New Jersey Divorce article

The Imputation of Income to Assets Distributed in Divorce

(Miller v. Miller - Then and Now)

  By:
Charles F. Vuotto, Jr. Esq.
Lee Ann McCabe, Esq.
With Special Thanks to Paul Gazaleh, CPA
of The Chalfin Group and to Lizanne Ceconi, Esq. 

2002

The imputation of income has been an integral part of our jurisprudence for many years.  Income is routinely imputed to an underemployed or unemployed spouse.  This is done regardless of whether that spouse is the supporting or the supported spouse and in the context of both alimony and child support.  Although the Supreme Court’s decision in Miller v. Miller, 160 N.J. 408 (1999) was the first in New Jersey to unanimously hold that a reasonable rate of return[1] can be imputed to a payor’s investment assets, different from the actual rate of return, the concept of imputing income was not new to the Courts.  This requirement is now codified within N.J.S.A. 2A:34-23 (b) (11)[2], which provides that “the income available to either party through investment of any assets held by that party” is to be considered in the alimony calculus.  The conclusion reached from a review of the statutory and case authority is that when fixing alimony and child support incident to divorce, income should  be imputed to each spouse when human or asset based capital is under-utilized.  Specifically, a spouse cannot insulate his/her assets from a support calculation by investing them in a non-income producing manner inconsistent with the marital lifestyle.

In Aronson v. Aronson, 245 N.J. Super. 354 (App. Div. 1991) the Court made it clear that interest income from an inheritance could be considered in the alimony calculation.  Judge Fisher’s subsequent decision in Stifler v. Stifler, 304 N.J. Super. 96 (Ch. Div. 1997) went further.  Therein, the Court held that interest income could be imputed to an asset inherited by the supporting spouse, which had been converted into a non-income bearing asset, to reflect interest that could have been realized had the funds been invested differently.  Judge Fisher reasoned that if this were not the case, supporting spouses would have a “perfect blueprint” for evading the clear intent of Aronson.   Our Appellate Court in Connell v. Connell, 313 N.J. Super. 426 (App. Div. 1998) adopted the reasoning of Aronson and Stifler in the context of a child support calculation.  The Court made it clear, however, that before  income can be imputed  to all or a portion of an inheritance, there must be a “foundation to do so.  The peculiar facts of each case must be carefully weighed to achieve fairness and balance in considering a parent’s inheritance.” Id. at 434. 

The seminal concept espoused by Miller is that a court will not permit a supporting spouse to be “equity rich but ‘alimony poor.’” Miller approached this issue by further expanding the concept of imputing income to assets to permit the imputation of a “reasonable rate of return” in excess of the actual return.  In his written opinion, Justice James H. Coleman stated that “[G]iven that both income earned through employment and investment income may be considered in a court’s calculation of an alimony award, it follows that there is no functional difference between imputing income to the supporting spouse earned from employment versus that earned from investment.”  Id. at 423.  The essence of the opinion was that it was fair to impute additional income to Mr. Miller under the facts of that case.

THE FACTS IN MILLER

The parties were divorced in 1988 after a twenty-one year marriage.  When the Complaint for Divorce was filed in early 1987, Mr. Miller was employed by Merrill Lynch as Manager of Municipal Markets.  Mr. Miller received a base salary of $150,000 and was entitled to an annual bonus, which was based on his performance as well as the overall performance of the company.  In 1987, Mr. Miller’s bonus peaked at $1.1 million.  Mr. Miller’s compensation package also included an unspecified amount of Merrill Lynch restricted stock.  In comparison, Mrs. Miller had been a homemaker throughout the marriage and had raised the parties’ two children.

The parties entered into a Property Settlement Agreement which provided for the payment of alimony to Mrs. Miller in an amount equal to 50% of Mr. Miller’s monthly net income from his employment, which at that time entitled her to $3,750 per month, and 50% of the first $300,000 of Mr. Miller’s bonus, with an annual cap of $200,000. With the exception of Mrs. Miller’s waiver of any interest in 10,000 shares of restricted stock that Mr. Miller had received for work performed in 1987, as well as her waiver of an interest in any additional shares he might receive thereafter, the marital estate was distributed equally with each party receiving approximately $1 million in equitable distribution.

For the years 1988, 1989, 1991 and 1992[3], Mr. Miller had earned income and paid alimony as follows:

              Husband’s Income                   Wife’s Alimony

1988                $   859,354                     $194,493

1989                $1,323,838                     $193,700

1991                $1,974,310                     $203,307

1992                $5,684,004[4]                 $199,277

In late 1991, Mr. Miller became ill and, in early 1992 took a new and less stressful position with Merrill Lynch.  He received the same salary and believed that he was still entitled to a bonus.  Contrary to his expectations, he did not receive any additional bonus income.  He received his last paycheck in May 1994 and later that year filed a complaint with the Equal Employment Opportunity Commission (EEOC) charging Merrill Lynch with discrimination against him based on age, disability and retaliation.  Mr. Miller was terminated in January 1995.

Commencing in 1993, Mr. Miller fell behind in his payment of alimony.  As a result, Mrs. Miller filed an application with the Court seeking, among other things, to compel Mr. Miller to pay the agreed upon alimony.[5]  After the exchange of limited discovery as to Mr. Miller’s income, the trial court held a Lepis[6] hearing to determine whether or not Mr. Miller’s circumstances had changed so substantially that he was entitled to a modification of his alimony obligation.  The trial court held that Mr. Miller had experienced “a substantial change in circumstances which is not temporary in nature.”  Miller, at 416.  The Court further found that Mr. Miller had a net worth of $6,561,644 of which $4.5 million was liquid.  Of that, he had $1.5 million invested in Municipal Bonds, which yielded tax free income of $87,500 per year, and the remaining $3 million in a number of growth stocks, which paid approximately $50,000 per year in interest and dividends.  The Court also imputed $100,000 of income to Mr. Miller that he could have otherwise earned through self-employment, consulting or other employment.

In contrast, Mrs. Miller was found to have earned $40,000 in 1994.  Her assets, worth approximately $1,162,000 included a home worth $425,000 a small IRA and an investment account worth approximately $700,000.  Her annual budget of $173,216 was found to be inflated and unreasonable.  The trial Court found that, based upon Mr. Miller’s changed circumstances, neither party would be able to maintain the marital standard of living.  The Court set reduced Mr. Miller’s alimony obligation at $48,000 as compared to from the agreed upon formula with a maximum of $200,000.   Toto the  $48,000 figure, which sum represented 50% of Mr. Miller’s net salary if he were still working at Merrill Lynch.

The Appellate Division affirmed the trial court’s entire decision.  In her argument to the Supreme Court, Mrs. Miller asserted that the trial court failed to identify and consider all of Mr. Miller’s passive income, in the alimony calculus, including income earned from his substantial investment portfolio.  She argued that given his extensive experience as a knowledgeable and successful investor, his investments could earn substantially more than the figure accepted by the trial court.   In response, Mr. Miller argued that the computation of a potential yield on his investments was “an overly complicated task that the courts should not undertake."  Id.  at 417.  The Court rejected Mr. Miller’s argument stating that the “mere difficulty in determining the quantum of value of a party’s claim is no reason to bar that claim if it is otherwise established.”  Id. at 424 (quoting Whitfield v. Whitfield, 222 N.J. Super. 36, 47 (App. Div. 1987)).  Although the Court acknowledged that there was additional work that would have to be done by the bench and bar in order to fine tune the complex task of imputing income to more sophisticated investments, “justice cannot ‘sit … by and be flaunted in case after case before a remedy is available.’”  Id. (quoting State v. Gilmore, 199 N.J. Super. 389, 409 (App. Div. 1985)).

In considering whether or not Mr. Miller was entitled to a modification of his alimony obligation, the Court restated the fundamental standard as follows:  “When the support of an economically dependent spouse is at issue, the general considerations are the dependent spouse’s needs, that spouse’s ability to contribute to the fulfillment of those needs, and the supporting spouse’s ability to maintain the dependent spouse at the former standard.”  Id. at 420 (quoting, Lepis, supra, 83 N.J. at 152).  Although the supporting spouse’s ability to pay, based upon their earned income through employment, is the central issue in a modification application, it is not the singular measure of the ability to pay inquiry.  “Real property, capital assets, investment portfolio, and capacity to earn by ‘diligent attention to . . . business’ are all appropriate factors for a court to consider in the determination of alimony modification.”  (Emphasis added) Id. at 420-421 (citing Innes v. Innes, 117 N.J. 496, 503 (1990))(quoting Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)).

Mrs. Miller asserted that the Court should adopt a different definition of income.  She suggested that “potential yet unrealized, income from plaintiff’s investments should be imputed to plaintiff in much the same way as income earned through employment is imputed to an unemployed or underemployed supporting spouse.”  Id. at 422.  In reviewing our jurisprudence, the Court reiterated the well settled principles that:

•      A supporting spouse’s assets can be considered in calculating an alimony award;

•      Income derived from assets that are otherwise excludable from equitable distribution may be considered in the calculation; and

•      A supporting spouse cannot insulate his/her assets from an alimony calculation by investing them in a non-income producing manner.

The Court concluded that there was no “functional difference between imputing income to the supporting spouse earned from employment versus that earned from investment.  In both instances, the supporting spouse is required to earn more from a particular asset, either his human capital in the form of employment or his investment capital or risk the imputation of income.”  Miller, at 423.  The Court noted that the trial court imputed $100,000 of income to Mr. Miller even though he was not working.  In expanding that rationale and applying the same principles, the Court held that Mr. Miller could invest his substantial capital assets to yield more than the 1.6 percent that they were then earning.  Requiring him to do so did not mean that he would be required to deplete his principal, but rather meant only that he could invest differently to realize a higher yield in the same manner that an underemployed spouse could obtain a higher paying position to make more productive use of his human capital.

Finally, the Court had to determine the appropriate rate of return to be imputed.  The Court chose a variable rate “because it is more equitable in that it accommodates market fluctuation.”  Id. at 424.  The Court concluded that “under the present circumstances” the most equitable solution for imputation of income to Mr. Miller’s investments was to utilize the long-term corporate bond rate based upon Moody’s Composite Index on A-rated Corporate Bonds.[7]  This method, the Court held, would provide a “prudent balance between investment risk and investment return.”   The Court made it clear that Mr. Miller did not have to actually invest his entire portfolio in long-term corporate bonds.  Rather, he was free to diversify and invest his assets, as he deemed appropriate.  The Court’s decision required only that no matter how Mr. Miller chose to invest his assets, reasonable income would be imputed for purposes of the alimony calculus.

On remand, the trial court was directed to consider the imputed investment income in the same manner that it imputed and considered income from salary and bonus in its alimony recalculation.  Assuming that Mr. Miller’s income from earnings was imputed to be $100,000 and from his liquid investment portfolio of $4.5 million income was imputed to be $346,500 ($4.5 million x 7.7%), his after tax income would be about $254,505 (assuming a 43% Federal/State blended tax rate).  Based on the parties’ Agreement, Mrs. Miller was entitled to 50% of this, with a cap of $200,000.  Therefore, she should have received an award of approximately $127,253.

Prior to making a determination on the remand, the trial court requested clarification from the Supreme Court.  Judge Whitken submitted three questions to the Supreme Court requesting a response.  Those questions were as follows:Judge Whitken was advised, by Stephen W. Townsend – Clerk of the Supreme Court, that nothing further would be provided.[8]

            1.            Is the court at the remand hearing to merely recalculate the plaintiff's income by using 7.7%, which is the average rate on Moody's composite index on A-rated corporate bonds, as to the $3 million stocks owned by the plaintiff and then determine what alimony amount should have been set at the time of the plenary hearing conducted before me in 1995?

            2.            Rather than proceeding on the above, should the court order additional discovery including case information statements of the parties and make a determination as to the present needs of the defendant and establish an alimony figure as of the date of a new plenary hearing utilizing 7.7% as the rate of income on the present value of plaintiff's stocks?

            3.            In either of the above situations am I also to attribute a 7.7% rate of return on the defendant's invested assets?

The Supreme Court responded by way of a letter issued by Stephen Townsend, Clerk of the Supreme Court, amending the final paragraph of its prior opinion to read as follows:

We hold that the parties' original property settlement agreement should not be reformed based upon [wife's] allegation of unconscionability.  We also hold that annual income should be imputed from all of plaintiff's investments based upon the average preceding five-year historical rate of return on A-rated long-term corporate bonds.  Consequently, the decision of the appellate division is modified and affirmed.  We remand the matter to the family part for further proceedings consistent with this opinion.

The remand brought an interesting new twist to an already captivating case.  An application to intervene was made on behalf of Mr. Miller’s present wife.[9]  That application was denied.  The trial court held that Mr. Miller’s present wife’s interests would be “amply and adequately protected by [plaintiff]”.  Following the remand, Judge Whitken issued a letter in May, 2000 which provided, among other things, that the "only interpretation" that he could derive from the Supreme Court's response to the three questions that he submitted to the Court for clarification was that:participation would adequately protect and address his present wife’s concerns.  The Court proceeded to impute a seven percent rate of return to Mr. Miller’s entire portfolio failing to take into consideration that it was a joint account with his present wife.  Based upon the new calculation, the Court ordered Mr. Miller to pay alimony in the sum of $100,000 per year.

Each year a determination must be made as to what all of [husband's] investments are and then impute income based upon the preceding five-year historical rate of return on A-rate Long-Term Corporate Bonds.  It certainly appears that not only is the 7.7% figure to be applied to the $3 million worth of [husband's] assets as they were at the time of this Court's hearing, but 7.7% is also to be imputed to the $1.5 million invested by [husband] in municipal bonds.

The judge proceeded to recalculate the plaintiff's income by imputing 7.7% to his $4.5 million worth of assets.  The Court further proceeded to "set alimony based upon all of the considerations set forth in the statute, which findings have already been made by the Court in its written opinion which findings were not in any way reversed by the Supreme Court."  With that in mind, Judge Whitken determined that it was not necessary to hold another plenary hearing.  He'd hold however that a "recalculation of the parties' income [would] be required each year [to see] if there is a substantial change in those figures," which might warrant further modification of the husband's alimony obligation.

Again utilizing the 7.7% average rate of return on corporate bonds as identified by the Supreme Court, Judge Whitken then calculated that plaintiff's total imputed income from all of his investments was $346,500, which sum was then added to the $100,000 of earned income he had previously imputed to the husband in his 1995 opinion.  Therefore, plaintiff's total imputed income was $446,500.  Similarly, by applying the 7.7% figure to defendant's investment, the judge calculated that defendant had $55,733 in imputed investment income, which sum was added to her $40,000 salary[10] for total income of $95,733.  Judge Whitken went further and briefly reviewed the parties' marital standard of living and the expenses claimed by defendant in her Case Information Statement and noted the differences in the income imputed to or earned by each and determined that plaintiff's alimony obligation should be $100,000 per year.[11]

The Court issued a supplemental letter opinion on June 12, 2002 directing that the parties' income be recalculated each year following 1995 (the date of the original hearing) to determine if a further modification of the husband's alimony obligation was appropriate.  On August 1, 2002, the judge's order was memorialized in a written order.

On September 11, 2000 the trial judge issued another order and letter in which he indicated that, in lieu of a plenary hearing each year to determine if changed circumstances had occurred to such a degree that would warrant further modification in plaintiff's obligation to pay alimony, the parties would only be required to submit the tax form.  If the returns indicated a substantial change in their respective financial conditions, either party could seek a modification with regard to the alimony amount.

Both parties appealed[12] as did Mr. Miller’s present wife on the issue that she should have been allowed to intervene in order to protect her interest in the marital assets on which the Court imputed income.

As is relevant herein, Mr. Miller appealed claiming that the trial court erred by fixing alimony on remand from the Supreme Court but incorrectly applying the "Imputed Investment Income Rule" established by this matter by. . .

(B)            failing to marshal plaintiff's investment assets from his current wife's assets to determine which assets were eligible for application of the Imputed Investment Income Rule; and. . .

(E)            failing to compel both parties to exchange a schedule of investments for annual review, per October 1, 1999 modification by the Supreme Court, in lieu of tax returns.

As is relevant herein, the defendant cross-appealed contending that:

POINT 1.  IN FIXING ALIMONY AND ALIMONY ARREARAGES, ON REMAND, THE TRIAL COURT ERRED BY MODIFYING THE PARTIES' SETTLEMENT AGREEMENT BY SETTING A $100,000 FLAT LEVEL OF SUPPORT WHEN IN FACT THE SUPREME COURT, UPHELD THE PARTIES' PROPERTY SETTLEMENT AGREEMENT AND IN DOING SO UPHELD AN ALIMONY ENTITLEMENT BASED UPON A PERCENTAGE OF PLAINTIFF'S INCOME.

POINT 2.  IN FIXING ALIMONY AND ALIMONY ARREARAGES, ON REMAND, THE TRIAL COURT ERRED BY INAPPROPRIATELY APPLYING THE "IMPUTED INCOME" RULE, ESTABLISHED IN MILLER V. MILLER, 160 N.J. 408 (1999) BY FAILING TO

(A)            ANNUALLY USE THE COMPOSITE INDEX ON MOODY'S A-RATED CORPORATE BONDS, FOR THE FIVE YEARS PRECEDING THE EFFECTIVE DATE; AND FOR SUBSEQUENT YEARS OF THE COURT'S ORDER.

(B)            ESTABLISH PLAINTIFF'S INVESTMENT ASSETS FOR EACH OF THE YEARS FROM 1993 THROUGH 2000, COMPEL PLAINTIFF TO PROVIDE DISCOVERY REGARDING HIS INCOME AND ASSETS SINCE 1994, AND REQUIRING BOTH PARTIES EXCHANGE TAX RETURNS.

POINT 3.  IN FIXING ALIMONY AND ALIMONY ARREARAGES, ON REMAND, THE TRIAL COURT ERRED BY INAPPROPRIATELY CONSIDERING THE DEFENDANT'S INCOME AND APPLYING A HYPOTHETICAL INVESTMENT INCOME TO HER IN COMPUTING PLAINTIFF'S SUPPORT OBLIGATION AND ARREARS WHEN THE PLAINTIFF HAD NOT SOUGHT THAT RELIEF FROM THE SUPREME COURT AND WHEN THE PARTIES' AGREEMENT CLEARLY LOOKED ONLY TO PLAINTIFF'S INCOME TO COMPUTE FOR IT.

Mrs. Nolan-Miller cross-appealed on the following points:

POINT 1.  THE TRIAL COURT ERRED IN DENYING JOAN GREEN NOLAN-MILLER'S APPLICATION TO INTERVENE IN THE MATTER OF MILLER V. MILLER.

(A)            THE TRIAL COURT ERRED IN DENYING MS. NOLAN-MILLER'S APPLICATION TO INTERVENE PURSUANT TO NEW JERSEY COURT RULE 4:33, ET SEQ.

(B)            THE TRIAL COURT FAILED TO MAKE SUFFICIENT FINDINGS OF FACT OR CONCLUSIONS OF LAW TO SUPPORT ITS DENIAL OF MS. NOLAN-MILLER'S APPLICATION FOR LEAVE TO INTERVENE.

POINT 2.  THE TRIAL COURT ERRED IN CALCULATING AND IMPUTING INVESTMENT INCOME TO PLAINTIFF FROM INVESTMENT ASSETS HELD JOINTLY WITH JOAN GREEN NOLAN-MILLER, THUS CREATING AN IMPROPER SUPPORT OBLIGATION ON THE PART OF JOAN GREEN NOLAN-MILLER.

POINT 3.  THE TRIAL COURT'S DENIAL OF JOAN GREEN NOLAN-MILLER'S APPLICATION FOR LEAVE TO INTERVENE AND IMPUTATION OF INVESTMENT INCOME ON HER JOINT ASSETS FOR DEFENDANT'S SUPPORT VIOLATE HER RIGHT TO EQUAL PROTECTION UNDER THE LAW, AS WELL AS THE DUE PROCESS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTION.

Mr. Miller’s present wife argued that her interest in the investment portfolio should not have been considered when imputing income to Mr. Miller.  By doing so, the trial court essentially imposed a support obligation on her, as the new spouse, an obligation, which, if true, is clearly not permissible.  She further argued that, constitutionally, she was receiving unequal treatment as compared to a divorced spouse.  In other words, if she and Mr. Miller divorced, she would receive her interest in the investment portfolio.  The Court could not then consider that portion of the account received by her in equitable distribution in the alimony calculus as to the first Mrs. Miller.  By doing so in the context of this second marriage, she was being deprived of her share of the income from the joint asset.  Moreover, if the court is permitted to impute income on joint marital assets owned with a new spouse and there is a subsequent divorce, then the Court will be besieged with modification applications to account for the decrease in assets, on which income was imputed, as a result of the divorce.

The case is pending and the outcome of this latest appeal is unpredictable.  However, given tGiven the questions raised by the Miller decision and the new issues that have arisen since, it is likely that the Supreme Court has not seen the last of the Millers.

IMPUTATION OF INCOME TO ASSETS BEFORE MILLER

Courts in other jurisdictions have applied the principles enunciated by our Supreme Court in Miller for years in both the contexts of child support and alimony.  For example, in Kay v. Kay, 37 N.Y. 2d 632 (1975), the Court held that the payor’s capital and other assets could be used to pay alimony and child support and would not be exempt because he knowingly maintained them in a form that limited the amount of income they produced.  The Court of Appeals of Indiana in Gardner v. Yrttima, 743 N.E. 2d 353 (2001), relied upon the decisions of sister states, including the New Jersey decision in Connell, supra, holding that interest, dividends and other return on investments from inherited assets of the payor, therein the mother, was income for purposes of calculating child support.  That Court further held that if the inherited assets were invested in such a way that they failed to produce income, the Court could consider whether it was equitable and appropriate, in a particular case, to impute income to those assets.  Accord, Ford v. Ford, 1998 Tenn. App. LEXIS 703, *10, No. 01 A01-9611-CV-536, 1998 WL 730201, *3 (Tenn. Cr. App. 1998).  The California Court of Appeals held that the imputation of income to investments was appropriate in the context of a child support calculation, even where the payor’s assets had historically been non-income producing.  The Court further held that although the history of non-income production was a factor to be considered by the Court, it did not prohibit the Court from exercising its discretion in imputing income.  In re the Marriage of Destein v. Destein, 91 Cal. App. 4^th 1385 (2001). 

A number of states have definitively addressed this issue, as it relates to child support, by including, within their child support guidelines or applicable statutes, a definition of income that specifically provides for the imputation of income to investment assets or other non-income producing assets.  For example, New York’s Child Support Standards Act, McKinney’s Family Ct. Act §413(1)(b)(5)(iv)(A), grants express discretion to the Family Court to “attribute or impute income from non-income producing assets to a parent charged with the support of his or her children.”  See Ogborne v. Hilts, 262 A.D. 2d 857, 692 N.Y.S. 2d 490 ( 1999).  In Vermont, child support is based on the parent’s gross income.  That state’s statute defines gross income as the “actual gross income of the parent” including “income from any source, including, but not limited to, . . . trust income” and further provides that “income at the current rate for long-term United States Treasury Bills[13] shall be imputed to non-income producing assets with an aggregate fair market value of $10,000.00 or more.”  15 V.S.A. § 653(5)(A)(I).

THE AFTERMATH – HOW HAS MILLER CHANGED THE PRACTICE

Not including the claims by the current present Mrs. Miller, the decision in Miller raised many questions for practitioners and judges alike, including, but certainly not limited to, those raised in an intriguing article by John P. Paone, Jr., Esq., which was published shortly after the Miller decision.  Mr. Paone raised the following questions:

•       Should income imputation of investment assets be applied in all cases or is this analysis fact/case specific?  (We propose that it should be applied in all cases, where it is equitable to do so.  In other words, a reasonable rate of return should be imputed against non-income producing assets, except to the extent non-income producing assets should exist to meet the marital lifestyle.  For instance, if the parties lived in a $300,000 home during the marriage and now one spouse uses $600,000 of his or her assets to buy a new home, $300,000 should be imputed with a reasonable rate of return.  Also, we may wish to consider a threshold amount, which must exist before imputation is performed.  For instance, we may choose $10,000 as did the Vermont legislature in that state’s definition of gross income.)

•       Does this imputation of income also apply to the supported spouse’s investments? (We propose yes.)

•       Will the Court apply this same “bright-line” rule to initial alimony awards or does it apply only in the context of a modification application? (We propose that it should be applied equitably at the time of an initial award and upon review for modification.)

•       If child support is also an issue, are two different income figures utilized since the definition of income used in Miller is more expansive than that set forth in our Child Support Guidelines? [14]  (We propose that one standard should be used for each party’s income.  The Miller standard should be used and the Child Support Guidelines appropriately modified.)

The decision in Miller has been cited in only a few cases and even then only with general reference to a change of circumstances application.  See Crews v. Crews, 164 N.J. 11 (2000); Colt v. Colt, 163 N.J. 9 (2000); and Schwarz v. Schwarz, 328 N.J. Super. 275 (App. Div. 2000).  It was also cited in the recent unpublished case of William Van Stuck v. Christine H. Stuck[15], A-1807-00T5 (App Div. 2002), decided by the Appellate Division on March 11, 2002.

Therein, the appellant husband contended, among other issues not relevant here, that the trial Court had failed to apply Miller when calculating the parties’ respective incomes for alimony purposes, and the cross-appellant wife contended, among other things, that the trial court erred in not imputing income to the husband’s real property. The Court responded briefly on each party’s reliance on Miller.              As to the wife’s assertion, the Court held that Miller did not apply to the husband’s real property since the facts in this case were distinguished form those in Stifler where income producing assets were used to purchase non-income producing assets.  Moreover, the Court recognized that the trial court did take into consideration the rental income from the property as well as the potential sale proceeds from the properties as required by N.J.S.A. 2A:34-23(b)(11).

The Appellate Court rejected the husband’s contention that the trial court should have used a lower rate of return than that which was actually received on his investments for the alimony calculus.  The Court properly recognized that the trial court was not faced with the problem of imputing income to an investment or asset, which is earning only negligible income as in Miller.  The husband’s portfolio was realizing a healthy rate of return above the 7+% suggested in Miller.  “There is nothing in Miller that would require a judge to utilize a lesser rate of return than what was actually earned.”  Van Stuck, at 14.

The Court in the Connecticut case of Leidner v. Leidner, 1999 WL 956660 cited Miller specifically with reference to the imputation of income to an inherited asset.  However, that case is neither instructive nor enlightening as the Court therein merely imputed an interest, at the rate of 6%, to an inheritance that was deposited in a Fleet Money Market account.  This imputation occurred only because the litigant failed to address the issue of what interest rate was being paid and does not provide any guidance on the complex tasks suggested in Miller. 

Relying in part on the decision in Miller, the Supreme Court of Vermont, clarified the definition of gross income for the purpose of calculating child support.  The Court held that “income at the current rate for long-term United States Treasury Bills shall be imputed to non-income producing assets with an aggregate fair market value of $10,000.00 or more.”  Clark v. Clark, 779 A. 2d 42, 45-46 (2001)(quoting Ainsworth v. Ainsworth, 154 Vt. 103, 107, 574 A. 2d 772, 775 (1990)) (Emphasis added).

CONCLUSION

Based upon the instruction provided by Miller, the matrimonial practitioner is now given at least two guideposts in calculating a “reasonable rate of return” for investment assets.  We propose that case law and statute require this “imputation” to apply equally to supporting and supported spouses.  The Miller guideposts are:  (1) Moody’s Composite Index on A-rated Corporate Bonds (now resulting in 7.46%); and (2)  Lehmann Brother’s Five Year Average on T-Bonds Index could not be found for this article so we used the Salomon Smith Barney Term US Treasury Bond Index (now resulting in 6.24%). Based upon the instruction provided by Stiffler, the rate is 6%.  Out of state authority has suggested other rates (e.g., Barrett v. Barrett, 963 S.W.2d 454 (Mo. Ct. App. 1998) suggesting a 5% - 6% rate.  See also the Vermont statute which requires imputation at the current rate for long-term United States Treasury Bills shall be imputed to non-income producing assets with an aggregate fair market value of $10,000.00 or more.”   15 V.S.A. § 653(5)(A)(I).)  There are still other indicators of reasonable rates of return such as the change in the Dow Jones Industrial Average[16] and the change in the Standard and Poor’s 500 Index[17].  The Court can also consider the average of the four above referenced indicators, which is 8.66% for the past five years, as follows:

Note Problem When Using Historical Indexes:  Beware that these rates may include a combination of dividend plus/ minus appreciation or loss of the bond, which isn’t always a direct income to the bondholder.  Therefore, the bond may not actually throw off that much income.[18]

However, whether one follows the strict ruling of Miller, or some other reasonable rate of return dictated by the facts and equity, one thing is very clear - liquid assets (and non-liquid assets which reflect an above marital lifestyle standard of living) are subject to the fair imputation of income.

The full impact of Miller has yet to be seen in New Jersey.  The Supreme Court left it to the bench, bar and legislature to “fine tune” the rather complex task of imputing income to assets distributed incident to divorce and to answer, perhaps on a case by case basis, some of the questions posed in this and other articles on the subject.[19]  Since the Miller decision was rendered, the issue was at least partially addressed by the legislature with the addition of N.J.S.A. 2A:34-23(b)(11), which provides that “the income available to either party through investment of any assets held by that party,” must be considered in the alimony calculation.

What is clear is that the practitioner must be mindful of the possibility of the imputation of income as prescribed by Miller, and make zealous inquiry from the very first consultation with a matrimonial client as to the nature of each and every one of the assets held by each party and how those assets will be situated after a divorce.  If these issues are explored from the very start of the litigation, we will be in the best possible position to creatively and artfully address the issue of imputing income to assets in the appropriate case and assist the Court as to the manner in which the imputation should be undertaken.

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CHARLES F. VUOTTO, JR.