of alimony is reversed where defendant’s long-term scheme to embezzle more than $345,000 from the joint marital business led to plaintiff’s fault-based claim for divorce, caused more than a mere economic impact on the marital assets, and demonstrated the rare case of egregious fault justifying consideration of whether defendant’s marital misconduct obviated an award of alimony.

In most cases marital fault is irrelevant to a trial court’s alimony calculation. However, in Mani v. Mani, the Supreme Court acknowledged two “narrow” exceptions to this general principle: “cases in which the fault has affected the parties’ economic life and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.”

In this case, defendant’s illicit conduct “affected the parties’ economic life,” impacting the amount of any alimony awarded, a consideration omitted by the trial judge. The question is whether defendant’s marital misconduct rises to the level of “egregious fault,” which could preclude any award of alimony.

Egregious fault, a term of art, requires proof transcending extended or “public acts of marital indiscretion.” Here, defendant’s conduct transcends mere “economic impact,” as she not only betrayed the sanctity of the marital vows of trust, but also kicked their economic security in the teeth by secretly draining cash from the business. Defendant conceived and carried out a long-term scheme to embezzle the cash receipts from the business, which deprived plaintiff of the immediate fruits of his daily labors and impinged on the viability of the joint business asset and the family’s future security. Her actions smack of criminality and demonstrate a willful and serious violation of societal norms.

Marital fault that merely affects the economic status quo of the parties might include things such as gambling, excessive spending, waste of marital assets, or other acts of bad judgment. This is not “egregious fault.” However, when marital misconduct, even though economically based, evinces significant, willful wrongdoing, designed to fraudulently and purposefully deprive one’s spouse of the economic benefits of the marital partnership, the acts transcend fault affecting the economic status quo, and, in fact, violate societal norms, and equate to “egregious fault.” In analyzing such instances, trial courts must consider the totality of the facts and circumstances presented and determine whether the conduct warrants severing all economic bonds between the parties by precluding an alimony award.

Here, when considering defendant’s claim for alimony, the trial judge made a thorough and detailed analysis of each of the statutory economic considerations required by N.J.S.A. 2A:34-23(b), without regard to whether defendant’s economic improprieties were so outrageous as to warrant additional relief as directed by the Supreme Court’s decision in Mani v. Mani. This omission is fatal. Consequently, the appellate panel vacates the alimony award set forth in the final judgment of divorce and remands to the trial court for further consideration in light of this opinion.

On remand, the court must assess defendant’s conduct in light of the standard here articulated to discern whether egregious fault has been demonstrated. If so, the court must then consider whether the conduct obviates the propriety of an award of alimony. Finally, if the court concludes alimony remains warranted, the trial judge must assess the impact of defendant’s conduct prior to fixing an amount of alimony. The trial court’s determination could include an offset against the alimony award by the amount stolen by defendant and now due to plaintiff. Equity demands the trial court consider defendant’s dishonest, illegitimate conduct, and its impact on the past and future economic security of plaintiff and the children. The panel affirms the remaining provisions of the final judgment of divorce.

For appellant — Matheu D. Nunn (Einhorn, Harris, Ascher, Barbarito & Frost; Nunn and Bonnie C. Frost on the brief). Respondent has not filed a brief.