Clorinda Pisano v. John Pisano
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Opinion
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0242-23
CLORINDA PISANO,
Plaintiff-Respondent/ Cross-Appellant,
v.
JOHN PISANO,
Defendant-Appellant/ Cross-Respondent. ___________________________
Argued September 25, 2025 – Decided October 10, 2025
Before Judges Mawla, Marczyk, and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0122-18.
Brian G. Paul argued the cause for appellant/cross- respondent (Szaferman, Lakind, Blumstein & Blader, PC, attorneys; Brian G. Paul, of counsel and on the briefs).
Eric S. Solotoff argued the cause for respondent/cross- appellant (Fox Rothschild, LLP, attorneys; Eric S. Solotoff, of counsel and on the briefs; Adam Wiseberg, on the briefs).
PER CURIAM
Defendant John Pisano appeals and plaintiff Clorinda Pisano cross-
appeals from an August 16, 2023 final judgment of divorce entered following a
thirteen-day trial. We affirm.
The parties were married for nearly thirty years when plaintiff filed her
complaint for divorce in August 2017, commencing this lengthy divorce
proceeding. Three children were born during the marriage. The two eldest
children were emancipated when this matter commenced and the youngest was
emancipated before trial. The parties lived an upper-class lifestyle, which
included expensive homes, cars, personalty, clothing, and vacations funded
exclusively by income from defendant's lucrative law practice. Plaintiff had not
been in the workforce for thirty years; she was a homemaker and raised the
children.
On April 26, 2017, the parties entered a cutoff agreement stipulating an
end date for the marriage for purposes of alimony and equitable distribution of
May 1, 2017. The same day, defendant withdrew $300,000 from their home
equity line of credit (HELOC), increasing the marital debt. He repaid the sum
drawn on the HELOC on May 16, 2017, after the agreed upon cutoff date.
A-0242-23 2 The parties jointly retained an appraiser to value their personal property
as of March 13, 2018. The personalty appraised for $521,077.
Numerous pendente lite orders were entered by various judges who
handled the matter prior to trial. In October 2017, defendant agreed to pay all
of plaintiff's shelter and transportation expenses, and unreimbursed medical
expenses for plaintiff and the youngest child. On October 12, 2017, the court
ordered defendant to pay plaintiff pendente lite support of $25,000 per month,
continue paying for the family memberships to two country clubs, pay off
various credit cards, and pay for housekeeping services. The court also
determined plaintiff had inappropriately withdrawn funds from a joint bank
account. She was ordered to pay $296,000 into an attorney trust account.
Plaintiff occupied the marital residence and refused to grant access to it.
As a result, on November 16, 2017, the court entered an order directing her to
arrange for landscaping and snow removal services and allow service providers
to access the residence.
During the marriage, the parties did not timely pay their taxes and did not
pay anything towards their 2017 taxes when this action was initiated. By
December 2017, defendant had paid the federal 2016 taxes in full but they still
owed $250,000 in state taxes. As a result, on December 14, 2017, the court
A-0242-23 3 reduced the pendente lite support to $10,000 per month to account for the unpaid
taxes. The court also limited defendant's personal spending to $10,000 per
month, and again ordered him to pay plaintiff's unreimbursed medical expenses.
For the 2017 taxes, defendant requested both parties execute a hold
harmless agreement, which was signed on October 11, 2018. He insisted on a
similar document for the 2018 tax obligations. When plaintiff's counsel pointed
out there were material discrepancies in the 2018 tax returns, defendant refused
to provide the documentation supporting the tax filings. Instead, he filed the
2018 tax return as a joint filing without obtaining plaintiff's approval.
On April 2 and June 4, 2018, the court again ordered defendant to pay
various outstanding credit card balances, which it originally ordered him to pay
in October 2017, and ordered him to pay nearly $14,000 in unreimbursed
medical expenses. The court denied his request for a change of venue, noting it
was an attempt to forum shop.
On July 26, 2018, plaintiff filed an emergent application to compel
defendant to pay for the youngest child's college tuition. Defendant ultimately
paid it.
On August 22, 2018, the court entered an order finding defendant violated
plaintiff's rights by not paying her unreimbursed medical expenses. On October
A-0242-23 4 18, 2018, the court ordered defendant to refrain from engaging in self-help by
taking unilateral deductions from the pendente lite support.
In 2020, the parties exchanged correspondence about repair and
maintenance issues to prepare the marital home for sale. Plaintiff claimed
structural and plumbing repairs were necessary due to pre-existing issues which
had developed since the parties built the residence decades prior. Defendant
asserted plaintiff's guests were responsible for damaging doors and workers had
damaged the gutters. In December 2021, defendant obtained an estimate for the
required repairs to the marital residence totaling $977,000.
From July 2019 through May 2022, defendant refused to provide his
business records. The court ordered him to answer supplemental discovery
requests for this information.
On June 4, 2021, the court again found defendant in violation of litigant's
rights for refusing to pay pendente lite support. By then, the support arrears
totaled over $58,000.
On January 28, 2022, the court again ordered defendant to pay plaintiff's
unreimbursed medical expenses. On January 31, 2022, the court found
defendant in violation of litigant's rights for not paying the unreimbursed
medical expenses and ordered payment of the maintenance and repair costs at
A-0242-23 5 the marital home and the youngest child's college tuition. On May 4, 2022, the
court found defendant in violation of its discovery orders.
Trial began in February 2023. The parties, their forensic accountants, and
defendant's employment rehabilitation expert testified.
Plaintiff's testimony detailed the characteristics of the parties' upper-class
lifestyle. Defendant was the breadwinner throughout the marriage and at sixty-
one years of age, plaintiff remained dependent on him. As a result, when
defendant fell behind on his pendente lite support payments in 2019, plaintiff
was unable to pay the monthly expenses or her attorneys, or to save money.
However, she testified defendant told her he had been saving throughout the
litigation. Plaintiff also testified she was not aware defendant had taken
$300,000 from the HELOC prior to the parties' signing the cutoff agreement.
Plaintiff admitted withdrawing $296,000 from the joint account.
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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-0242-23
CLORINDA PISANO,
Plaintiff-Respondent/ Cross-Appellant,
v.
JOHN PISANO,
Defendant-Appellant/ Cross-Respondent. ___________________________
Argued September 25, 2025 – Decided October 10, 2025
Before Judges Mawla, Marczyk, and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-0122-18.
Brian G. Paul argued the cause for appellant/cross- respondent (Szaferman, Lakind, Blumstein & Blader, PC, attorneys; Brian G. Paul, of counsel and on the briefs).
Eric S. Solotoff argued the cause for respondent/cross- appellant (Fox Rothschild, LLP, attorneys; Eric S. Solotoff, of counsel and on the briefs; Adam Wiseberg, on the briefs).
PER CURIAM
Defendant John Pisano appeals and plaintiff Clorinda Pisano cross-
appeals from an August 16, 2023 final judgment of divorce entered following a
thirteen-day trial. We affirm.
The parties were married for nearly thirty years when plaintiff filed her
complaint for divorce in August 2017, commencing this lengthy divorce
proceeding. Three children were born during the marriage. The two eldest
children were emancipated when this matter commenced and the youngest was
emancipated before trial. The parties lived an upper-class lifestyle, which
included expensive homes, cars, personalty, clothing, and vacations funded
exclusively by income from defendant's lucrative law practice. Plaintiff had not
been in the workforce for thirty years; she was a homemaker and raised the
children.
On April 26, 2017, the parties entered a cutoff agreement stipulating an
end date for the marriage for purposes of alimony and equitable distribution of
May 1, 2017. The same day, defendant withdrew $300,000 from their home
equity line of credit (HELOC), increasing the marital debt. He repaid the sum
drawn on the HELOC on May 16, 2017, after the agreed upon cutoff date.
A-0242-23 2 The parties jointly retained an appraiser to value their personal property
as of March 13, 2018. The personalty appraised for $521,077.
Numerous pendente lite orders were entered by various judges who
handled the matter prior to trial. In October 2017, defendant agreed to pay all
of plaintiff's shelter and transportation expenses, and unreimbursed medical
expenses for plaintiff and the youngest child. On October 12, 2017, the court
ordered defendant to pay plaintiff pendente lite support of $25,000 per month,
continue paying for the family memberships to two country clubs, pay off
various credit cards, and pay for housekeeping services. The court also
determined plaintiff had inappropriately withdrawn funds from a joint bank
account. She was ordered to pay $296,000 into an attorney trust account.
Plaintiff occupied the marital residence and refused to grant access to it.
As a result, on November 16, 2017, the court entered an order directing her to
arrange for landscaping and snow removal services and allow service providers
to access the residence.
During the marriage, the parties did not timely pay their taxes and did not
pay anything towards their 2017 taxes when this action was initiated. By
December 2017, defendant had paid the federal 2016 taxes in full but they still
owed $250,000 in state taxes. As a result, on December 14, 2017, the court
A-0242-23 3 reduced the pendente lite support to $10,000 per month to account for the unpaid
taxes. The court also limited defendant's personal spending to $10,000 per
month, and again ordered him to pay plaintiff's unreimbursed medical expenses.
For the 2017 taxes, defendant requested both parties execute a hold
harmless agreement, which was signed on October 11, 2018. He insisted on a
similar document for the 2018 tax obligations. When plaintiff's counsel pointed
out there were material discrepancies in the 2018 tax returns, defendant refused
to provide the documentation supporting the tax filings. Instead, he filed the
2018 tax return as a joint filing without obtaining plaintiff's approval.
On April 2 and June 4, 2018, the court again ordered defendant to pay
various outstanding credit card balances, which it originally ordered him to pay
in October 2017, and ordered him to pay nearly $14,000 in unreimbursed
medical expenses. The court denied his request for a change of venue, noting it
was an attempt to forum shop.
On July 26, 2018, plaintiff filed an emergent application to compel
defendant to pay for the youngest child's college tuition. Defendant ultimately
paid it.
On August 22, 2018, the court entered an order finding defendant violated
plaintiff's rights by not paying her unreimbursed medical expenses. On October
A-0242-23 4 18, 2018, the court ordered defendant to refrain from engaging in self-help by
taking unilateral deductions from the pendente lite support.
In 2020, the parties exchanged correspondence about repair and
maintenance issues to prepare the marital home for sale. Plaintiff claimed
structural and plumbing repairs were necessary due to pre-existing issues which
had developed since the parties built the residence decades prior. Defendant
asserted plaintiff's guests were responsible for damaging doors and workers had
damaged the gutters. In December 2021, defendant obtained an estimate for the
required repairs to the marital residence totaling $977,000.
From July 2019 through May 2022, defendant refused to provide his
business records. The court ordered him to answer supplemental discovery
requests for this information.
On June 4, 2021, the court again found defendant in violation of litigant's
rights for refusing to pay pendente lite support. By then, the support arrears
totaled over $58,000.
On January 28, 2022, the court again ordered defendant to pay plaintiff's
unreimbursed medical expenses. On January 31, 2022, the court found
defendant in violation of litigant's rights for not paying the unreimbursed
medical expenses and ordered payment of the maintenance and repair costs at
A-0242-23 5 the marital home and the youngest child's college tuition. On May 4, 2022, the
court found defendant in violation of its discovery orders.
Trial began in February 2023. The parties, their forensic accountants, and
defendant's employment rehabilitation expert testified.
Plaintiff's testimony detailed the characteristics of the parties' upper-class
lifestyle. Defendant was the breadwinner throughout the marriage and at sixty-
one years of age, plaintiff remained dependent on him. As a result, when
defendant fell behind on his pendente lite support payments in 2019, plaintiff
was unable to pay the monthly expenses or her attorneys, or to save money.
However, she testified defendant told her he had been saving throughout the
litigation. Plaintiff also testified she was not aware defendant had taken
$300,000 from the HELOC prior to the parties' signing the cutoff agreement.
Plaintiff admitted withdrawing $296,000 from the joint account. She
explained it was out of concern defendant would close the credit cards and not
pay her pendente lite support. She only wanted half of the $296,000 and
intended to shield the money from defendant.
Defendant testified he ran a solo law practice. He was almost sixty-two
years old at the time of trial.
A-0242-23 6 Defendant detailed the extensive renovations, maintenance, and
landscaping he performed, or paid others to perform, on the house during the
marriage. Regarding the taxes, he explained the parties' practice was to pay late.
The parties owed approximately $997,000 in back taxes at the time of trial.
Defendant testified plaintiff should be responsible for the debt associated
with the withdrawal from the HELOC. He explained that, in the years preceding
the divorce, he had paid down the mortgage on the marital home in lieu of paying
the state and federal taxes on time. Doing so allowed the parties to refinance
the mortgage, thereby saving them mortgage interest over time. However, he
conceded this strategy only caused the parties to accumulate tax debt. For
example, they owed over $1.6 million in taxes for 2016 alone.
In 2019, after the divorce began, defendant purchased a home in
Westfield, secured a mortgage, and began paying down the mortgage. He also
paid all the outstanding tax debt but never informed plaintiff or the court.
Defendant also admitted he spent large sums of money, which he deducted as a
business expense to pay for renovations on his Westfield home. He later sold
the home for $2 million but never disclosed it, and made large six-figure
contributions to his pension when the court was entering pendente lite orders
enforcing his pendente lite support obligation.
A-0242-23 7 On February 15, 2023, during trial, the parties entered a consent order
requiring defendant to pay $250,000 in counsel fees, without prejudice, to
plaintiff's counsel for the ongoing divorce litigation. The consent order also
established conditions for the sale of the marital residence, including selecting
the realtor and paying the commission, correcting code violations, cooperating
with the realtor, and establishing each party's right of first refusal to match any
third-party offer.
Following the trial, the parties entered another consent order on April 10,
2023. They agreed plaintiff's share of defendant's law practice was $1,100,000.
Adjusted for personalty, jewelry, an automobile, and the advance of $250,000
to plaintiff's attorney, plaintiff received a net payment of $865,750.
The trial judge issued the judgment of divorce and a detailed written
statement of reasons. The judge applied the N.J.S.A. 2A:34-23(b) alimony
factors to the facts adduced at trial. He concluded defendant's average net
income for 2013 to 2016 was $1,528,844. The judge observed, although
defendant testified "he should be entitled to slow down," he "offered no evidence
of a need to cut back." Regardless, the judge concluded this was unrealistic
within the context of a divorce. The judge "sensed [defendant] sought to
intentionally obfuscate the facts" about his income, particularly his post-
A-0242-23 8 complaint earnings. Documents related to his post-complaint earnings showed
"greater net incomes than [defendant] presented to the court."
Although plaintiff had no earned income, the judge observed she would
be receiving around $865,700 as her share of equitable distribution "and maybe
some other liquidity." Plaintiff would also receive a distribution representing
her share of the marital residence, but this distribution would be used by her to
secure a new home. Assuming a five percent rate of return on the $865,700,
plaintiff's unearned income would be $43,285, but this also assumed she did not
use the money to pay her attorney's fees.
Although defendant's employability expert testified plaintiff could work
as a teacher, the judge declined to impute more than a minimum wage to her
because plaintiff would be sixty-three years old by the time she received the
proper teacher training. He concluded plaintiff was older and too unskilled to
compete with others for a teaching job. The judge also rejected defendant's
assertion plaintiff could collect $4,000 per month in social security at sixty -two
years of age because she would only be eligible for one-half of defendant's
benefit. Requiring plaintiff to claim social security early was infeasible because
although defendant "[wa]s able to retire and end his alimony obligation, she will
need as much income as possible."
A-0242-23 9 The judge characterized the family's lifestyle as "very high-end." The
parties were once members of two country clubs, and the marital residence
covered over 14,000 square feet and had a pool, tennis court, and other
amenities. The parties owned expensive German, Italian, and British
automobiles, jewelry, and collectibles. The children attended private schools
and expensive colleges that were funded without debt. The family "shopped at
high-end stores," vacationed often, "frequented high-end New York City
restaurants. . . . In short, they spared no expense." Post-complaint, defendant
lived in a Florida home worth more than $7.7 million, which he purchased with
his pension funds.
The judge relied, in part, on the lifestyle accounting prepared by plaintiff's
expert. The parties' expenses, without the children's costs, were isolated and
quantified, and the judge's opinion explained in detail how he adjusted the
lifestyle figures.
Defendant argued the parties had not saved during the marriage.
However, the judge observed defendant had "saved a million dollars in
retirement funds since the divorce complaint[,] which he claims fortuitously
grew through investment seven or eight-fold." Defendant would reach full
retirement age for social security purposes in less than five years (fifty-seven
A-0242-23 10 months). And "[w]hile no law states or implies there must be dollar-for-dollar
savings equality, to obtain a future value of one million dollars in [fifty-seven]
months would require [plaintiff] to save approximately $12,300 per month
prospectively at [five percent]." The judge concluded the parties were
entitled to a similar lifestyle as the marital lifestyle not just for the years until [defendant] retires, which might be less than five years away, but to a lifestyle that can be sustained as much as possible into the retirement years. Otherwise they have a thirty[-]year marriage, they live well for almost five years post-judgment, and then [defendant] continues to live high off the hog while [plaintiff] relies on public assistance. That cannot possibly be what is intended by the state's alimony scheme.
The judge quantified the family's marital standard of living based on
spending at $97,239 per month. Plaintiff's needs and share of the Schedule A,
B, and C expenses totaled $43,223 per month. The judge added $1,000 per
month to this sum for health insurance plaintiff would have to purchase post -
judgment and a monthly savings component of $12,300. The grand total of
plaintiff's quantified lifestyle was $55,523 per month, which the judge reduced
by $5,070 per month, representing plaintiff's imputed earned income and
unearned income. This left an uncovered amount of $50,453 per month, which
the judge rounded down to $50,450.
A-0242-23 11 The judge opined that if defendant retired at sixty-seven, plaintiff's
lifestyle would be drastically reduced because she would have to rely on "her
investment income, . . . [and] earned income provided she ever commences
working and continues to work past her own [sixty-seventh] birthday, and
[s]ocial [s]ecurity." Her social security would be one-half of defendant's. If
defendant retired, he would no longer have an earned income, but he had more
assets, which he could liquidate, and twice the amount of social security.
Defendant could also "build up an equal amount of investment income as
[plaintiff] during the next [fifty-seven] months. He will be in better stead than
she." Given defendant's net income prior to the complaint exceeded $1,528,844
per year, the judge concluded that "paying his wife $605,400 per year in alimony
is doable and fair." Defendant had the ability to pay alimony based on his post-
complaint earnings as well.
The judge concluded both parties would be able to enjoy a standard of
living comparable to the marital lifestyle until defendant retires. "After that, it
will be difficult."
The duration of the marriage also supported an open durational alimony.
Plaintiff was healthy enough to work, and defendant adduced no evidence
A-0242-23 12 regarding his health status. The duration of the pendente lite support did not
affect the duration of the alimony.
Neither party brought any significant assets into the marriage. However,
post-complaint, defendant deposited $1.3 million into his pension and "made a
small fortune . . . resulting in the pension purchasing [his Florida home] for
$7,375,000 on February 1, 2022." The judge noted "[t]here was no evidence
presented of the pension investment, . . . no evidence [of] how [the money]
grew," nor evidence of the down payment to purchase the Florida residence, "in
spite of [p]laintiff's effort, repeatedly, to discover the information. "
The judge ordered defendant to pay plaintiff open durational alimony of
$50,450 per month. He then turned to the parties' requests for Mallamo1 credits.
The judge found plaintiff had "no significant investment from which to
produce income" pendente lite, and it was not appropriate to impute an earned
income at the outset of the case. Therefore, her pendente lite needs were
approximately $55,500 per month as calculated for alimony. However, from
2018 and throughout the lengthy pendente lite period until 2023, the judge
imputed to her an average yearly net income between $19,743 and $25,053.
Although plaintiff had a responsibility to support and pay for the youngest
1 Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995). A-0242-23 13 child's college pendente lite, the judge found defendant had paid substantial
sums for the child's education. The judge rejected plaintiff's proofs regarding
child-related expenses.
The judge detailed the amount of pendente lite support defendant paid
compared with plaintiff's spousal support needs during the pendente lite period
and concluded there was an overall deficit of $412,037.50. However, this did
not entitle plaintiff to a Mallamo credit because the judge then detailed the
"exorbitant" expenses defendant paid for the youngest child. Based on the
evidence presented, the judge surmised defendant may have paid $492,000 for
the youngest child "during the pendente lite period, and even thousands more
for [her] and her siblings." In addition, defendant paid the youngest child's share
of the Schedule A, B, and C expenses, which the judge found "heavily" favored
defendant. Defendant also paid plaintiff's share of the credit card debt exceeding
$33,423, which further factored into the pendente lite expenses.
Although the judge was "unable to conduct exact math, [he was] confident
that while [defendant] has not overpaid support, neither has he underpaid. . . .
The proofs [were] simply insufficient to order otherwise." Therefore, the judge
denied both parties' requests for a Mallamo adjustment.
A-0242-23 14 The judge turned to the equitable distribution and applied the facts he
found to the N.J.S.A. 2A:34-23.1 factors, which we need not repeat here.
Regarding the parties' assets, the judge began with the former marital home and
observed that even though the parties had entered a consent order controlling
the process for sale of the home, defendant's aim was to keep it. Although
plaintiff argued defendant tried to sabotage the sale, the judge "decline[d] to
speculate as to what [defendant]'s interference, if there was any, cost the parties
in terms of market value, putting aside . . . the lack of maintenance."
The parties did not dispute the mortgage debt on the marital residence.
The point of contention was the HELOC defendant drew from near the agreed
upon cutoff date. The judge concluded the HELOC transactions were suspicious
and rejected defendant's testimony about the reasons for accessing the line of
credit. He concluded the debt on the residence for equitable distribution
purposes totaled $1,094,779.10, representing $1,000,000 for the mortgage and
$94,779.10 for the HELOC.
The judge next addressed the marital home's state of disrepair. He found
"[d]efendant's attempts to cast blame on [p]laintiff [in this regard were]
disingenuous." Defendant had access to the property, and the onus was on him
to make the necessary repairs. However, because defendant
A-0242-23 15 wanted to buy out [p]laintiff's interest, [he] has attempted throughout the litigation to minimize the house value and . . . he intentionally allowed maintenance issues to slide so he could claim the house needed $1,000,000 in maintenance and repairs to bring it up to snuff, thereby lowering the value and . . . reducing what he would have to pay [plaintiff].
The judge detailed the problems with the home and although they could
be fixed as the parties had done during the marriage, it was defendant's strategy
not to make them to "undermine a fair market value sale to a third party so he
[could] steal equity from [plaintiff]." The judge concluded defendant was acting
in bad faith. As a result, when the home sold or when defendant matched a third-
party offer, the sale price would be reduced by $1,094,779.10 and the net value
distributed equally between the parties except that from defendant's half,
$250,000 would be paid to plaintiff. "The $250,000 is an adjustment for
[d]efendant's bad faith as there is no way the court would be able to quantify the
loss in marketability due to his shenanigans[,] which the court deems
intentionally manipulative."
The judge ruled defendant's Westfield property was exempt from
equitable distribution because it was purchased post-cutoff. However, he noted
the residence had been sold prior to the last few days of trial and defendant never
disclosed it. Defendant's "misdirection in this regard is consistent with his
A-0242-23 16 practice before the court of not being forthright." Related to the savings issue,
the judge observed defendant "performed tens of thousands of dollars of
construction/renovations on the Westfield property" and deducted the
renovations as business expenses for tax purposes.
The judge also found defendant's Florida residence exempt from equitable
distribution as a post-cutoff asset. Defendant claimed he purchased the
residence using his exempt pension funds but failed to provide proof. The judge
rejected plaintiff's argument the home was not exempt because there were "no
other known [marital] assets at the cut[-]off date [that] could possibly have been
the source of the down payment." Although the purchase of the home was
evidence defendant exceeded the $10,000 monthly spending limit imposed on
the parties pendente lite, the judge reasoned he had "afforded [plaintiff] her due"
in the alimony and Mallamo decisions, "meaning [defendant's] post-[complaint]
income could be used on this asset and remain exempt."
Defendant failed to disclose the Florida property on any of his case
information statements (CISs). Although plaintiff also failed to disclose an asset
on her CISs, the judge found defendant's conduct was driven by a combination
of carelessness and intentionality. Defendant's clear "goal throughout was to
minimize his assets and income to cheat his wife out of an appropriate alimony
A-0242-23 17 award and an equitable distribution of property." He never answered discovery
requests regarding the pension he claimed funded the purchase of the home.
Although defendant complained about not having enough money, the judge
observed he owned "three-multimillion-dollar homes and upgrad[ed] his Ferrari
while temporarily buying an Aston Martin."
The judge addressed the value of the parties' bank accounts, automobiles,
personalty, and collectibles. Plaintiff argued she sold collectibles pendente lite
to pay her expenses because defendant was either late or short in paying
pendente lite support. Thus, the judge did not need to equitably distribute the
collectibles. The judge rejected her argument, noting she had received full
pendente lite support and permitting her to keep the proceeds would be unjust.
He established a mechanism for valuing and distributing this property.
The judge was unable to definitively determine the marital portion of the
credit card debt because the parties did not provide the requisite proofs.
However, the judge noted he used defendant's obligation to pay for the pre-
cutoff credit card debt "as part of the calculus in finding he had paid substantial
sums pendente lite limiting his Mallamo obligation."
Defendant claimed the judge should also distribute the 2016 and 2017 tax
debt between the parties. The judge found the parties' practice of paying taxes
A-0242-23 18 late was "all driven by [defendant] with [plaintiff,] the acquiescent party."
Defendant's "gambit to pay taxes in the spring of 2017 was for no purpose other
than to beat his own cut[-]off date by drawing from the HELOC to deprive his
wife of as much equitable distribution as he could." The judge declined to make
plaintiff bear the 2016 or 2017 tax liability because her share of the burden was
satisfied by the fact alimony was calculated using net incomes.
The tax deficiencies for the years preceding 2016 were marital debts and
the judge divided them equally. For the years following 2017, defendant sought
a credit for plaintiff's failure to file joint returns. However, the judge noted
defendant had in fact filed joint returns in 2018 and 2019, even though plaintiff
"never signed or authorized her signature on those returns."
The judge addressed other minor credits plaintiff sought for pendente lite
arrears, $5,000 of the HELOC funds defendant took for himself but did not
account for, and the youngest child's expenses. He credited her with one-half of
the arrears, reasoning that the other half was accounted for by the fact she had
not contributed her fair share to the youngest child's expenses. He also awarded
her half of the escrowed funds.
Both parties requested counsel fees. The judge applied the Rule 5:3-5(c)
and RPC 1.5 factors to the facts.
A-0242-23 19 The judge found that after alimony is paid, both parties had the ability to
bear their fees. He concluded defendant was unreasonable in his efforts to avoid
paying plaintiff her share of his law practice and the marital lifestyle. In addition
to the expensive homes, cars, and personalty under defendant's control,
defendant's post-complaint lifestyle included several vacations, domestic and
international, and expensive gift purchases. He found "[d]efendant put aside
approximately $1.3 million dollars in pension funds over a four-year period post
complaint. Yet he constantly begrudges his wife's lifestyle even distantly,
approaching his own. That is bad faith."
Defendant also acted unreasonably when claimed he was entitled to
attorney's fees as a pro se litigant, contrary to law. "[H]e finally conceded [the
issue], but only after exhausting [p]laintiff with his insistence, running up legal
fees."
Plaintiff was not blameless. Prior to the divorce trial, a different judge
conducted a seven-day hearing about expensive jewelry pieces plaintiff claimed
were lost or missing. That judge found plaintiff's testimony was not credible
and ultimately concluded she had possession of the items. The judge also found
defendant was no better because he was combative and his testimony
inconsistent.
A-0242-23 20 The divorce trial was no different. Defendant was "difficult" and made
derogatory remarks about the judges who had presided in the case, including a
judge who attempted to mediate the divorce, which we need not repeat here.
Defendant was self-represented for a portion of the trial. He interrupted
witnesses and would "blurt out inappropriate exclamations of pretended shock,
and demonstrably gesticulate his frustration, disgust, or shock—little of which
the [judge] observed to be genuine." As a witness, defendant refused to answer
questions directly and "would instead pontificate his own agenda." Defendant
would "stomp[] off the witness box . . . to speak with co-counsel or retrieve
documents without even requesting leave of court. . . . More than once
[defendant] answered his cell phone while he was in the witness box to conduct
business . . . ." The judge found "[h]is conduct protracted the trial
exponentially. . . . [H]e pressed non-meritorious claims and contentions[,] . . .
did not display candor with the court or his adversary[, and] failed to disclose
material facts."
The trial judge also painstakingly reviewed the orders, which had been
entered prior to the trial. He listed no less than thirty-seven instances in which
one or both parties had either acted unreasonably or had violated an order.
Specifically, plaintiff shared the blame for the misconduct on at least fourteen
A-0242-23 21 occasions and defendant on at least twenty-seven occasions. Both parties used
self-help.
The judge found there was nothing novel about the parties' case. It had
become "protracted principally because [defendant] sought to pay [plaintiff] less
than she was entitled to in support and sought to deny her an equitable share of
assets while shifting to her an inordinate amount of debt."
The judge concluded both parties bore some of the fault, but defendant's
conduct was "substantially more egregious" because he failed to stay within the
$10,000 monthly budget set for him by the court. "[H]is expenses exponentially
exceeded the cap. Yet he endlessly maintained he complied. Plaintiff regularly,
with great expense, was forced to pursue discovery from [d]efendant."
Defendant unnecessarily moved to transfer venue. "Constantly[,] orders were
issued respecting support arrears, failure to pay credit cards, failure to pay [the
youngest child's college] expenses . . . and otherwise, failure to pay
unreimbursed medical expenses." Defendant violated civil restraints entered
between the parties more than once. His emergent motions and motions for
reconsideration were rejected. Defendant violated court orders, the mediation
privilege, and "filed a nonsense motion for summary judgment as to the quantum
of marital debt." He advanced "specious arguments" and motions.
A-0242-23 22 After adjustments, the judge found plaintiff had been billed attorney's fees
of $816,702.16 and paid $475,799.04. Defendant had been billed $249,379.63
and as best as the judge could surmise, he paid $153,742.49.
The judge concluded the $325,000 defendant paid plaintiff as an advance
for counsel fees without prejudice would be converted into a with-prejudice
payment. Plaintiff would be responsible for the remainder of her fees , and
defendant would be responsible for all his fees without a contribution from her.
The judge ordered the parties to bear the personalty appraiser's fees
equally. Each party would be responsible for their forensic accounting expert's
fees. The judge reiterated this was because "with alimony, the [c]ourt sought to
place [plaintiff] on an equal footing with [defendant]."
I.
"[F]indings by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998). "We do not weigh the evidence, assess the credibility of witnesses,
or make conclusions about the evidence." M.G. v. S.M., 457 N.J. Super. 286,
293 (App. Div. 2018) (quoting Mountain Hill, LLC v. Twp. of Middletown, 399
N.J. Super. 486, 498 (App. Div. 2008) (internal quotation marks omitted)). This
is because the Family Part has "special jurisdiction and expertise in family
A-0242-23 23 matters," which often requires the exercise of reasoned discretion. Cesare, 154
N.J. at 413. If we conclude there is satisfactory evidentiary support for the trial
judge's findings, our "task is complete and [we] should not disturb the result."
Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146,
161-62 (1964)).
"Deference is especially appropriate 'when the evidence is largely
testimonial and involves questions of credibility.'" Cesare, 154 N.J. at 412
(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Our
deference is required in this respect because the trial judge "hears the case, sees
and observes the witnesses, [and] hears them testify," affording them "a better
perspective than a reviewing court in evaluating the veracity of witnesses." Ibid.
(alteration in original) (internal quotation marks omitted) (quoting Pascale v.
Pascale, 113 N.J. 20, 33 (1988)).
We do not "accord the same deference to a trial judge's legal
determinations. Rather, all legal issues are reviewed de novo." Ricci v. Ricci,
448 N.J. Super. 546, 565 (App. Div. 2017) (citation omitted) (citing Reese v.
Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)). "[L]egal conclusions, and
the application of those conclusions to the facts, are subject to our plenary
A-0242-23 24 review." Reese, 430 N.J. Super. at 568 (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
II.
A.
On appeal, defendant argues the judge erred when he included the $12,300
as a monthly savings component in the alimony award because savings were not
a part of the marital lifestyle and the alimony award, without the savings
component, already captured the lifestyle. He asserts the judge committed a
mistake of law when he awarded a sum greater than the marital lifestyle and
ignored Crews v. Crews, 164 N.J. 11 (2000) and its progeny, including S.W. v.
G.M., 462 N.J. Super. 522 (App. Div. 2020).
Defendant asserts the $12,300 was based on speculation, namely, that he
would retire at age sixty-seven, yet there was no evidence to support this
conclusion. Even if defendant were to retire, the Legislature already fashioned
a remedy and a process for evaluating whether alimony should continue,
terminate, or be modified in N.J.S.A. 2A:34-23(j).
Family Part judges have broad discretion to make alimony determinations.
See Martindell v. Martindell, 21 N.J. 341, 355 (1956). "In reviewing an alimony
A-0242-23 25 award, we typically defer to the trial judge's findings and reverse only where
there is an abuse of discretion." S.W., 462 N.J. Super. at 530.
"[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, 164 N.J. at 16.
"The standard of living during the marriage is the way the couple actually lived,
whether they resorted to borrowing and parental support, or if they limited
themselves to their earned income." Hughes v. Hughes, 311 N.J. Super. 15, 34
(App. Div. 1998).
Alimony is "a right arising out of the marriage relationship to continue to
live according to the economic standard established during the marriage as far
as economic circumstances will allow." Aronson v. Aronson, 245 N.J. Super.
354, 364 (App. Div. 1991); see also Crews, 164 N.J. at 16, 27 (stating the court
shall consider the parties' need for new residences, increase in expenses
associated with both parties maintaining a standard of living "reasonably
comparable to the standard of living [established] during the marriage"). Thus,
alimony is neither a reward nor a punishment and is not a windfall for the party
who receives it. Aronson, 245 N.J. Super. at 364.
A-0242-23 26 The marital lifestyle is important and is the measure used to establish
alimony. S.W., 462 N.J. Super. at 532-33. The court must consider how the
parties actually lived, calculate the amount of money associated with the
lifestyle, and then apportion the lifestyle figures and numbers to the supported
spouse. Id. at 532; see also Weishaus v. Weishaus, 360 N.J. Super. 281, 290-91
(App. Div. 2003), rev'd in part on other grounds, 180 N.J. 131, 181 (2004)
("[T]he court [should consider] marital residence, vacation home, cars owned or
leased, typical travel and vacations each year, schools, special lessons, and
camps for [the] children, entertainment (such as theater, concerts, dining out),
household help, and other personal services.").
However, lifestyle is not the end of the inquiry. Crews held that "[i]n
contested divorce actions, once a finding is made concerning the standard of
living enjoyed by the parties during the marriage, the court should review the
adequacy and reasonableness of the support award against this finding." 164
N.J. at 26 (emphasis added). The court must always consider what is equitable.
Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div. 2004). An alimony award
is not fixed by finding the lifestyle alone because there are other considerations.
The Legislature acknowledged these principles when it said the Family
Part may award such alimony "as the circumstances of the parties and the nature
A-0242-23 27 of the case shall render fit, reasonable and just." N.J.S.A. 2A:34-23. Although
marital lifestyle is key, the alimony statute requires the court to consider thirteen
other factors. Here, the judge found the following factors relevant to the
alimony amount:
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
....
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
A-0242-23 28 (10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party;
(13) The nature, amount, and length of pendente lite support paid, if any; and
(14) Any other factors which the court may deem relevant.
[N.J.S.A. 2A:34-23(b).]
Having considered the entire record under the unique circumstances of
this case, we conclude none of these factors, which the trial judge's opinion
addressed, militated against the award of the additional $12,300 per month to
plaintiff. There is no dispute the judge followed Crews and S.W. in deriving the
$38,150 as the base alimony award. After reviewing the record and the judge's
findings, we are convinced he awarded the $12,300 because he was satisfied the
evidence, including but not limited to defendant's post-cutoff spending, the
source of which was largely unsubstantiated, showed he had a far greater
"opportunity for future acquisitions of capital assets and income," N.J.S.A.
2A:34-23(b)(8), while plaintiff did not.
A-0242-23 29 At oral argument, defendant asserted plaintiff's reliance on N.J.S.A.
2A:34-23(b)(8) was an argument first made on appeal rather than a finding by
the judge. Preliminarily, we note we review orders, not opinions. Do-Wop
Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) ("[I]t is well-settled that
appeals are taken from orders and judgments and not from opinions . . . or
reasons given for the ultimate conclusion.").
Regardless, the record dispels defendant's claim. This issue had been
roiling the waters virtually from the onset of the litigation. On November 29,
2017, plaintiff filed a certification in opposition to defendant's motion for
pendente lite support, complaining about how inequitable it was for him to
"retain[] nearly $80,000 per month in net cash flow" while she had "no ability
to save for the future/[her] retirement, which is a critical issue given the absence
of any such retirement assets in [the] marital estate." In September 2021,
plaintiff filed a motion to enforce litigant's rights and certified to the parties'
disparate financial circumstances, noting defendant had managed to save
$728,165 for retirement during 2019 and 2020.
On May 4, 2022, the court entered an order adjudicating another round of
pendente lite motions, including plaintiff's request for an increase in pendente
lite support. Its findings noted plaintiff argued for the increase because
A-0242-23 30 defendant was "saving hundreds of thousands of dollars a year . . . [and] the
parties are approaching retirement age[,] so retirement is a heightened concern."
The court correctly concluded "[w]hile savings may not have been normal
during the marriage, the requirement to maintain the marital lifestyle is not rigid
and recognizes that the parties' circumstances will change as they go through
life."
We are unconvinced the trial judge did not consider N.J.S.A. 2A:34-
23(b)(8) or that his finding regarding the $12,300 was an invention unsupported
by the record. The judge's opinion was replete with findings of how defendant's
lifestyle would be virtually unaffected by the divorce, while plaintiff's would be
the opposite. For example, unlike defendant, plaintiff would be unable to
acquire a home like the marital residence. While plaintiff's needs will
undoubtedly be met, the judge's finding is supported by substantial credible
evidence in the record that the asset acquisition necessary to maintain plaintiff's
lifestyle after defendant retires, would not be feasible without her ability to save.
A savings component allows the recipient of alimony to accumulate
savings for the day when alimony ends, due to the former spouse's death or a
change in circumstances. Davis v. Davis, 184 N.J. Super. 430, 437 (App. Div.
1982); see Khalaf v. Khalaf, 58 N.J. 63, 70 (1971) (allowing for savings
A-0242-23 31 component in an alimony award); see also Jacobitti v. Jacobitti, 135 N.J. 571,
576 (1994) (permitting the former wife to accumulate reasonable savings). In
Lombardi v. Lombardi, we explained that "[a]n appropriate rate of savings . . .
can, and in the appropriate case should, be considered as a living expense when
considering an award of . . . maintenance." 447 N.J. Super. 26, 38 (App. Div.
2016) (second and third alterations in original) (internal citation and quotation
marks omitted). This is because "it is not equitable to require [a] plaintiff to
rely solely on the assets she received through equitable distribution to support
the standard of living while [the] defendant is not confronted with the same
burden." Id. at 40. Equitable distribution is in addition to an alimony award.
Ibid.
We have little doubt plaintiff will need to deplete her equitable
distribution to provide for herself as defendant's retirement approaches. The
judge's findings indicate as much, given the specter of defendant's retirement.
We also reject defendant's assertion the judge speculated about his intent
to retire. Setting aside the judge's amply supported findings that defendant
sought to avoid paying alimony, defendant moved to Florida in 2022, and
testified he wanted to "slow down" and not work as much.
A-0242-23 32 The record contains corroborative evidence, namely, defendant's
certification dated March 23, 2022, in opposition to a cross-motion filed by
plaintiff. In it he certifies he "worked like a dog for far too long." He states: "I
have a right to stabilize my finances in anticipation of retirement. . . . I have a
right to plan for retirement, like all sixty-one-year-olds." And that "[h]ard work
and grit [had] steered [him] to the next stage of life . . . in Florida." The trial
judge did not speculate about defendant's retirement.
We also reject defendant's argument the savings component of the
alimony was inconsistent with N.J.S.A. 2A:34-23(j)(1). Nothing in N.J.S.A.
2A:34-23(j)(1) restrains the Family Part's ability to consider that its award of
open durational alimony may be impacted by a party's retirement soon after the
award is made. That is why the Legislature requires consideration of the parties'
ages when alimony is established. N.J.S.A. 2A:34-23(b)(3). The same holds
true for N.J.S.A. 2A:34-23(b)(8), which also measures time in the form of "the
opportunity for future acquisitions of capital assets and income."
Along these lines, defendant's reliance on Boardman v. Boardman is
misplaced. 314 N.J. Super. 340 (App. Div. 1998). There, we vacated the trial
court's ruling that alimony would automatically terminate upon the payor's
retirement or the payee's cohabitation. Id. at 345-46. We observed that the
A-0242-23 33 payee's "financial dependence will not automatically terminate when [the payor]
stops working. Nor will [the payor's] ability to pay. Any modification should
abide the event, especially here, where the supporting spouse is many years
away from normal retirement age." Id. at 346-47.
The facts here are different from Boardman. The Boardman trial judge
did not consider the marital lifestyle or the payee's medical needs, and imputed
an unrealistically high income to the payee. Id. at 345. Here, the opposite
occurred. The judge thoroughly analyzed the marital lifestyle and the parties'
needs.
The parties in Boardman were married for twenty-three years but were in
their mid-forties at the time of the divorce and had three children who were not
yet teenagers. Id. at 343. Here, the parties are older, with retirement on the
horizon, and their children's expenses were no longer a factor, permitting the
judge to readily identify the proper alimony amount.
Boardman also operated under a different legal rubric. Prior to the 2014
alimony reforms, the law established that "in certain circumstances, good faith
retirement at [full retirement] age . . . may constitute changed circumstances for
purposes of modification of alimony and . . . a hearing should be held to
determine whether a reduction in alimony is called for." Id. at 346 (third
A-0242-23 34 alteration in original) (quoting Silvan v. Sylvan, 267 N.J. Super. 578, 581 (App.
Div. 1993)). N.J.S.A. 2A:34-23(j)(1) changed the law and now provides for a
rebuttable presumption that alimony shall terminate when the obligor reaches
full retirement age, unless the court finds the presumption has been overcome
after considering the factors set forth in N.J.S.A. 2A:34-23(j)(1)(a)-(k).
We also reject defendant's argument the $12,300 was a form of deferred
equitable distribution disguised as alimony. Nothing in the judge's findings
indicates he saw this figure as a form of equitable distribution. The judge's
reference to the sums defendant was able to save was merely to point out a
savings capability, which plaintiff simply did not have. Defendant's failure to
inform the court and plaintiff he had satisfied the taxes in 2019 stunted plaintiff's
ability to save during the five years of litigation by seeking an increase in
pendente lite support. This was not an attempt to make an equitable distribution
of post-cutoff earnings or equalize income or assets. Thus, the award of the
savings component to secure plaintiff's future was not an abuse of discretion.
B.
On the cross-appeal, plaintiff argues the judge erred when he did not
award her a Mallamo credit for the underpayment of pendente lite support,
which the court quantified at $451,429. She asserts the judge speculated when
A-0242-23 35 he found defendant had paid $492,000 in pendente lite expenses for the youngest
child, which erased the Mallamo credit. Even if the $492,000 was correct,
plaintiff's one-half share was $246,000. Therefore, she should have received a
Mallamo credit of at least $206,000, reflecting approximately $40,000 of her
prior payments for the youngest child.
In analyzing a request for a Mallamo adjustment, a court must consider
whether the amount of pendente lite support paid "was consistent with the
marital lifestyle." Slutsky v. Slutsky, 451 N.J. Super. 332, 369 (App. Div.
2017). "Any changes in the initial orders rest with the trial judge's discretion"
and are therefore reviewed by us for an abuse of discretion. Id. at 368.
Although the trial judge found defendant's pendente lite support payments
were short by $451,429, defendant had paid: plaintiff's credit card debt of
$39,391.47; the youngest child's high school and college tuitions, and expenses
through May 2022, totaling $343,750; sixty-seven months of the child's health
insurance, totaling $33,500; unreimbursed medical expenses of $81,606; and
sports and extracurricular activities of $33,000. The grand total of the pendente
lite expenses paid for the youngest child was $492,000.
Although plaintiff claimed she paid approximately $40,000 in college
expenses, her evidence did not substantiate that claim. Some expenses were
A-0242-23 36 charged to a credit card and could not be tied to the child's costs. Plaintiff also
claimed she deposited funds into the child's bank account but presented no
objective evidence to corroborate her testimony. The evidence supports the
judge's finding that, even if plaintiff paid the amounts she claimed, "in no reality
do these expenses approach her obligation" to pay for half of the child's
expenses.
Plaintiff's argument for the Mallamo credit ignores the amounts defendant
paid for the youngest child, the income imputed to plaintiff, and the money she
owed defendant for payment of past-due taxes. The judge's calculation of the
amounts paid by defendant is supported by the objective evidence in the record.
The judge subtracted the $246,000 plaintiff owed for the child's expenses
from the $412,037.50 in outstanding pendente lite support defendant owed,
which yielded $166,037.50 due to plaintiff. However, the judge adjusted the
$166,037.50 by the net income imputed to plaintiff of approximately $135,039
after taxes for 2018 to 2023. The judge then subtracted $135,039 from
$166,037.50, which resulted in an approximate balance of unpaid pendente lite
support in the amount of $30,998.50.
The judge then found defendant paid approximately $300 for the youngest
child's college books, $5,000 for her rent and utility expenses, and $2,200 for
A-0242-23 37 gasoline and credit card charges. This reduced the unpaid pendente lite support
to $23,498.50. The judge also noted plaintiff owed defendant $33,423.03 "for
her share of the income [taxes] for 2005, 2006, 2007, and 2014." Defendant also
paid for the décor of the child's off-campus apartment, cell phone, additional
college expenses, meal plan, and commuter plan. Although he did not assign a
dollar figure to these items, the judge's calculations showed defendant had paid
more than his share of the obligation.
Given the lack of support for plaintiff's claims and the evidence
supporting the judge's findings regarding the youngest child's expenses, the
judge validly concluded the sums paid by defendant for the youngest child were
more than the amount owed to plaintiff. The denial of the Mallamo credit was
not reversible error.
III.
Defendant argues the judge violated equitable distribution principles
when he enhanced the equity of the marital residence while assigning the burden
of the 2016 joint tax liabilities to him. He claims the judge penalized him for
paying down the mortgage and increasing the equity in the marital residence in
lieu of paying taxes. The judge did not acknowledge the connection between
A-0242-23 38 the mortgage debt paydown and the resulting tax liabilities, which resulted in an
unjust equitable distribution.
Defendant also argues the judge contradicted a pendente lite order when
he awarded plaintiff a $250,000 credit for the devaluation of the marital
residence caused by his neglect. On cross-appeal, plaintiff asserts she should
have received a $500,000 credit based on defendant's own proofs, which showed
the home needed $1,000,000 worth of repairs.
Family Part judges have broad discretion to allocate assets in equitable
distribution. Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012) (citing
Steneken v. Steneken, 367 N.J. Super. 427, 435 (App. Div. 2004)). The breadth
of this discretion also includes the allocation of debt. See Monte v. Monte, 212
N.J. Super. 557, 566-67 (App. Div. 1986).
An equitable distribution does not mean an equal distribution. Rothman
v. Rothman, 65 N.J. 219, 232 n.6 (1974). In certain instances, "it may not be an
abuse of judicial discretion to divide the assets of the parties equally without
requiring them to share the debts." Monte, 212 N.J. Super. at 567. N.J.S.A.
2A:34-23.1 "requires an equitable distribution be 'designed to advance the
policy of promoting equity and fair dealing between divorcing spouses.' This
policy is best implemented by evaluating the facts and evidence associated with
A-0242-23 39 each asset." M.G., 457 N.J. Super. at 295 (internal citation omitted) (quoting
Barr v. Barr, 418 N.J. Super. 18, 45 (App. Div. 2011)). Our review is confined
to whether the decision was based on the sufficient, credible evidence in the
record, and if it considered the controlling legal principles. Id. at 294.
The equitable distribution of the 2016 tax debt and the equity in the marital
residence was not reversible error. The evidence supports the judge's finding
that the parties' method of paying the taxes late was driven exclusively by
defendant. His aim was to pay the 2016 taxes by using the HELOC before the
cutoff date to deprive plaintiff of equitable distribution by encumbering the
marital residence and then repaying the HELOC following the cutoff. The
record shows defendant had $2 million at his disposal, which he did not use to
pay the taxes. Under these circumstances, it was not erroneous to require
defendant to bear the debt while shielding plaintiff from the loss of equity.
We reject the parties' arguments relating to the $250,000 credit to plaintiff
on account of the marital residence's devaluation due to its state of disrepair.
Both parties had a hand in the dilapidation of the residence, with defendant
bearing greater responsibility.
A-0242-23 40 Pendente lite, defendant was ordered to pay the maintenance and repair
costs for the marital home, while plaintiff, as the home's occupant, was to
arrange for certain services and refrain from preventing service providers from
accessing the home. This order mirrored the evidence that during the marriage
defendant oversaw the home maintenance. However, defendant also wanted to
buy out plaintiff's interest in the home. He resisted a pendente lite sale of the
residence and at trial testified he wanted to purchase the home.
With this as the background, the evidence also showed that during the
divorce, defendant attempted to devalue the home by not addressing its
maintenance problems. The judge's findings that defendant acted intentionally
are supported by the record. Contrary to defendant's arguments on appeal, the
repairs needed were more profound than landscaping, gutter cleaning, and dead
insect removal, which arguably could be ascribed to plaintiff.
Plaintiff testified the home required substantial foundation, structure, and
masonry repairs, which were long-term issues not caused by her pendente lite
neglect. Her testimony was supported by an estimate defendant obtained,
showing nearly $1 million in necessary repairs, including: $200,000 for the
patios, walkways, retaining walls, and railings; $100,000 for rotted doors and
windows; $150,000 for roofing and gutters; $50,000 for the foundation repairs;
A-0242-23 41 $75,000 for new heating and air conditioning; $25,000 for plumbing; $40,000
for flooring; $30,000 for bedroom construction costs; $20,000 for window
adjustments; $60,000 to repair the tennis court; $172,000 to repair lighting, the
structure of an adjacent cottage, electrical work, and the well-piping system; and
$50,000 for landscaping.
We reject defendant's assertion the condition of the marital residence was
attributable to plaintiff's violation of the November 16, 2021 pendente lite order.
That order said: "Plaintiff SHALL directly arrange for all landscaping/snow
removal services for the marital property. Plaintiff SHALL ensure that the
landscaping/snow removal service providers have access to the
landscaping/snow removal equipment at the marital home." The order did not
assign plaintiff with responsibility for maintenance of the home's exterior. Nor
could it, given the parties' historical roles in caring for the home.
We discern no abuse of discretion in the $250,000 credit to plaintiff for
the devaluation of the marital residence and reject both parties' arguments that
the figure was either too low or arbitrarily determined and therefore excessive.
The evidence amply supports the judge's finding defendant attempted to lower
the value of the residence and make it unappealing to buyers. However, the
evidence also shows the state of the residence was not entirely attributable to
A-0242-23 42 defendant and instead was also the product of long-term wear and tear,
defendant's intentional neglect, and plaintiff's failure to robustly address her
obligations for the landscaping.
Having considered the judge's decision in light of the record, it is clear to
us the $250,000 accounted for defendant's misconduct and dissipation of the
value of the marital residence, while simultaneously accounting for plaintiff's
role in the neglect and normal repairs. This ruling was a sound exercise of the
judge's broad discretion.
IV.
Finally, plaintiff argues the judge should have awarded her more in
counsel fees given his finding defendant had acted in bad faith. She asserts the
judge overlooked other instances of defendant's bad faith and more was required
than re-designating the without-prejudice pendente lite advance of $325,000
from defendant as a with-prejudice payment. Although the judge addressed the
factors for an award of counsel fees, plaintiff claims he did not properly consider
the parties' respective financial circumstances, namely, defendant's continued,
considerable wealth and her indebtedness to her attorneys.
The award of counsel fees and costs in matrimonial actions rests in the
sound discretion of the trial court. Williams v. Williams, 59 N.J. 229, 233
A-0242-23 43 (1971). Where the judge follows the caselaw, statutes, rules, and makes
appropriate findings of fact, the fee award is entitled to deference. Yueh v.
Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000). We will disturb a counsel fee
determination "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)
(quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)), or "a clear error in
judgment." Tannen v. Tannen, 416 N.J. Super. 249, 285 (App. Div. 2010). The
essence of deferring to a trial court's reasoned findings means we should not
interfere, even if we "might have reached a different conclusion were [we] the
trial [court]." State v. Locurto, 157 N.J. 463, 471 (1999).
There is no doubt defendant's misconduct stood out from plaintiff's role
in contributing to this prolonged litigation. However, the judge's bad faith
findings relating to defendant concerned specific instances for which he
compensated plaintiff. This proper exercise of the judge's discretion is
demonstrated by the fact that he did not allow defendant's misconduct in certain
instances to color his view of the case altogether or lose sight of plaintiff's lack
of credibility and misdeeds. The counsel fee determination was neither a clear
abuse of discretion nor an error in judgment.
Affirmed.
A-0242-23 44
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Cite This Page — Counsel Stack
Clorinda Pisano v. John Pisano, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clorinda-pisano-v-john-pisano-njsuperctappdiv-2025.