MARK TANNEN V. WENDY TANNEN, ET ALS.
A-4185T1/4211-07T1 08-31-10 (consolidated)
Defendant/wife was the beneficiary of a discretionary
support trust settled by her parents. She and her parents were
the trustees of the trust.
The judge handling the divorce action ordered
plaintiff/husband to name the trust (and other family trusts) as
third-party defendants in the litigation. The trusts
participated in the trial.
At the conclusion of the trial, limited to the financial
issues of alimony, equitable distribution and child support, the
judge imputed income from the trust to defendant, and ordered
the trustees to make a monthly payment to her. He then further
ordered the trust to continue making payments for shelter-
related expenses that it historically had made. The judge then
computed plaintiff's alimony obligation based upon this imputed
income stream.
We concluded that defendant's beneficial interest in the
discretionary support trust was not an asset held by her for
purposes of the alimony statute, and therefore no income should
have been imputed to her. However, we recognized that the
current Restatement (Third) of Trusts, extensively relied upon
by the trial judge, has changed the law, and that pursuant to
its terms, defendant has an enforceable interest in the trust
income. As a court of intermediate appellate jurisdiction, we
refused to apply the terms of the current Restatement, which
have not been adopted in any reported appellate or Supreme Court
opinion in New Jersey.
We also reversed other provisions of the judgment of
divorce regarding computation of the alimony award, the child
support award, and equitable distribution.
