NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0830-16T1
B.G.,
Plaintiff-Respondent/ Cross-Appellant,
v.
E.G.,
Defendant-Appellant/ Cross-Respondent. ___________________________________
Submitted March 21, 2018 – Decided August 31, 2018
Before Judges Fuentes, Koblitz and Suter.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1592-14.
Weinberger Law Group, LLC, attorneys for appellant/cross-respondent (Jessica Ragno Sprague, on the brief).
Steven H. Wolff, attorney for respondent/cross- appellant.
PER CURIAM
Defendant E.G. appeals from the custody, alimony, child
support, equitable distribution, and life insurance portions of the September 21, 2016 Final Judgment of Divorce (FJOD).1
Plaintiff B.G. cross-appeals the equitable distribution and
attorney fee provisions of the FJOD.
We reverse the child support calculation set forth in the
September 21, 2016 child support order, which contained a clerical
error, and order a correction to conform that order to the FJOD.
We reverse the court's denial of a credit to defendant against his
pendente lite support arrears from August 2014 to October 2014 of
$8700, reducing the arrears for that period by $4,429.68 for a
total of $4,270.32.2 We vacate the FJOD's requirement that the
parties live within fifteen miles of each other. We reverse the
inclusion in equitable distribution of any property that defendant
acquired from Ophthotech after April 1, 2014, the date after the
divorce complaint was filed, and the court's order that plaintiff's
credit card debt be paid jointly from marital assets. We also
remand to the trial court to enter an order clarifying which party
pays for maintenance and expenses of the marital home. We affirm
all the remaining issues.
1 We use initials in the caption for the litigants and fictitious names for the children to maintain their privacy. R. 1:38-3(d)(13) 2 This is not intended to affect any other arrears that occurred after October 2014.
2 A-0830-16T1 I.
A.
The parties were married in May 2000, although they started
dating in 1988, and resided together sometime between 1992 and
1994. They have four children: Mary, born in 1994; Edward, born
in 2000; Quincy, born in 2003; and Jane, born in 2008. Mary was
emancipated by the time the court entered the FJOD.
At the time of the divorce trial, plaintiff was forty-six and
a full time homemaker. Defendant was forty-eight, then unemployed,
having most recently been employed as the director of drug product
manufacturing for a drug company where he earned an annual salary
of $175,000. Since December 2015 through the trial, he was
collecting $636 per week in unemployment benefits. Both parties
are college educated. Plaintiff's degree is in computer
technology. She worked for seven years before the marriage. She
has not been employed since 1999. Her highest income was $44,318
in 1999.
Quincy suffers from autism and pervasive developmental
delays, and requires constant supervision because of his impulse
control and anger and frustration problems. He attends a
specialized school, the expense of which is provided through the
school district until he is twenty-one. It is expected he will
require continued care in the future.
3 A-0830-16T1 Plaintiff filed for divorce on April 1, 2014. Following a
twenty-three day trial, the trial court entered a FJOD on September
21, 2016, accompanied by an eighty-three page written letter
opinion. Defendant appealed the FJOD, and plaintiff filed a cross-
appeal.
B.
No one disputed the trial court's finding that the parties
suffered "irreconcilable differences for more than six months
prior to the trial" and were entitled to a divorce. The FJOD
awarded joint legal custody of the three minor children to
plaintiff and defendant. It designated plaintiff as parent of
primary residence (PPR) of Quincy and Jane. Defendant was
designated the PPR of Edward and granted parenting time with Quincy
and Jane. Plaintiff did not immediately have parenting time with
Edward, but the FJOD ordered reunification therapy in its stead.
The parties do not appeal the parenting time schedule or the order
for reunification therapy.
In ordering custody, the court found the testimony of the
court-appointed expert, Dr. William Campagna, to be "credible and
sensible" and gave it considerable weight. He testified the family
was "very dysfunctional" and there was "considerable disagreement"
between the parties.
4 A-0830-16T1 The court interviewed the children with the exception of
Quincy. Mary and Edward wanted to live with their father, citing
a number of incidents not favorable to their mother, including
that she was verbally demeaning and critical, a food hoarder, and
treated the children inconsistently by favoring the younger
children. Edward said that one time plaintiff slapped him and
made him sleep on a mattress on the floor. The court recounted
that Jane "spoke lovingly of her mom in a sincere and heartfelt
credible way."
Dr. Campagna recommended plaintiff as the PPR for Quincy, who
was doing well in the special school he was attending. He also
recommended that Quincy remain in the marital home, if financially
possible, so that he would only have minimal changes. The court
considered testimony from Quincy's school psychologist, nurse at
Children's Specialized Hospital, and a school social worker, all
of whom testified they had more interaction with plaintiff than
defendant regarding Quincy.
The court found it was in the best interests of the children
for plaintiff to be the PPR for Quincy and Jane, and defendant the
PPR for Edward. The court analyzed the factors under N.J.S.A.
9:2-4, and found the parties "have no ability to agree,
communicate, or cooperate in matters relating to the children."
Although both wanted custody of the three unemancipated children,
5 A-0830-16T1 Edward's relationship with his mother was strained, according to
Dr. Campagna. The judge was able to confirm Dr. Campagna's
psychological assessment of Edward's relationship with his mother
when the judge interviewed the children. Edward did not want to
"speak to or engage in therapy with his mother at this time."
Plaintiff had accepted Dr. Campagna's custody plan that Edward
reside with his father. Jane had a good relationship with her
mother and, depending on plaintiff's job, plaintiff may have more
parental availability for her. The parties did not have a history
of domestic violence.
The court indicated that the testimony by Mary and Edward
about their mother was "of serious concern" to the court, and that
all the children had been "hurt and harmed by the dysfunction of
their parents' divorce," but it did not find they had "suffered
any physical abuse by either party." The court found that the
children "appear to be safe with both parents."
The court agreed with the custody recommendations of Dr.
Campagna that Edward reside with defendant, and Jane and Quincy
reside with plaintiff. She has been the primary caretaker for
Quincy, and Jane has a close relationship with her. It ordered
co-parenting counseling and reunification therapy for a more
stable environment for the children. Quincy was stable in his
current school as were the other children. The court found that
6 A-0830-16T1 this custody arrangement "advances all the children's educational
needs." Neither parent was found to be unfit, but their animosity
toward each other was "not benefiting any of the children."
The court considered the geographic proximity of the parents,
who at the time were residing together in the marital home.
Plaintiff wanted to continue to reside there and to be near
Quincy's school. Dr. Campagna opined that the parents needed to
live within a thirty-minute drive from each other. He noted that
the children would be attending three different schools. Based
on Dr. Campagna's testimony and the fact that the children had
daily exposure to both parents at the time of the trial, the court
ordered that the parties were "not to move more than [fifteen]
miles from each other going forward in order to further parenting
time between each parent and all of the children." The court
considered that each parent was spending "extensive time with all
of the children."
The court considered the factors under N.J.S.A. 2A:34-23.1
in making equitable distribution of the parties' marital property.
It placed the burden of establishing that property acquired during
the marriage was immune from equitable distribution on the party
that asserted the immunity.
The parties had a fourteen-year marriage, but the court noted
they had been a monogamous couple for nearly twenty years. They
7 A-0830-16T1 were in good health with "no documented proof of emotional
instability." Neither had brought property into the marriage.
They had no pre-nuptial agreement.
The court found they had a "squarely middle class" standard
of living. The parties relied primarily on defendant's income
throughout the marriage which averaged $132,642 from 2010-2014.
Defendant also had a limited liability company (LLC) through which
he purchased investment properties. They took vacations, although
not "extravagant ones," and did not shop at "fine stores." At the
time of trial, defendant had lost his job and was collecting
unemployment. He claimed to have borrowed money from his mother
and a friend to pay for household expenses. The court considered
their case information statements showing that "their lifestyle
spending exceeded what it should have" based on the parties' annual
income in concluding "neither party will be able to maintain the
marital lifestyle going forward."
They had four investment properties in Pennsylvania and one
in Buffalo, New York. These were used for rental income; only one
had a mortgage. The court found the ownership of the properties
allowed the parties "to deduct a portion of the parties' household
expenses and vehicles from their income taxes." Although they did
not dispute the values of the properties or that the properties
8 A-0830-16T1 were capable of producing income, the court ordered an appraisal
of the properties.
One of the properties, purchased in 2002, was rented to
defendant's mother for $775 per month. Defendant claimed that in
2013, the LLC transferred title to his mother and that she no
longer pays rent. He did not recall telling plaintiff about the
transfer, nor was there a deed to evidence it.
The court appointed Dr. Charles Kincaid, a vocational
rehabilitation specialist, to evaluate plaintiff's future
employability because she had not been in the workforce for
fourteen years. He opined she could return to work with training.
He identified three job areas, which included computer programing,
teaching, and employment as an administrative assistant.
The court found plaintiff credible that it would be difficult
for her to return to the job market given the number of years she
had not worked, the need for retraining, and her child care
responsibilities, especially for Quincy. It discounted as not
entirely credible or reliable, Dr. Kincaid's analysis because he
did not take into consideration plaintiff's child care issues or
commute. The court found most credible his opinion that plaintiff
was employable as an administrative assistant, earning
approximately $39,000 per year, which was the amount of income
that the court imputed to plaintiff.
9 A-0830-16T1 The court found defendant had the "greater earning capacity"
based on his employment history. During the five years before the
divorce complaint was filed, including 2014, their joint tax
returns showed an average income of $132,642. After the complaint
was filed, he worked with a firm (Ophthotech) where he earned
$175,000, as well as vested and unvested stock, bonuses and a
severance package. However, that company had given him three
options: to continue with it on a "performance plan," accept less
income and transfer to Colorado, or separate from the company with
a severance package. He chose the latter. The court found he was
employable in the pharmaceutical or real estate fields, that his
unemployment was voluntary and imputed an annual income to him of
$132,642.
The court considered that plaintiff had worked before they
were married and afterwards contributed to defendant's "high
earning power" by "caring for the household and the four children."
Defendant was laid off from Merck just days before plaintiff
filed for divorce. His $50,000 severance package was received
shortly after the complaint was filed. Defendant testified that
he used those funds to pay a Pennsylvania attorney for work in
connection with the investment properties, but he did not provide
written evidence to substantiate that testimony. As such, the
10 A-0830-16T1 court found that the Merck severance was subject to equitable
distribution, and awarded $25,000 to plaintiff.
The court found that it would be "detrimental" and not in the
best interest of Jane or Quincy to be removed from their current
schools, concluding that plaintiff had a need to continue to occupy
the marital home until Jane graduated high school. After that,
the court ordered the marital residence to be sold and the proceeds
divided evenly between the parties.
The court considered the parties' debt. There was only one
mortgage of $62,954 on the rental properties, although the marital
property was mortgaged for $396,500. Defendant had a number of
loans. He claimed his mother loaned him a total of $73,450
beginning in August 2011. Defendant's mother testified about an
itemized listing of these loan amounts, but the list was not
notarized or witnessed. She testified their agreement was made
in "private." At the time of trial, none of these loans had been
paid back.
Defendant testified that a friend of his, Jerry Stern, loaned
him $30,000 that he used to pay a litigation fund, which had been
ordered by the court to pay marital debt and his pendente lite
support obligation to plaintiff. He also claimed to have a loan
from Wells Fargo Bank.
11 A-0830-16T1 The court ordered that defendant was solely responsible to
repay these loans because there was no proof of the purpose of the
loans, he had not discussed them with plaintiff and the loan
documents related to the Jerry Stern loan were "self-authored and
self-serving."
Both parties had credit card debt. Plaintiff testified she
had to take out a credit card during the divorce to cover Schedule
C expenses because defendant failed to pay his $2900 per month
pendente lite support. The court ordered that all of the parties'
credit card debt was to be paid from the proceeds following sale
of their investment properties.
Pursuant to a June 27, 2014 court order, defendant was
required to pay $2900 in pendente lite support to plaintiff for
Schedule C expenses, including food, medical insurance, clothing,
activities, and debt services for the family. In October 2014,
the court ordered defendant to pay $100 per week through wage
garnishment for pendente lite support arrears of $8700.3 At trial,
defendant contended he was not in arrears, having made payments
between July 2014 and October 2014 for Schedule C items. He
proffered supporting bank records and credit card statements. He
claimed that plaintiff was accumulating the pendente lite payments
3 The parties have not included this order in the record.
12 A-0830-16T1 to use for attorney's fees. She acknowledged she was thinking
about this but had not done so. The court denied defendant's
request for a credit, finding that the payments presented at trial
did not show that he was not $8700 in arrears.
The court found that the parties' real estate was acquired
during the marriage and was subject to equitable distribution.
The court did not find credible the testimony that one of the
investment properties had been gifted to defendant's mother. The
court found defendant did not meet his burden of showing that
property was immune from distribution and found instead that "the
transfer was a dissipation of a marital asset." The court ordered
that property also was to be sold and the proceeds divided evenly
between the parties. The court further ordered that all the
properties, save for the marital home, were to be sold and
appointed an agent to market and sell the properties. The monies
were to be held in escrow pending payment of marital debt. The
court ordered that the marital home was not to be sold until Jane
graduated high school, and then, the proceeds were to be divided
fifty-fifty. The court's order divided the motor vehicles and
bank accounts.
Defendant also had three retirement accounts. One account
was pre-marital and not subject to equitable distribution. The
court ordered the even distribution of the other two; one from
13 A-0830-16T1 Merck and one from Ophthotech, subject to qualified domestic
relations orders, with a credit to plaintiff for any invasion of
these funds for litigation.
Plaintiff requested open durational alimony, but defendant
only wanted to pay rehabilitative alimony. In evaluating the need
for alimony, the court considered the factors in N.J.S.A. 2A:34-
23(b) and (c). The court noted the parties had been a couple
living together as husband and wife since "1992 or 1994,"
"dependent on one another financially." Plaintiff contributed to
defendant's career by caring for the household and the four
children; she did not maintain her career readiness. The
caretaking responsibilities for the children were primarily
plaintiff's, particularly for Quincy. Plaintiff was imputed
income, but realistically her available jobs are "limited by her
caretaking responsibilities." Defendant also would have
caretaking responsibilities, but they were not as demanding as
plaintiff's. The court considered that the parties needed separate
residences and that they had a middle class lifestyle but that
neither could maintain that lifestyle going forward.
Defendant was ordered to pay $3500 per month in open
durational alimony because the court found exceptional
14 A-0830-16T1 circumstances to adjust the duration of the alimony.4 With respect
to the duration, the court considered that the parties lived
together "in an economically exclusive supportive relationship
since 1992," which the court considered as equivalent to a long-
term marriage of over twenty years. The court also considered
Quincy's severe autism and plaintiff's primary role in caring for
him. With respect to the amount of alimony, the court considered
plaintiff's need for alimony and defendant's ability to pay it
based on their work histories, standard of living, ages, health,
earning capacities, investment properties, and parental
responsibilities. The court also considered the time and expense
for plaintiff to be retrained before going into the workforce, the
equitable distribution of property, income available to the
parties, tax treatment of any alimony award, the amount of pendente
lite support, the parties' case information statements, and
testimony about expenses. Given all of this, the court considered
that defendant could pay $3816 per month in alimony but reduced
it to $3500 per month in open durational alimony in light of his
custody of Edward.
4 There was a subsequent ability to pay hearing, resulting in an order dated April 10, 2018, that reduced the amount of alimony to $2420 per month with child support of $232 per month, for a total to be paid by defendant of $2652 per month.
15 A-0830-16T1 The court applied the Child Support Guidelines in determining
the amount of child support. The court found that defendant's
child support obligation for Quincy and Jane was $190 per week and
plaintiff's child support obligation for Edward was $221 per week,
for a net obligation by plaintiff to defendant of $31 per week.
The child support order mistakenly said the opposite- that
defendant owed child support to plaintiff of $31 per week.
The court ordered the parties to share equally the costs of
"summer camp, school uniforms, children's lessons and sports, and
other extracurricular activities." The court noted the equal
division reflected their imputed incomes after alimony. The court
also addressed college expenses following its review of the factors
set forth in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).5
Defendant requested an adjustment of his alimony obligation
to reflect the $2900 per month pendente lite support payments he
made up to February 2016, when he became unemployed. The court
denied this, finding the two awards, alimony and pendente lite
support, were similar in amount, that plaintiff had no ability
pre-divorce to pay expenses without income, and no credit was
appropriate because defendant was voluntarily unemployed.
5 We have not detailed this part of the FJOD because neither party raises issues about it in the appeal.
16 A-0830-16T1 The court ordered defendant to maintain $350,000 in life
insurance to secure his alimony obligation with plaintiff as
beneficiary and $250,000 in life insurance with the minor children
as beneficiaries, including Quincy. There was no similar
obligation for plaintiff.6
The court denied both parties' requests for attorney's fees.
The court analyzed the factors under RPC 1.5(a) and Rule 5:3-5(c),
finding that neither party acted more reasonably than the other,
both parties unnecessarily increased the amount of outstanding
attorney's fees, and both parties were successful on some counts
and unsuccessful on others.
C.
On appeal, defendant contends the trial court erred by not
giving more weight to the testimony of the children when
considering the custody of the two younger ones. He argues the
trial court should not have restricted the residential location
of the parties by ordering them to reside within fifteen miles of
each other. Defendant urges us to reverse the alimony award
because the court erred in considering the time period before they
were married in granting open durational alimony for a period of
6 The parties did not take issue with the court's order regarding alternating tax exemptions for the children, or defendant's obligation to provide health insurance for the children.
17 A-0830-16T1 time longer than they were married, and erred by trying to equalize
their incomes and by not addressing their needs and ability to
pay. Defendant asserts the child support order contains an error.
It orders defendant to pay child support to plaintiff when the
FJOD orders plaintiff to pay child support to defendant. Defendant
also challenges the court's separate treatment of certain
extracurricular expenses, requiring the parties to share these
equally when they are included in the child support amount.
Defendant disputes the awarded equitable distribution, arguing
that the marital residence should be sold now and not when the
youngest child graduates high school. He claims the court erred
by ordering the sale of the house he transferred to his mother,
by including certain post-complaint assets in the distribution,
by including plaintiff's credit card debt, and by not granting him
certain credits.
Plaintiff's cross-appeal claims their property should not
have been divided on a fifty-fifty basis and that the court erred
by not awarding her request for attorney's fees.
II.
"[W]e accord great deference to discretionary decisions of
Family Part judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197
(App. Div. 2012), in recognition of the "family courts' special
jurisdiction and expertise in family matters." N.J. Div. of Youth
18 A-0830-16T1 & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting
Cesare v. Cesare, 154 N.J. 394, 413 (1998)). We are bound by the
trial court's factual findings so long as they are supported by
sufficient credible evidence. N.J. Div. of Youth & Family Servs.
v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of
J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). However, "[a]
trial court's interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special
deference." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014)
(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)).
Defendant contends the trial court erred by failing to give
sufficient weight to the "probative testimony" of Mary and Edward
in determining custody of Jane and Quincy. We discern no abuse
of discretion.
In a custody determination, the best interest of the child
is fundamental. D.A. v. R.C., 438 N.J. Super. 431, 450 (App. Div.
2014). The court is to apply the factors set forth in N.J.S.A.
9:2-4 in its evaluation. Ibid. Included in these factors, is
"the preference of the child when of sufficient age and capacity
to reason so as to form an intelligent decision." Id. at 456.
Although "[t]he child has a right to be heard and voice an opinion
19 A-0830-16T1 to the finder of fact and ultimate decision-maker[,] [t]he court
need not be bound by the child's view." Mackowski v. Mackowski,
317 N.J. Super. 8, 12 (App. Div. 1998). We review a custody award
under an abuse of discretion standard, giving deference to the
court's decision provided that it is supported by "adequate,
substantial, and credible evidence in the record." Cesare, 154
N.J. at 412.
Here, a review of the thorough opinion of the trial court
shows that it took into consideration all of the statutory factors
and interviewed each of the children except Quincy. The court
specifically discussed Edward and Mary's negative in-chambers
testimony about their mother. The trial court noted its suspicion,
however, that the children were rehearsed and coached because of
the consistency of their testimony. Nonetheless, the court did
not "discount their sincere testimony and preferences." The court
evaluated the testimony of the court appointed expert, who was
found to be credible and sensible and who recommended the custodial
arrangement that the court ordered. Our review shows there is
substantial credible evidence in the record to support the trial
court's order regarding custody, that the court gave adequate and
appropriate weight to the testimony of Edward and Mary, and did
not abuse its discretion in entering the custody order.
20 A-0830-16T1 B.
Defendant contends the court erred by restricting them from
moving more than fifteen miles away from each other. He asserts
this violated his constitutional rights. Although we do not agree
that the provision infringed a constitutionally protected right
to travel, we do agree that it was not supported by substantial
credible evidence in the record and remand for vacation of that
provision.
The court ordered the parties "shall not move more than
[fifteen] miles away from each other in order to further parenting
time between each parent and all of the children." Dr. Campagna
testified it would be "optimal if the children did not change
their friends, their locations, their habits." With respect to
the distance between residences, it was his opinion, although
"completely subjective," that "[i]f it's more than a half hour
. . . it becomes problematic." In ordering the fifteen mile
limitation, the court considered this testimony, the children's
testimony, the fact that the children had daily exposure to both
parents, and that the parents spent extensive time with them.
Recently, the Court has clarified that the best interest
standard applies in reviewing an application under N.J.S.A. 9:2-2
by a custodial parent to remove a minor child to a jurisdiction
outside of New Jersey. Bisbing v. Bisbing, 230 N.J. 309, 322
21 A-0830-16T1 (2017). Relocation within the State is not subject to N.J.S.A.
9:2-2. Schulze v. Morris, 361 N.J. Super. 419, 426 (2003).
However, "the relocation of a child by the residential custodial
parent from one location in New Jersey to another may have a
significant impact upon the relationship between the child and the
non-residential custodial parent that may constitute a substantial
change of circumstances warranting modification of the custodial
and parenting-time arrangement." Ibid.
Here, the fifteen-mile limitation in the FJOD was addressed
to advance the children's interests in maintaining contact with
both parents once the divorce was final. However, the limitation
was not supported by substantial credible evidence in the record.
Dr. Campagna only discussed his view of the optimal driving time
between residences and acknowledged it was subjective. No one
testified about a geographic limitation. The court also did not
find that the limitation was in the children's best interests.
The court did not explore whether there were other methods to
maintain contact and, given the dysfunctional nature of the family
relationships, made no finding that this limitation was necessary
for the children. We therefore reverse and remand for vacation
of that provision of the FJOD.
That said, however, we do not find a constitutional violation.
The fifteen-mile limitation did not restrict defendant's right to
22 A-0830-16T1 travel. See Bisbing, 230 N.J. at 336. He did not argue what
other constitutional rights were implicated, and we decline to
speculate about that issue.
Defendant contends the alimony award is inconsistent with law
and fact, arguing that the trial court erred in granting open
duration alimony, erred in failing to address need and ability to
pay alimony, and erred in failing to give him a credit toward his
pendente lite arrears.
Alimony awards are not disturbed on appeal if the trial
judge's conclusions are consistent with the law and not "manifestly
unreasonable, arbitrary, or clearly contrary to reason or to other
evidence, or the result of whim or caprice." Foust v. Glaser, 340
N.J. Super. 312, 316 (App. Div. 2001). The question is whether
the trial judge's factual findings are supported by "adequate,
substantial, credible evidence" in the record and the judge's
conclusions are in accordance with the governing principles.
Ibid.; accord Gnall v. Gnall, 222 N.J. 414, 428 (2015).
Defendant asserts the alimony award should have been limited
in length to no more than the marriage itself and that the trial
court erred by using the parties' relationship prior to marriage
as an exceptional circumstance to warrant open duration alimony.
Although we agree with defendant that the parties' relationship
23 A-0830-16T1 prior to marriage in itself was not an exceptional circumstance
under N.J.S.A. 2A:34-23(c), we nonetheless agree with the trial
judge that exceptional circumstances were demonstrated on this
record without consideration of the pre-nuptial relationship.
"[T]he goal of a proper alimony award is to assist the
supported spouse in achieving a lifestyle that is reasonably
comparable to the one enjoyed while living with the supporting
spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16
(2000). It is "critical" and "essential" to "[i]dentify[] the
marital standard of living at the time of the original divorce
decree . . . regardless of whether the original support award was
entered as part of a consensual agreement or of a contested divorce
judgment." Id. at 25. In awarding alimony, the judge must
consider the thirteen factors enumerated in N.J.S.A. 2A:34-23(b),
along with any other factor deemed relevant.
N.J.S.A. 2A:34-23(c) limits the duration of alimony to the
length of the marriage where the duration of the marriage is less
than twenty years, unless certain "exceptional circumstances" are
present. It states:
For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union. Determination of the length and amount of alimony shall be made by the court pursuant to consideration of all of
24 A-0830-16T1 the statutory factors set forth in Subsection b of this section.
[(emphasis added).]
The statute lists a number of exceptional circumstances that may
require an adjustment to the duration of the alimony including:
"4) [w]hether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;
. . . .
6) The impact of the marriage or civil union on either party's ability to become self- supporting, including but not limited to either party's responsibility as primary caretaker of a child;
8) Any other factors or circumstances that the court deems equitable, relevant and material.
[N.J.S.A. 2A:34-23(c).]
Here, there was substantial credible evidence in this record
to support the finding of exceptional circumstances. The court
"coupled" its decision on duration of the relationship, during
which a child was born, with plaintiff's caretaking
responsibilities for Quincy. By all accounts, Quincy has pervasive
developmental delays. He can be physically difficult to deal
with; he attends a special school. Likely, special arrangements
will be needed for him after he reaches age twenty-one. The
25 A-0830-16T1 caretaking responsibilities "primarily belonged to plaintiff," and
plaintiff has limited job availability because of her future
caretaking responsibilities for Quincy and her need for
retraining. She also has responsibilities for another minor child.
Defendant also contends the trial court failed to meet the
requirements of the statute when it determined the amount of
alimony. We discern no error. The trial court methodically and
thoroughly addressed all of the factors under N.J.S.A. 2A:34-
23(b). The judge considered the parties' case information
statements,7 their testimony about lifestyle and financial needs,
the expert witnesses' testimony, and all of the written evidence
in evaluating that the parties' lifestyle was middle class and
that they would not be able to maintain this. Both parties had
childcare responsibilities and responsibilities for separate
households. Both were imputed income. The court's decision on
the type of alimony, duration and amount was fully supported by
the evidence in the record and thoroughly explored and explained
by the trial judge.
Defendant contends the trial court erred in failing to give
him a credit toward pendente lite arrears for July, August,
September and October 2014. He testified that he deposited $2900
7 Their CIS's do not reflect expenses for separate residences, because they still resided in the marital home during the trial.
26 A-0830-16T1 into their joint account for the July 2014 payment. Plaintiff
testified she may have received this in July but it was for June
2014. Defendant acknowledged that he did not pay $2900 per month
for August, September, or October, but testified about credit card
payments that he made and amounts that he said he deposited and
then she withdrew. These were for Schedule C expenses. The
court's opinion held that defendant had not proven he was not in
arrears for $8700, but gave no other explanation.
The court did not explain why it concluded that defendant did
not prove he paid a portion of the arrears. See R. 1:7-4(a).
Certainly, he did not follow the court's order by paying the monies
to plaintiff, but his unrebutted testimony was that he did pay a
portion of the Schedule C expenses.8 It is not clear why a credit
8 Below is a table of his payments. For the entries from August 2014 to October 2014, defendant testified that he deposited funds that plaintiff withdrew.
Amount Type Date $2900 Deposit July 2014 $125 Chase Credit Card July 2014 $125 Chase Credit Card August 2014 $247 Macy's Credit Card August 2014 $93 Macy's Credit Card September 2014 $853.68 Wells Fargo Loan Payment July 2014 $108 Wells Fargo Credit Card July 2014 $125 Chase Credit Card September 2014 $103 Wells Fargo October 2014 $93 Macy's Credit Card October 2014 $200 Deposit/Withdrawal August 2014 $142 Deposit/Withdrawal August 2014
27 A-0830-16T1 was not given. We reverse this aspect of the FJOD and remand for
the entry of an order that credits defendant's arrears for the
months of August, September and October 2014, which totaled $8700,
with $4,429.68, which reflected his testimony.
D.
Defendant contends the trial court's child support orders
were incorrect. He argues the trial court's child support order
is inconsistent with its ruling and the trial court erred in
directing the parties to share in the costs of extracurricular
activities.
The trial court's "[child support] award will not be disturbed
unless it is manifestly unreasonable, arbitrary, or clearly
contrary to reason or to other evidence, or the result of whim or
caprice." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Jacoby
v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)).
Here, there is an error because the child support order is
not consistent with the FJOD. The order required defendant to pay
$31 per week in child support to plaintiff while the FJOD required
$150 Deposit/Withdrawal September 2014 $150 Deposit/Withdrawal September 2014 $150 Deposit/Withdrawal October 2014 $150 Deposit/Withdrawal October 2014 $165 Deposit/Withdrawal October 2014 $1450 Deposit/Withdrawal October 2014 $4,429.68
28 A-0830-16T1 plaintiff to pay that amount of child support to defendant. We
remand this issue to the trial court for entry of an order
correcting the September 21, 2016 child support order to be
consistent with the FJOD.
Defendant also contends that the trial court erred in
deviating from the child support guidelines by directing them to
share equally the children's expenses for extracurricular
activities. The FJOD ordered that the parties share equally the
"costs of summer camp, school uniforms, children's lessons and
sports, and other extracurricular activities." The court
calculated child support using the Child Support Guidelines.
Typically, school uniforms, lessons or instructions and sports
admissions are included within the child support amount. However,
the guidelines can be adjusted to "accommodate the needs of the
children or the parents' circumstances." The reason for the
deviation is to be specified. Child Support Guidelines, Pressler
& Verniero, Current N.J. Court Rules, Appendix IX-A(3) to R. 5:6A
(2018).
The trial court did not abuse its discretion in ordering that
the extracurricular expenses be divided evenly between the
parties. Although some of these may have been included within the
Guidelines, here, the parties' incomes were imputed and equalized
through the payment of alimony, each paid little in child support
29 A-0830-16T1 because of that equalization, and both were the PPR for minor
children, all of whom presumably will have extracurricular
expenses. On these facts, we cannot say the court misapplied its
discretion in requiring the parties to share these expenses.
Defendant contends that the court erred by not awarding him
a Mallamo credit, pursuant to Mallamo v. Mallamo, 280 N.J. Super.
8, 12 (App. Div. 1995). In Mallamo, we held that a retroactive
modification of pendente lite child support after a full trial did
not violate N.J.S.A. 2A:17-56.23. Here, defendant has not shown
why he would be entitled to a retroactive Mallamo credit.
E.
Defendant contends the trial court erred in awarding
equitable distribution. He argues the trial court should not have
restricted the sale of the marital residence until the youngest
child graduated high school; erred in directing the sale of
property allegedly titled to his mother; erred in including
defendant's post-complaint assets in distribution; erred in
directing that plaintiff's credit card debt be paid jointly from
marital assets; and erred in failing to credit debt toward the
business properties.
We review a trial judge's decisions concerning the allocation
of assets for equitable distribution for abuse of discretion. See
Williams v. Williams, 59 N.J. 229, 233 (1971); Borodinsky v.
30 A-0830-16T1 Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978). "The
goal of equitable distribution . . . is to effect a fair and just
division of marital assets." Steneken v. Steneken, 367 N.J. Super.
427, 434 (App. Div. 2004). "In going about this task, the court
must decide what specific property each spouse is eligible to
receive by way of distribution; the value of such property for
purposes of distribution; and how such allocation can most
equitably be made after analysis of the factors set forth in
N.J.S.A. 2A:34-23.1." Sauro v. Sauro, 425 N.J. Super. 555, 572-
73 (App. Div. 2012). The determination need only reflect that the
"trial judge . . . appl[ied] all the factors set forth in N.J.S.A.
2A:34-23.1 and distribute[d] the marital assets consistent with
the unique needs of the parties." DeVane v. DeVane, 280 N.J.
Super. 488, 493 (App. Div. 1995).
For an asset to be subject to equitable distribution, it must
be "property . . . legally and beneficially acquired by [the
parties] or either of them during the marriage." Orgler v. Orgler,
237 N.J. Super. 342, 350 (App. Div. 1989) (alterations in original)
(quoting N.J.S.A. 2A:34-23). N.J.S.A. 2A:34-23 requires the
court, in making an equitable distribution of marital property,
to consider the contribution of each party to the acquisition,
dissipation, preservation, depreciation or appreciation in the
amount or value of marital property.
31 A-0830-16T1 The court did not abuse its discretion in ordering that the
marital home did not have to be sold until Jane graduated high
school. Where sale of the marital home is delayed, the final
decision "should recognize (1) a fair return for delayed
realization, (2) or an equity interest, and (3) the extent of each
party's contribution to the protection and enhancement of the
asset prior to sale." Daly v. Daly, 179 N.J. Super. 344, 350-51
(App. Div. 1981).
Here, there was expert testimony by Dr. Campagna about the
need to retain the marital home, if financially feasible, for the
children's stability. The court ordered that the parties had a
fifty percent equity interest in the property and were entitled
to fifty percent of the net proceeds upon sale when Jane graduated
high school. However, the court did not clarify which party would
pay for maintenance and expenses, an issue that requires
clarification. We remand that issue to the trial court for
clarification and the entry of a supplemental order.
Defendant contends the trial court erred by ordering the sale
of the property where his mother was residing, arguing that the
title was transferred to her before the divorce complaint was
filed, his mother is not a party to the litigation, and the court
erred by requiring him to prove the asset was exempt from equitable
distribution. The court found that defendant dissipated this
32 A-0830-16T1 marital asset and that the transfer "was conducted without
[p]laintiff's knowledge or consent, even though the property was
purchased with marital funds."
There was no misapplication of discretion or legal error
here. There was no dispute that this property was purchased during
the marriage with marital funds, making the house subject to
equitable distribution. It was defendant's burden to show that
the property was exempt. See Painter v. Painter, 65 N.J. 196, 214
(1974) (providing that the burden of showing that an asset is
exempt from equitable distribution rests with the party claiming
the exemption); Weiss v. Weiss, 226 N.J. Super. 281, 291 (App.
Div. 1988). The record supported the court's order. The court
found plaintiff was not aware of the transfer and did not consent
to it. Defendant did not produce a deed that showed the transfer.
The court found that defendant was "evasive" when testifying about
said property.
Defendant claims that the FJOD should not have included two
post-complaint assets in the property to be distributed. These
include a Wells Fargo bank account and a retirement account from
a post-complaint employer, Ophthotech. "[F]or purposes of
equitable distribution of marital assets, a marriage is deemed to
end on the day a valid complaint for divorce is filed that
commences a proceeding culminating in a final judgement of
33 A-0830-16T1 divorce." Portner v. Portner, 93 N.J. 215, 225 (1983). In this
case, the complaint was filed April 1, 2014.
As for defendant's Wells Fargo account that he claims to have
acquired post-complaint, the trial court found that "[t]here was
no testimony other than that these were all accounts acquired
during the marriage." It was defendant who bore the burden of
proving that this asset was immune from equitable distribution.
Defendant testified he lost his employment with Merck in
March 2014, shortly before the divorce complaint was filed. He
received a $50,000 severance amount either in April or May 2014.
The court was correct to order that plaintiff was entitled to
fifty percent of this amount because his employment with Merck
ended prior to the divorce and the severance amount was earned
then, even if paid later.
After the complaint was filed, defendant was employed by
Ophthotech from August 2014, to when he elected to terminate his
employment with the company rather than take one of the other
employment options it offered him. Assets he acquired from
Ophthotech were not marital assets subject to equitable
distribution. To the extent the court ordered their equitable
distribution, this was error. We remand to the trial court the
issue of excluding any Ophthotech assets from the FJOD.
34 A-0830-16T1 Defendant contends the trial court erred in directing that
plaintiff's credit card debt be paid from marital assets, arguing
that it was acquired by her post-complaint in lieu of using the
pendente lite support to pay Schedule C expenses. Plaintiff
testified she had to take out a credit card during the divorce to
cover Schedule C expenses.
The judge's order to use marital assets to pay off this debt
is not supported by sufficient credible evidence. Plaintiff
acquired the credit card debt after the complaint was filed.
Although defendant acknowledged that he did not pay the pendente
lite support as ordered, the court did not make any findings that
defendant's required payment of $2900 was not adequate to cover
the Schedule C expenses. Defendant is responsible to pay the
pendente lite arrears less the appropriate credit. If plaintiff's
credit card debt were to be paid from marital assets, defendant
would be paying again for the Schedule C expenses without any
support in the record for this additional payment.
Defendant contends the trial court erred in failing to treat
loans from his mother as part of the debt to be distributed.
However, the court found those loans were "sham loans that exist
on paper only," as "there was no proof of the purpose of the
loans." Here, the record supported the court's findings; it did
35 A-0830-16T1 not abuse its discretion by ordering that defendant is solely
responsible for the "loans" from his mother.
F.
Defendant contends the trial court should not have required
him to provide $350,000 in life insurance to secure the alimony
obligation, because the amount was too large, or $250,000 for his
child support obligation without also ordering the same for
plaintiff. N.J.S.A. 2A:34-25 provides, "[n]othing in this act
shall be construed to prohibit a court from ordering either spouse
or partner to maintain life insurance for the protection of the
former spouse, partner, or the children of the marriage or civil
union in the event of the payer spouse's or partner's death." This
statute authorized the court to require defendant to carry life
insurance to secure his obligations for alimony and child support.
The amount was not unreasonable given the duration of the alimony,
age of the parties, age of the children, and Quincy's disabilities.
That the court also could have ordered plaintiff to carry life
insurance for Edward does not mean that it committed reversible
error by not doing so, particularly given plaintiff's financial
situation and responsibilities at the time the FJOD was entered.
III.
Plaintiff filed a cross-appeal contending that the court
should not have divided the marital property evenly and she should
36 A-0830-16T1 have received an award of attorney's fees. Although a court is
not required to divide assets evenly, it may do so. See Rothman
v. Rothman, 65 N.J. 219, 232 n.6 (1974). Here, there was ample
evidence that the parties' finances going forward was not
sufficient to meet their marital lifestyle. Given this financial
picture, the court did not abuse its discretion in equalizing the
parties' finances for the future.
Plaintiff argues the court erred by not awarding her counsel
fees. The assessment of attorney's fees is an issue left to the
sound discretion of the trial court. Tannen v. Tannen, 416 N.J.
Super. 248, 285 (App. Div. 2010). "We will disturb a trial court's
determination on counsel fees only on the rarest occasion, and
then only because of clear abuse of discretion." Strahan v.
Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008). Here, the
court properly analyzed the factors under Rule 5:3-5(c) and RPC
1.5 in determining not to award counsel fees, and its decision is
fully supported by the credible evidence.
Affirmed in part; reversed in part and remanded. We do not
retain jurisdiction.
37 A-0830-16T1