NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3865-21
DANIELA SIMMONS,
Plaintiff-Respondent,
v.
KURT SIMMONS, JR.,
Defendant-Appellant. ________________________
Submitted December 12, 2024 – Decided January 17, 2025
Before Judges Natali, Walcott-Henderson and Vinci.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No, FM-03-0739-20.
Kurt Simmons, Jr., appellant pro se.
Law Offices of Thomas J. Hurley, LLC, attorneys for respondent (Thomas J. Hurley, on the brief).
PER CURIAM
Defendant Kurt Simmons, Jr., appeals from the provisions of a May 9,
2022, amended dual final judgment of divorce (DJOD) entered after trial. He contends the court committed error when establishing his alimony obligations
to plaintiff, Daniela Simmons, and in its child support calculations. He further
argues the court mistakenly failed to enforce an agreement outlining the parties'
relative responsibilities for childcare expenses during the litigation and erred in
equitably distributing the parties' assets. Defendant also maintains the court
conducted the proceedings unfairly and was biased against him. Finally,
defendant challenges the court's July 1, 2022, order denying his reconsideration
application.
With the exception of the court's error in valuing two of the parties' bank
accounts, we reject all of defendant's arguments. We accordingly affirm in part
and reverse in part and remand solely for the court to correct the value of the
disputed bank accounts and amend the equitable distribution award.
I.
We recount only those portions of the record necessary to resolve the
limited issues before us. The parties married on August 13, 2010, and have two
children, now ten and fourteen years old. The family lived together in a home
secured by a joint mortgage until their separation in December 2019.
Plaintiff, who has an advanced degree, worked as a public school teacher
during the marriage, with the exception of two absences of four months each
A-3865-21 2 when she gave birth to the children. At the time of trial, plaintiff's contract
provided for a base salary, plus a longevity bonus, and her 2019 and 2020 W-2
forms revealed gross annual incomes of $67,124 and $75,554, respectively. She
also provided her most recent paystubs, from which the court calculated an
annual income of approximately $87,900.
Defendant worked as a certified public accountant and became a partner
at his then-current firm in June 2017. Unlike plaintiff, he failed to provide his
most recent tax returns at the time of trial, but the parties' joint return from 2018
established he earned $318,583 in partnership income from his firm, and his
final paystubs from 2019 and 2020 reflected annual incomes of $314,850 and
$279,921, respectively. He moved to a new accounting firm in June 2021 as a
partner and anticipated earning approximately $300,000 per year going forward.
As to the parties' standard of living, defendant testified during the
marriage the family ordered out for pizza once a week but did not otherwise
dine out, and shopped for clothing at "basic stores," though plaintiff recalled
having dined out more frequently. The children attended public school and
participated in several activities, including swimming, soccer, and acting. The
family went on several vacations together, including to Georgia, Disney World,
Turks and Caicos, the Dominican Republic, and Mexico. In the end, the parties'
A-3865-21 3 case information statements showed similar estimates of monthly expenses for
the joint marital lifestyle—$18,082 in defendant's, and $18,968 in plaintiff's.
The parties separated in December 2019 following a verbal altercation and
filed temporary restraining orders (TROs) against each other. They soon
dismissed the TROs in favor of a civil restraints agreement which provided, in
part, that the parties would share joint legal and physical custody of the children,
and, as discussed in further detail below, neither would pay support to the other
but would equally share responsibility for the children's expenses.
The agreement further provided for a "nesting arrangement," whereby
the children would continue to reside in the marital residence, and plaintiff and
defendant would each alternately live there half the time on a set schedule. But
the parties adhered to that arrangement for only about eleven days before
plaintiff moved out and established her own residence. Defendant testified at
trial he had made all mortgage payments on the former marital residence since
the filing of the divorce complaint and represents on appeal he continues to
live there.
Both parties testified at trial, and the court found both to have been only
"partially credible." It observed, while both "testified in an organized, clear,
and straight-forward manner" on direct examination, their demeanors changed
A-3865-21 4 on cross. In particular, the court found plaintiff's responses were sometimes
"snarky," and she often had to acknowledge errors or omissions in some of her
prior testimony or certifications. The court found defendant was able to recall
many specific details without any need to refresh his memory on direct, yet, on
cross, was unable to do the same and often gave "catty" responses. The court
further recounted that the parties had generally been highly distrustful of each
other during the litigation, which the record shows entailed frequent,
acrimonious motion practice.
Ultimately, as discussed in further detail below, the court ordered an
award of limited-duration alimony to plaintiff in the amount of $1,200 per week
for six years. And, based on that figure along with its estimates of the parties'
incomes, it calculated defendant's child support award to be $162 per week
using the child support guidelines. It further effected an equitable distribution
of the parties' marital property, including an equal division of the value of
several bank accounts, which it determined totaled $133,256.12, as of the time
plaintiff filed for divorce.
II.
Appellate review of a judgment following a bench trial is limited.
Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). The trial
A-3865-21 5 court's factual findings are entitled to deference on appeal so long as they are
supported by sufficient credible evidence in the record. Rova Farms Resort, Inc.
v. Invs. Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Such deference is
particularly appropriate when those findings depend on the court's credibility
determinations made with the benefit of its first-hand observation of witness
testimony, Cesare v. Cesare, 154 N.J. 394, 412 (1998), or on its "'feel' of the
case," State v. Johnson, 42 N.J. 146, 161 (1964). The court's "interpretation of
the law and the legal consequences that flow from established facts," however,
"are not entitled to any special deference," and are subject to de novo review on
appeal. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
We first address, and reject, defendant's arguments the court abused its
discretion in establishing defendant's alimony obligation. An alimony award is
meant to assure a dependent spouse a level of "maintenance sufficient to support
that spouse based on the living standards of the couple during marriage ,"
Konzelman v. Konzelman, 158 N.J. 185, 195 (1999), and thus "permit[] a spouse
or civil union partner 'to share in the accumulated marital assets to which he or
she contributed.'" Cardali v. Cardali, 255 N.J. 85, 100 (2023) (quoting
Konzelman, 158 N.J. at 195). It is an "economic right that arises out of the
A-3865-21 6 marital relationship," id. at 100-01 (quoting Quinn v. Quinn, 225 N.J. 34, 48
(2016)), grounded in the recognition that "marriage is an economic and social
partnership and that the financial and non-financial contributions of both
spouses should be recognized," J.E.V. v. K.V., 426 N.J. Super. 475, 486 (App.
Div. 2012).
As relevant here, for a marriage under twenty years in duration, "the total
duration of alimony shall not . . . exceed the length of the marriage," absent
exceptional circumstances that the parties agree do not apply here. N.J.S.A.
2A:34-23(c). In determining the appropriate length and amount of alimony, a
court must consider the factors detailed in N.J.S.A. 2A:34-23(b).
In addition, the court should consider the
practical impact of the parties' need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union, to which both parties are entitled, with neither party having a greater entitlement thereto.
[N.J.S.A. 2A:34-23(c).]
A court's decision whether to award alimony and, if so, its duration and
amount, are left to the court's broad discretion, subject to the guidelines set forth
above. Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd
A-3865-21 7 as modified, 183 N.J. 290 (2005). Consequently, the decision will not be
disturbed on appeal unless it "clearly abused its discretion, failed to consider all
of the controlling legal principles, made mistaken findings, or reached a
conclusion that could not reasonably have been reached on sufficient credible
evidence present in the record after considering the proofs as a whole." J.E.V.,
426 N.J. Super. at 485. We find no such abuse of discretion.
Here, the court noted the parties had been married for nine years and four
months at the time of the complaint and that defendant and plaintiff were forty
and thirty-nine years old, respectively. It found neither suffered from any
health issues that would affect their ability to earn income, and both were well-
educated and working to their respective capacities. Further, both shared joint
legal and physical custody of the children and had "comparable" parental
responsibilities, and they had both contributed to the marital enterprise and
would be receiving assets in equitable distribution.
With regard to the marital lifestyle, the court recounted that defendant
characterized it as "middle class" and "non-extravagant," while plaintiff
believed it to be "upper middle class," pointing out the family vacationed often,
dined at restaurants weekly, and bought expensive clothing. Despite
differences in the characterization of their marital lifestyle, the parties were
A-3865-21 8 "pretty close" in the numbers they reported in their respective case information
statements. That said, the court concluded, "[r]egardless of the 'label'
assigned," neither party would likely be able to maintain a reasonably similar
lifestyle going forward.
Moreover, given their significant income disparity, the court concluded
plaintiff had established a need for support and defendant had an ability to pay.
As for the balance of the statutory factors, including the tax treatment of any
resulting alimony award, the court concluded they did not apply.
To determine the parties' relative incomes for support purposes, the court
considered plaintiff's employment contract, as well as both parties' case
information statements and available tax returns, W-2 forms, and paystubs, all
as elucidated by the parties' testimony. While it recognized plaintiff's income
had increased over the years pursuant to her employment contract, it concluded
the appropriate figure would be $87,900, which it believed reflected her 2021 to
2022 compensation from all sources.
With respect to defendant, the court acknowledged his position that his
income going forward would be about $300,000, but it noted he had failed to
produce his tax returns for the 2020 tax year and that his year-to-date income
for 2021 "lack[ed] significant documentation," precluding a comparison with
A-3865-21 9 plaintiff's income that would genuinely be "apples to apples." In the end, the
court observed from the available documentation defendant's income had
fluctuated over the years and decided to use an "income-averaging approach"
to arrive at a figure of $315,000.
Although the court acknowledged defendant's assertion the parties had a
more modest joint lifestyle for most of the marriage than their budget reflected,
the court found plaintiff's current budget was in any event "substantially lower
than the joint marital lifestyle budget," and she clearly needed support to meet
it. It concluded $1,200 per week would be a reasonable and necessary amount
to help make up the difference. In that light, the court concluded its earlier
decision to grant plaintiff pendente lite support had been inequitable, but noted
granting a retroactive award, resulting in significant arrears on defendant's part,
would not be equitable either. It believed the appropriate remedy would be to
adjust the duration of alimony accordingly and found a term of six years
appropriate.
Defendant takes issue with that determination on appeal on a number of
grounds. First, he contends the court failed to analyze properly the statutory
factors when establishing either the duration or amount of alimony. He asserts
both parties were young and in good physical and emotional health, shared
A-3865-21 10 parental responsibilities, and had joint physical custody of the children.
Moreover, plaintiff was well-educated, fully qualified for her current position,
and had been employed the full length of the marriage, except for only two brief
absences for the birth of their children.
Defendant argues these factors weighed against a six-year term of alimony
for only a nine-year marriage, and states the court provided "absolutely no
explanation" for having chosen such a long term. He contends, without
explanation, a more appropriate alimony award would have been $575 per month
for four-and-a-half years, based on unspecified evidence in the record.
We reject all of these arguments. As detailed above, the court clearly
analyzed the statutory factors at some length before reaching its decision.
While defendant highlights certain statutory factors that may weigh against the
court's alimony decision, the court was well within its discretion to conclude
other considerations—particularly the significant disparity in the parties'
incomes, plaintiff's need of support to meet her budget, and prior lack of such
support during the litigation—justified the award it reached.
Defendant also argues the court failed to properly consider the parties'
relative incomes and standard of living during the marriage. First, he asserts the
court never ascertained his true income, accusing it of having ignored his
A-3865-21 11 testimony, along with the parties' tax returns from the latter part of the marriage
and the documentation for his 2020 and 2021 income that he did ultimately
provide. He calculates his average salary throughout the length of the marriage
as $176,255, far less than the $315,000 the court estimated.
As for plaintiff's income, defendant contends plaintiff's own evidence at
trial established she would earn a base salary of over $95,000 for the 2021-2022
school year, with additional income from tutoring, committee work, and
summer pay, and she would be entitled to annual salary increases thereafter
pursuant to her contract. He further accuses her of concealing her summer pay
by failing to produce her July 2021 paystub.
Defendant maintains that rather than based on the record and applicable
law, the court's alimony award was essentially meant to "punish" him for his
financial success. He emphasizes he was not a partner at his firm until the final
years of the marriage, that the parties earned comparable incomes up until then,
and, even once his own income increased, he had to save a large portion to pay
taxes. Moreover, plaintiff never suffered any interruption in her career or wage
loss due to the marriage. Again, we are unpersuaded.
Defendant is correct that alimony is meant to be "neither a punishment for
the payor nor a reward for the payee," Aronson v. Aronson, 245 N.J. Super. 354,
A-3865-21 12 364 (App. Div. 1991), but nothing in the court's decision suggests either was the
case here. Rather, the court made clear the award was warranted in light of the
parties' considerable income disparity, plaintiff's need for support, and
defendant's ability to pay.
As for the underlying findings regarding the parties' incomes, those
findings were adequately supported by the record. See Rova Farms, 65 N.J. at
483-84. The court was not bound to accept defendant's testimony regarding his
income at face value, see Cesare, 154 N.J. at 412, and the parties' joint tax
returns showed he had earned as much as $318,583 per year in partnership
income, exceeding the figure the court ultimately used. Moreover, defendant
himself testified at trial he expected to earn $300,000 per year in his current
position, and, once he finally produced it, his 2021 tax return bore that out,
showing an income from the partnership of over $305,000.
To the extent defendant argues the court should have considered the
average of his income over the entire duration of the marriage, rather than his
more recent income, the result would not have reflected his current actual
ability to pay alimony, see N.J.S.A. 2A:34-23(b)(1). Further, defendant has not
cited to anything in the record to support the income figures he uses for the
earlier years he utilizes for his calculations. We note, on this point, defendant
A-3865-21 13 acknowledges, at best, the court had access to only his tax returns for the last
few years of the marriage at the time of trial.
Contrariwise, plaintiff produced her most recent returns, which coupled
with her testimony, were consistent with the court's findings as to her income.
Insofar as defendant accuses plaintiff of having concealed a portion of her 2021
income by withholding her then-most recent paystub, defendant fully explored
that issue on cross-examination, and plaintiff explained the extra paystub would
not have revealed any further earnings. We are satisfied the court considered
all the parties' testimony and the evidence before making its detailed findings.
As noted, defendant had not explained his calculations and, again, failed
to timely provide the tax documents that might have substantiated them. The
2021 returns he later produced, to be sure, show a considerable federal tax
obligation and lesser obligations to New Jersey and several other jurisdictions.
Those combined obligations, particularly after accounting for the credit
defendant claimed on his New Jersey return for the taxes he paid to those other
jurisdictions, do not explain adequately his calculations, however. At bottom,
we are satisfied the court's decision was supported by the record available to it
and warrants our deference.
A-3865-21 14 Finally, defendant asserts the parties on average lived only a middle-class
lifestyle, and he faults the court for focusing on their standard of living based
on the most recent years of their marriage, rather than its total duration. But, as
the court noted, whatever the appropriate characterization of the marital
lifestyle, the parties largely agreed on the family's total budget in their case
information statements, which reflected their standard of living during the final
years of their marriage. Moreover, plaintiff's budget following the parties'
separation was considerably less than the parties' earlier budget and the court
designed the alimony award to satisfy that budget, not the joint one.
III.
Defendant next contends the court abused its discretion in setting his
child support obligation. Specifically, he argues the court's child support
determination was impacted by the same purportedly flawed analysis of the
parties' relative incomes that influenced its alimony determination. He
maintains had the court calculated the obligation using the after-tax income
figures he contends were appropriate, plaintiff would actually owe him support
and have to cover the greater share of the children's unreimbursed medical
expenses. He further argues the award was especially unreasonable given that
the parties equally share custody of the children, defendant already covers a
A-3865-21 15 larger share of their unreimbursed expenses, and he is "more involved" in their
lives than plaintiff. Moreover, he asserts the obligation undermines his equal
entitlement to maintain a lifestyle reasonably comparable to the marital one
after divorce. We disagree with all of these arguments.
Parents share the responsibility to support their children. Pascale v.
Pascale, 140 N.J. 583, 590-91 (1995). Allocation of that responsibility on
divorce is ordinarily had by application of our child support guidelines, though
a court "may modify or disregard the guidelines where good cause is shown."
Caplan v. Caplan, 182 N.J. 250, 264 (2005).
However, where the parties' combined net income, as here, exceeds the
maximum contemplated by the guidelines, the court should apply the guidelines
up to that threshold and supplement the award to arrive at one that meets the
children's reasonable needs in light of the family's standard of living during the
marriage and the children's best interests. Isaacson v. Isaacson, 348 N.J. Super.
560, 580-81, 584 (App. Div. 2002). In setting such an award, the court must
consider the applicable N.J.S.A. 2A:34-23(a) statutory factors, Caplan, 182 N.J.
at 271, but the court's ultimate determination in that regard lies within its
discretion and will be reviewed only for an abuse of that discretion on appeal.
Id. at 264, 271.
A-3865-21 16 Here, the court applied the child support guidelines, using its income
determinations of $1,690 and $6,058 per week for plaintiff and defendant,
respectively, and the alimony award of $1,200 per week, to calculate a support
amount of $162 per week for plaintiff, who was designated as the custodial
parent. Although it acknowledged the parties' incomes exceeded the threshold
for the guidelines, it declined to award any discretionary increase in light of the
parties' shared custody arrangement and the amount of the alimony award. 1
We are satisfied the court's findings as to the parties' relative incomes
were adequately supported by the available evidence, Rova Farms, 65 N.J. at
483-84, and defendant does not dispute that the court properly applied the child
support guidelines using those figures, Caplan, 182 N.J. at 264, 271.
1 Although the court could have supplemented the resulting figure, given the parties' combined income exceeded the relevant threshold, Isaacson, 348 N.J. Super. at 584, neither plaintiff nor defendant challenges the court's order on that basis. In any event, the court adequately explained its decision not to do so. On this point, it found, "[w]hile the parties' net income exceed[ed] the Guidelines threshold, the [c]ourt will not apply a discretionary increase as a result of the parties' shared custody arrangement and the quantum of alimony being paid." Although the court did not explicitly address each statutory factor under N.J.S.A. 2A:34-23(a), as contemplated by Caplan, it is evident from our review of the record it considered them. For instance, the court thoroughly addressed factors (1), (2), (3), (4), (5), (6) and (9) under N.J.S.A. 2A:34-23(a), in the context of its analysis relating to "[s]upport and [r]elated issues." Finally, to the extent any modification may be necessary in the future when alimony ends, the court may always revisit the issue on an appropriate motion for modification. A-3865-21 17 IV.
Defendant next argues the court erred in failing to enforce the parties'
agreement to equally share responsibility for the children's expenses during the
litigation. Defendant maintains he provided documentation of his "exact
expenses" encompassed by the agreement at trial and maintains the court failed
to consider them when reaching its decision. He argues the court was bound to
enforce the agreement as written, noting plaintiff never alleged he had engaged
in fraud, coercion, or undue influence, and he was the one who had negotiated
the agreement pro se while she was represented by counsel. Moreover, he
asserts she should be estopped from failing to comply with the agreement
because he maintains he had dismissed his TRO in reliance on enforcement of
the agreement. Again, we disagree with these arguments.
Our courts observe a strong public policy favoring settlement, including
of matrimonial disputes. Quinn, 225 N.J. at 44. Generally, a court will interpret
a settlement agreement according to the intent of the parties and, so long as that
intent is clear from the text of the agreement, will enforce the agreement as
written. Id. at 45. It will not "rewrite a contract or grant a better deal than that
for which the parties expressly bargained," absent "'unconscionability, fraud,
A-3865-21 18 or overreaching in the negotiations of the settlement.'" Id. at 45, 47 (quoting
Miller v. Miller, 160 N.J. 408, 419 (1999)).
That said, "'the law grants particular leniency to agreements made in the
domestic arena' and vests 'judges greater discretion when interpreting such
agreements.'" Id. at 45-46 (quoting Pacifico v. Pacifico, 190 N.J. 258, 266
(2007)). While such agreements, which are, after all, the product of mutual
consent, "should not be unnecessarily or lightly disturbed," id. at 44, (quoting
Konzelman, 158 N.J. at 193), they are nonetheless enforceable in equity only to
the extent they are "fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App.
Div. 2006).
The civil restraints agreement here provided in relevant respect that
"household expenses w[ould] be paid on an equal basis (including child
expenses)." It further specified such expenses included those for the "mortgage,
gym, Comcast, PSE&G, swimming, HOA, girls' college fund, car insurance,
life insurance, MVP, Courtney school lunch, tuition, and groceries for the
girls."
The court first addressed this provision in February 2020, less than two
months after the parties signed the agreement. It denied a motion by plaintiff
for pendente lite child support, noting the relatively recent agreement required
A-3865-21 19 an equal division of childcare expenses, and concluded the parties should
maintain the status quo and continue to split those costs equally. Additionally,
it rejected plaintiff's request for pendente lite spousal support and explained:
The [c]ourt has concerns about what has occurred. Again, the parties entered into a very specific agreement as to how finances were to be addressed on a pendente lite basis. The arrangements were based upon a nesting arrangement whereby, in essence, the parties would share equally custody of the children and expenses to maintain the "nest," i.e. the former marital home. Seemingly before the ink is dry on this agreement, [plaintiff] seeks to establish a separate pendente lite support.[ ]
[(italicization omitted).]
That said, given plaintiff now maintained a separate residence, the court
concluded the parties should, as a matter of equity, each pay the expenses
associated with their own respective residences, rather than requiring plaintiff
to equally share the costs of the marital residence on top of paying all the costs
for her own.
Later, in February 2021, the court granted, in part, defendant's motion for
reimbursement of half the children's expenses that had accumulated up to that
point, finding no "adequate legal or factual basis to modify the [a]greement at
th[at] time," but it deferred resolution of any specific reimbursement issues
pending required mediation.
A-3865-21 20 Defendant continued to pursue reimbursement, and, in its final decision,
the court agreed that, although its February 2020 order had relieved plaintiff of
any requirement to contribute to expenses for the former marital home, the order
never modified her obligation to equally share the children's expenses.
However, it found defendant's testimony and documentation of those expenses,
which it noted identified certain retail establishments but was devoid of details
regarding the purchases, failed to establish any viable basis for reimbursement.
Aside from the children's college accounts, which the court addressed separately
and are not the subject of this appeal, it found the amount defendant was
requesting "inconsequential" in light of plaintiff's testimony to having made
similar expenditures of her own without any pendente lite support from
defendant.
Further, contrary to defendant's arguments, the court explicitly enforced
the agreement in relevant respects. It merely found, based on a review of
defendant's documentation and both parties' testimony, that defendant had
shown no entitlement to reimbursement, because the parties had already made
similar expenditures for the children despite plaintiff's lack of any pendente lite
support. The court was not bound, as defendant's arguments presume, to accept
his documentation not only at face value, but to the complete exclusion of
A-3865-21 21 plaintiff's testimony regarding her own expenditures. We are satisfied the
court's factual findings were clearly supported by the record and, again, warrant
our deference. Rova Farms, 65 N.J. at 483-84.
Defendant next argues the court abused its discretion in the equitable
distribution of certain of the parties' bank accounts. As noted, we agree with
defendant's arguments with respect to two of the parties' accounts and
accordingly reverse and remand only for the court to correct its valuation error.
When dissolving the parties' marriage, the court must also effectuate an
equitable division of the parties' marital assets and is required to identify which
assets comprise the marital estate, determine their value, and make a fair and
just allocation of them. Rothman v. Rothman, 65 N.J. 219, 232 (1974). A party
seeking to shield any portion of an asset from equitable distribution bears the
burden of establishing its immunity. Pacifico, 190 N.J. at 269.
In order to appropriately allocate marital assets deemed subject to
distribution, the court must consider the factors enumerated in N.J.S.A. 2A:34-
23.1, including, as pertinent here, the value of the property. The court's
undertaking in that regard is not "mechanical," but must be sensitive to the
equities of each particular case. Stout v. Stout, 155 N.J. Super. 196, 205 (App.
A-3865-21 22 Div. 1977). Consequently, its decision is entrusted to its broad discretion,
Steneken, 367 N.J. Super. at 435, and will not be disturbed on review so long as
it "could reasonably have reached its result from the evidence presented, and the
award is not distorted by legal or factual mistake," La Sala v. La Sala, 335 N.J.
Super. 1, 6 (App. Div. 2000).
At issue here were five bank accounts, all in defendant's name—a TD
Bank checking account; two Wells Fargo accounts, one checking and one
savings; a Discover online savings account (Discover account 1);2 and a Capital
One money market account. The parties did not dispute that these assets, at least
for the most part, were subject to equitable distribution and agreed they should
be distributed according to their value on the date of the complaint. The co urt
calculated their total value at $133,256.12 based on the closing balances
reflected in their December 2019 statements, and concluded half, $66,628.06,
should be distributed to plaintiff. Defendant also had two other accounts —a
second Discover online savings account (Discover account 2) that defendant
testified was used solely to pay taxes because his firm withheld nothing from
his compensation and a TD Bank business checking account—which the court
2 To preserve confidentiality pertaining to active financial accounts, we have omitted any reference to account numbers. See R. 1:38-7(e). A-3865-21 23 concluded, based on defendant's testimony, were immune from equitable
distribution.
Defendant asserts the court erred in a very limited respect. First, with
regard to the Wells Fargo checking account, he argues the court mistakenly used
in its calculation the $11,708.59 beginning balance from the account's December
2019 statement rather than the $5,080.07 closing balance. Although the court's
decision makes clear it intended to value the property as of the end of December,
it appears to have used the December statement's opening, rather than closing
balance in its calculations. That "factual mistake" warrants reversal and a
remand to correct the error. See La Sala, 335 N.J. Super. at 6. The court made
a similar error with respect to the Wells Fargo savings account, albeit in
defendant's favor and with much smaller consequence, using the opening
balance of $83.05, rather than the closing one of $109.06. On remand, the court
should correct the equitable distribution award by $3,301.25, half the difference
between the correct and incorrect figures.
With those lone exceptions, the court's decision on equitable distribution
was adequately supported by the record. Next, although defendant
acknowledges that Discover account 1 and the Capital One account were at least
partially subject to equitable distribution, he asserts they already had balances
A-3865-21 24 of $11,595.99 and $4,109.12, respectively, as of the date of marriage and earned
a total of $1,054 in interest on those balances through date of complaint. He
argues this combined $16,759.11 was never comingled with marital assets and
should therefore have been immune from equitable distribution.
In support, defendant points to a statement for the Discover account 1
covering the third quarter of 2010, which shows a closing balance of
$11,595.99. But he neglects to mention it includes deposits of $6,900 made in
September of that year, after the parties were already married. Moreover, aside
from the interest on that initial balance, defendant does not contest the rest of
the funds in that same account, worth $117,688.96 as of the complaint,
constituted marital property that was plainly comingled with the funds he now
claims were immune from distribution. As for the Capital One account,
defendant offers an August 2010 statement showing a closing balance of
$4,109.12, but the December 2019 balance, the most he could shield from
equitable distribution absent further explanation, was only $623.34. And even
that figure included two deposits in the prior month alone from the Wells Fargo
checking account that defendant does not dispute was subject to distribution,
again undermining his assertion the funds were never comingled.
A-3865-21 25 Defendant next asserts the December 2019 balance for Discover account
1 included $18,000 he had "inadvertently" transferred from Discover account 2.
He claims he meant to transfer the money instead to his Wells Fargo account in
anticipation of paying his taxes and that he corrected the mistake in January
2020 as soon as he discovered it. Because the court agreed Discover account 2
was immune from distribution, he reasons, the $18,000 he temporarily
transferred from it to Discover account 1 should have been immune as well.
Defendant identifies statements from account Discover account 2 showing
he made two transfers totaling $18,000 to Discover account 1 in November 2019
and another two sending the same amount back the following January. But, by
his own account, he did not transfer any money to Wells Fargo until July, and,
even once he did, it was an amount different than $18,000. There is no obvious
connection among these transfers that would compel the conclusion the court
operated under any mistake of fact, and defendant, who bore the burden of proof
to demonstrate the funds were immune, Pacifico, 190 N.J. at 269, failed to
satisfy that burden.
Last, defendant argues the $7,296 he paid in January and February 2020
to cover what he believes to have been the parties' joint obligations under the
civil restraints agreement should have been excluded from the total value of the
A-3865-21 26 distributed accounts. But he points to a summary showing that most of the
expenses were for his own residence, which, as discussed above, the court was
within its discretion to conclude he should be responsible for notwithstanding
the agreement. As for any expenses for the children, he is correct that portion
of the obligation was shared, but the court concluded, based on adequate
evidence in the record, that the parties had already made equivalent
expenditures in that regard, and defendant had shown no entitlement to
reimbursement. That leaves only defendant's mortgage payments, which the
court dealt with separately and gave him a credit, which defendant does not
challenge on appeal. 3
3 Plaintiff also challenges the court's equitable distribution decision on two grounds. First, she argues the court erroneously excluded Discover account 2 from equitable distribution because defendant failed to timely produce his 2020 and 2021 tax returns substantiating that he actually used those funds to pay his taxes. Second, plaintiff contends the trial court "arguably . . . fail[ed] to include market forces in the distribution of retirement funds to [her]." We decline to address those arguments for two reasons. First, with respect to the court's decision regarding the retirement funds, it does not appear from our review of the trial record and plaintiff's cross-motion for reconsideration that plaintiff raised this issue with the court. Instead, she asserts it for the first time on appeal. Second, she has failed to cross-appeal. Under these circumstances, we decline to address plaintiff's arguments. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Reich v. Borough of Fort Lee Zoning Bd. of Adjustment, 414 N.J. Super. 483, 499 n.9 (App. Div. 2010) (explaining "a respondent must cross- appeal to obtain relief from a judgment"). A-3865-21 27 In sum, we are satisfied the court erred only with respect to valuing and
distributing the Wells Fargo accounts. We reverse the court's order and remand
for the limited purpose of reducing plaintiff's equitable distribution award by
$3,301.25.
VI.
In his final point, defendant contends he did not receive a fair trial
because the judge made several derogatory remarks about accountants in his
presence, violating the Code of Judicial Conduct, and further exhibited his bias
in the adverse discretionary decisions related to its alimony, child support, and
equitable distribution decisions. He asks that we reverse the court's orders and
remand the matter for a new hearing and consideration by a different judge.
With respect to the court's alleged improper comments, defendant alleges
during an early-morning pre-trial conference call on July 7, 2022, which was
not transcribed, the judge made "numerous" offensive comments about those in
defendant's profession, including that the judge "hate[d]" dealing with
accountants as litigants, because "they make everything difficult." Defendant
surmises the judge made these statements because he was under the
misimpression he was speaking only with counsel on the call. Other than
defendant's representation, the record contains no certifications or attested
A-3865-21 28 statements from anyone else on the call corroborating defendant's version of
the judge's comments.
On December 23, 2024, during the pendency of this appeal, defendant
sought to supplement the record with a transcript from oral argument on a recent
motion, an application we granted. That transcript reveals the judge
acknowledged that he previously stated in his prior experience as a practicing
attorney, he found accountants, along with engineers, lawyers, and doctors, to
be "difficult clients . . . because they overthink things." The judge, however,
expressly denied either having used the word "hate," or having treated
defendant any differently because of defendant's profession, noting his own
mother had been an accountant.
The Code of Judicial Conduct "is a general statement of standards and
goals, admirably serving the purpose of providing guidance to judges in all
matters precisely because of the generality of its provisions." In re Di Leo, 216
N.J. 449, 467-68 (2014) (quoting In re Alvino, 100 N.J. 92, 102 (1985)).
Although judges must adhere to it, not every violation reflexively constitutes
judicial misconduct or warrants discipline. Id. at 468. Likewise, "inappropriate
comments do not, by themselves, necessarily equate to bias" warranting
reversal. Panitch v. Panitch, 339 N.J. Super. 63, 68 (App. Div. 2001). Instead,
A-3865-21 29 a claim of prejudice based on a violation of the code is reviewable on appeal
"considering the entire transcript." Mercer v. Weyerhaeuser Co., 324 N.J.
Super. 290, 298 (App. Div. 1999) (quoting State v. Zwillman, 112 N.J. Super.
6, 20 (App. Div. 1970)).
Applying these principles, and after having reviewed the entire record of
the proceedings, we are convinced the court treated defendant fairly and
addressed all the issues before him in an unbiased and conscientious manner.
Indeed, in its thorough written decision, the court found both parties "partially
credible" to a similar extent, and in particular credited defendant's explanation
for his use of the Discover account to pay taxes, rendering it immune from
equitable distribution. Simply put, we find nothing in the record to indicate the
court was anything but fair to both parties and we are unpersuaded the judge's
remark warrants reversal or reassignment of the matter.
The court's gratuitous and fleeting comment in the supplemented record
does not support a contrary finding. First, as noted, other than defendant's
characterization of the earlier call, there is nothing in the record, from any other
percipient witness, attesting to defendant's version. And while it certainly would
have been better practice for the court not to share its views as a practicing
attorney, under the circumstances, and based on the entirety of the record, we
A-3865-21 30 find no basis to conclude the court violated the Code of Judicial Conduct, or
conducted the proceedings in a manner warranting the relief requested.
Finally, because defendant failed to demonstrate the court's decision
denying reconsideration was "based upon a palpably incorrect or irrational
basis," or "that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence," D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990), reconsideration was not warranted. Any
argument made by plaintiff that we have not expressly addressed is without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
A-3865-21 31