J.Z. v. Y.C.L.
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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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3500-21
J.Z.,1
Plaintiff-Respondent,
v.
Y.C.L.,
Defendant-Appellant. _______________________
Submitted January 30, 2024 – Decided September 10, 2024
Before Judges Gooden Brown and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1106-14.
Y.C.L., appellant pro se.
J.Z., respondent pro se.
PER CURIAM
1 We use initials to protect the privacy of the parties in accordance with Rule 1:38-3(d)(1). Defendant/ex-wife appeals from provisions of a May 26, 2022, dual final
judgment of divorce (DJOD) pertaining to equitable distribution, alimony,
retroactive pendente lite support, and maintenance of a life insurance policy to
secure payment obligations. We affirm.
I.
We glean these facts from the evidence presented at the six-day bench trial
that commenced on March 20, 2019, and concluded on October 28, 2021. Both
parties testified during the trial.
Plaintiff/ex-husband and defendant were married on March 14, 1998.
When the trial began, plaintiff was fifty-three years old, and defendant was fifty-
four years old. Plaintiff had been a police officer with the City of Clifton since
1996, and defendant had been a practicing attorney in private practice. By 2004,
defendant had given birth to the parties' first son, and the couple began fostering
a second boy whom they later adopted in 2006.
In 2004, defendant left private practice and began working at the Office
of Foreclosure. However, within a few months, defendant suffered a medical
episode that resulted in an extended leave and her eventual termination. As a
result, defendant began collecting monthly disability payments of $3,750 under
a private MetLife insurance policy that was payable until 2029 when she turned
A-3500-21 2 sixty-five. Eventually, defendant also applied for Social Security disability
benefits and received an award in 2007 of about $1,760 per month, retroactive
to December 2005, with a retroactive lump sum child benefit for each child of
$40,913 and $34,634.
Around Thanksgiving 2005, the parties separated when defendant asked
plaintiff to move out of the marital residence and plaintiff began living with his
brother. Defendant became the primary caretaker of the children during the
week, sending the children to school where she lived, while plaintiff saw the
children on weekends. Both parties continued to share expenses, including
vacations with the children.
In 2006, plaintiff filed a complaint for divorce. However, he withdrew
the complaint after defendant convinced him that it would be financially
advantageous to maintain the marriage considering taxes, health insurance, and
defendant's ability to take the survivor benefit under plaintiff's Police and
Firemen's Retirement System (PFRS) pension.
In 2007, plaintiff was injured on the job while responding to an
automobile incident involving a semi-incapacitated driver. During the incident,
the driver accelerated toward plaintiff, injuring plaintiff's shoulder. Plaintiff
responded by firing his weapon and injuring the driver. As a result, plaintiff
A-3500-21 3 suffered both physical and mental injuries and was approved for monthly PFRS
accidental disability retirement benefits beginning in December 2008. Plaintiff
also received a $100,000 personal injury settlement from the vehicle driver, plus
$124,203 from the parties' uninsured/underinsured motorist automobile policy,
less fees and costs.
With his pension in pay status, plaintiff, who had an undergraduate degree
and an MBA prior to the marriage, went back to school to pursue a nursing
degree. After obtaining his teaching certification and teaching high school
business classes, plaintiff eventually earned a master's degree in nursing science
and started working as a nurse in 2013.
On March 19, 2014, plaintiff filed a new complaint for divorce. After
defendant filed an answer and counterclaim, the parties entered a consent order
on November 30, 2015, resolving custody and parenting time issues and leaving
the remaining financial issues for resolution at trial. On July 20, 2016, a
pendente lite order temporarily directed plaintiff to pay defendant fifty percent
of his PFRS disability pension subject to equitable distribution pursuant to
Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290 (App. Div. 2007). All Pro
QDRO, an expert evaluator, determined that defendant's monthly share of the
pension benefit was $1,125. The pendente lite order also denied defendant's
A-3500-21 4 request for child support, citing "the similar incomes of the parties and the split
custody arrangement," and denied spousal support due to the "general parity of
[the parties'] monthly incomes."
The parties' remaining financial issues primarily involved their
development and sale of multiple properties acquired over the course of the
marriage, often using the proceeds from one property to fund the purchase of
another. Even prior to the parties' marriage, plaintiff had owned a home with
his two sisters located on East Shore Road in Denville. After the marriage,
defendant moved into plaintiff's house with his one younger sister who
continued residing in a basement apartment. The same year, the parties
purchased a two-family home and an empty lot, both located on Thompson
Avenue in Dover. The purchases initiated the long chain of property
acquisitions over the ensuing years. Plaintiff worked to develop the properties,
while defendant handled the legal work for the transactions.
In August 1999, plaintiff mortgaged the Thompson Avenue empty lot for
$80,000 to build a family home on the property. In 2000, the parties purchased
three properties on Woodland Avenue in Denville. In 2001, the parties
remortgaged the East Shore Road home, purchasing both of plaintiff's sisters'
shares in the property and recording title in both plaintiff's and defendant's
A-3500-21 5 names. The parties used a portion of the mortgage proceeds to pay off
defendant's student loans that had been incurred prior to the marriage. By then,
the parties' first son was born.
In 2002, the parties took out a second mortgage on the East Shore Road
home to fund the development of the Woodland Avenue properties. In April
2003, the parties sold the East Shore Road home for $285,000 and used a portion
of the proceeds, in addition to a new mortgage and joint-checking account
monies, to purchase their new marital home located on Lockley Court in
Mountain Lakes. Defendant described the Lockley Court home as "the house of
[her] dreams." In August 2004, the parties sold the two-family Thompson
Avenue property and split the proceeds.
By then, the parties had become foster parents and hired a nanny to take
care of the children and their home. They later received monthly payments from
the State for the adoption. After defendant's medical episode, she became the
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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-3500-21
J.Z.,1
Plaintiff-Respondent,
v.
Y.C.L.,
Defendant-Appellant. _______________________
Submitted January 30, 2024 – Decided September 10, 2024
Before Judges Gooden Brown and Puglisi.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1106-14.
Y.C.L., appellant pro se.
J.Z., respondent pro se.
PER CURIAM
1 We use initials to protect the privacy of the parties in accordance with Rule 1:38-3(d)(1). Defendant/ex-wife appeals from provisions of a May 26, 2022, dual final
judgment of divorce (DJOD) pertaining to equitable distribution, alimony,
retroactive pendente lite support, and maintenance of a life insurance policy to
secure payment obligations. We affirm.
I.
We glean these facts from the evidence presented at the six-day bench trial
that commenced on March 20, 2019, and concluded on October 28, 2021. Both
parties testified during the trial.
Plaintiff/ex-husband and defendant were married on March 14, 1998.
When the trial began, plaintiff was fifty-three years old, and defendant was fifty-
four years old. Plaintiff had been a police officer with the City of Clifton since
1996, and defendant had been a practicing attorney in private practice. By 2004,
defendant had given birth to the parties' first son, and the couple began fostering
a second boy whom they later adopted in 2006.
In 2004, defendant left private practice and began working at the Office
of Foreclosure. However, within a few months, defendant suffered a medical
episode that resulted in an extended leave and her eventual termination. As a
result, defendant began collecting monthly disability payments of $3,750 under
a private MetLife insurance policy that was payable until 2029 when she turned
A-3500-21 2 sixty-five. Eventually, defendant also applied for Social Security disability
benefits and received an award in 2007 of about $1,760 per month, retroactive
to December 2005, with a retroactive lump sum child benefit for each child of
$40,913 and $34,634.
Around Thanksgiving 2005, the parties separated when defendant asked
plaintiff to move out of the marital residence and plaintiff began living with his
brother. Defendant became the primary caretaker of the children during the
week, sending the children to school where she lived, while plaintiff saw the
children on weekends. Both parties continued to share expenses, including
vacations with the children.
In 2006, plaintiff filed a complaint for divorce. However, he withdrew
the complaint after defendant convinced him that it would be financially
advantageous to maintain the marriage considering taxes, health insurance, and
defendant's ability to take the survivor benefit under plaintiff's Police and
Firemen's Retirement System (PFRS) pension.
In 2007, plaintiff was injured on the job while responding to an
automobile incident involving a semi-incapacitated driver. During the incident,
the driver accelerated toward plaintiff, injuring plaintiff's shoulder. Plaintiff
responded by firing his weapon and injuring the driver. As a result, plaintiff
A-3500-21 3 suffered both physical and mental injuries and was approved for monthly PFRS
accidental disability retirement benefits beginning in December 2008. Plaintiff
also received a $100,000 personal injury settlement from the vehicle driver, plus
$124,203 from the parties' uninsured/underinsured motorist automobile policy,
less fees and costs.
With his pension in pay status, plaintiff, who had an undergraduate degree
and an MBA prior to the marriage, went back to school to pursue a nursing
degree. After obtaining his teaching certification and teaching high school
business classes, plaintiff eventually earned a master's degree in nursing science
and started working as a nurse in 2013.
On March 19, 2014, plaintiff filed a new complaint for divorce. After
defendant filed an answer and counterclaim, the parties entered a consent order
on November 30, 2015, resolving custody and parenting time issues and leaving
the remaining financial issues for resolution at trial. On July 20, 2016, a
pendente lite order temporarily directed plaintiff to pay defendant fifty percent
of his PFRS disability pension subject to equitable distribution pursuant to
Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290 (App. Div. 2007). All Pro
QDRO, an expert evaluator, determined that defendant's monthly share of the
pension benefit was $1,125. The pendente lite order also denied defendant's
A-3500-21 4 request for child support, citing "the similar incomes of the parties and the split
custody arrangement," and denied spousal support due to the "general parity of
[the parties'] monthly incomes."
The parties' remaining financial issues primarily involved their
development and sale of multiple properties acquired over the course of the
marriage, often using the proceeds from one property to fund the purchase of
another. Even prior to the parties' marriage, plaintiff had owned a home with
his two sisters located on East Shore Road in Denville. After the marriage,
defendant moved into plaintiff's house with his one younger sister who
continued residing in a basement apartment. The same year, the parties
purchased a two-family home and an empty lot, both located on Thompson
Avenue in Dover. The purchases initiated the long chain of property
acquisitions over the ensuing years. Plaintiff worked to develop the properties,
while defendant handled the legal work for the transactions.
In August 1999, plaintiff mortgaged the Thompson Avenue empty lot for
$80,000 to build a family home on the property. In 2000, the parties purchased
three properties on Woodland Avenue in Denville. In 2001, the parties
remortgaged the East Shore Road home, purchasing both of plaintiff's sisters'
shares in the property and recording title in both plaintiff's and defendant's
A-3500-21 5 names. The parties used a portion of the mortgage proceeds to pay off
defendant's student loans that had been incurred prior to the marriage. By then,
the parties' first son was born.
In 2002, the parties took out a second mortgage on the East Shore Road
home to fund the development of the Woodland Avenue properties. In April
2003, the parties sold the East Shore Road home for $285,000 and used a portion
of the proceeds, in addition to a new mortgage and joint-checking account
monies, to purchase their new marital home located on Lockley Court in
Mountain Lakes. Defendant described the Lockley Court home as "the house of
[her] dreams." In August 2004, the parties sold the two-family Thompson
Avenue property and split the proceeds.
By then, the parties had become foster parents and hired a nanny to take
care of the children and their home. They later received monthly payments from
the State for the adoption. After defendant's medical episode, she became the
primary caretaker of the children while plaintiff continued to develop the
investment properties and maintain his employment. In July 2005, the parties
sold the Lockley Court home and moved into an apartment located on Gates
Court in Morris Plains. They netted approximately $256,000 from the Lockley
A-3500-21 6 Court sale, which the parties used to deposit about $99,302 into plaintiff's bank
account and about $157,533 into the parties' joint bank account.
According to plaintiff, his share of the proceeds together with proceeds
from the Thompson Avenue sale were used to develop a modular home on one
of the Woodland Avenue properties. In October 2005, plaintiff mortgaged the
subject Woodland Avenue property for approximately $293,500 to continue
improving the Woodland Avenue properties. The parties had already invested
about $487,128 in the property. Because of her discomfort with the continued
investment of funds into the Woodland Avenue property, defendant deposited
"the remaining $100,000 from [the parties'] joint checking account" into "[her]
checking account."
After the parties separated in late 2005, plaintiff deposited $1,200 per
month into the parties' joint checking account, from which defendant paid joint
expenses. The parties also kept a joint auto insurance policy for financial
reasons until 2015. Defendant continued to live at the Gates Court apartment
and plaintiff lived with his brother while working on the Woodland Avenue
property. By October 2008, defendant withdrew from the parties' real estate
investment decisions. Plaintiff sold the last of the Woodland Avenue properties
in August 2010 and used the proceeds for a downpayment on a rental property
A-3500-21 7 located on Washington Street in Boonton. Defendant maintained that she was
unaware of the Washington Street transaction until the divorce proceedings.
In December 2010, plaintiff and his father purchased a property in Tarpon
Springs, Florida, and rented it to plaintiff's niece and nephew. Plaintiff later
received $27,500 for the Florida property, netting a $2,500 profit on his initial
$25,000 contribution to the investment. In January 2013, defendant bought a
home located on Edgefield Drive in Morris Plains for $370,642. The funds for
the purchase came from personal investment funds, the Social Security
Disability Insurance (SSDI) child benefit she received, and a $288,000
mortgage. On occasion, plaintiff stayed at the Edgefield Drive home as the
parties had a history of occasional cohabitation and residence swapping during
their separation. In May 2013, plaintiff purchased a home on Sommerfield
Avenue in Mount Tabor, using funds from his personal injury settlements and a
$266,400 mortgage.
Following the bench trial, on May 26, 2022, the trial judge entered a
DJOD accompanied by a comprehensive written opinion. In the written opinion,
the judge assessed credibility, made detailed factual findings, and drew legal
conclusions based on her application of the governing legal principles. In
assessing the credibility of the parties, the judge was impressed by plaintiff's
A-3500-21 8 candor but found that defendant's attempts "to discredit plaintiff" served instead
"to discredit [defendant]." As a result, the judge rejected defendant's assertion
"that any money received by plaintiff during the marriage was dissipated or
otherwise used for non-marital purposes."
Pertinent to this appeal, in the DJOD, among other things, the judge
divided plaintiff's PFRS pension benefit "equally between the parties," requiring
plaintiff to pay defendant $1,125.03 per month together with arrearages of
$9,000.24 "for the [eight] months for which [plaintiff] owe[d] defendant her
share of [the] pension payment." Under the DJOD, all marital assets, including
interests and equity in real property, were equally divided between the parties.
The DJOD also required plaintiff to pay defendant "open durational alimony" in
the amount of $2,000 per month "until either party dies or . . . defendant
remarries." Additionally, the DJOD required plaintiff to "maintain insurance on
his life with a face value of at least $250,000," naming "defendant as the
sole . . . beneficiary of the death benefit" for the duration of plaintiff's alimony
obligation.
In this ensuing appeal, defendant raises the following points for our
consideration:
I. THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN CONCLUDING AS A MATTER OF LAW
A-3500-21 9 THAT THE "STERNESKY FORMULA" APPLIED TO ALL PFRS DISABILITY PENSIONS.
II. THE LARRISON2 AND STERNESKY HOLDINGS ARE BASED ON MISTAKES OF LAW [AND] FACT AND ALL PFRS DISABILITY PENSIONS SUBJECT TO EQUITABLE DISTRIBUTION SHOULD BE DECIDED UNDER THE STANDARDS SET IN KRUGER3 AND AVALLONE.4
III. THE ALIMONY DETERMINATION WAS AN ABUSE OF DISCRETION AND THE TRIAL JUDGE FAILED TO CONSIDER THE CONTROLLING LEGAL PRINCIPLES AND MADE MISTAKEN FINDINGS OF FACT AND LAW.
IV. THE TRIAL JUDGE ERRED AS A MATTER OF LAW BY NOT AWARDING RETROACTIVE PENDENTE LITE SUPPORT.
V. THE TRIAL JUDGE ERRED AS A MATTER OF LAW BY INCLUDING IN EQUITABLE DISTRIBUTION FUNDS HELD IN TRUST FOR THE PARTIES' SONS.
VI. THE TRIAL JUDGE ABUSED HER DISCRETION IN NOT ORDERING [PLAINTIFF] TO PAY THE EXISTING LIFE INSURANCE POLICY.
2 Larrison v. Larrison, 392 N.J. Super. 1 (App. Div. 2007). 3 Kruger v. Kruger, 73 N.J. 464 (1977) 4 Avallone v. Avallone, 275 N.J. Super. 575 (App. Div. 1994) A-3500-21 10 II.
Our standard of review of a Family Part judge's determinations following
a bench trial are well-settled. We defer to a trial judge's factual findings "when
supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65
N.J. 474, 484 (1974)). "Deference is especially appropriate 'when the evidence
is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting
In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). As such, we will
"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)). However, "legal conclusions, and the application of those
conclusions to the facts, are subject to our plenary review." Reese v. Weis, 430
N.J. Super. 552, 568 (App. Div. 2013).
Still, the Family Part has "special jurisdiction and expertise in family
matters," which often requires the exercise of reasoned discretion. Cesare, 154
N.J. at 413. Family Part judges have broad discretion to allocate assets subject
to equitable distribution, Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div.
2012), make alimony determinations, Martindell v. Martindell, 21 N.J. 341, 355
A-3500-21 11 (1956), and decide income imputations, Storey v. Storey, 373 N.J. Super. 464,
474-75 (App. Div. 2004). If we conclude there is satisfactory evidentiary
support for the trial judge's findings, our "task is complete" and we will not
disturb the result. Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v.
Johnson, 42 N.J. 146, 162 (1964)).
Applying these principles, we will not disturb the judge's rulings, and
affirm substantially for the reasons stated by the judge in her well-reasoned
written decision. Defendant argues the judge misapplied the formula for
equitable distribution of a pensioner spouse's accidental disability pension
benefit established in Sternesky. Specifically, she asserts the Sternesky court
did not intend the formula to be employed to exempt the entire PFRS disability
pension from equitable distribution absent "diminished earning capacity, pain,
suffering, or disability." Instead, defendant claims that the entirety of plaintiff's
pension is subject to equitable distribution because he did not satisfactorily
provide evidence to support his claim that the entire award was exempt.
The law governing equitable distribution of a pension in this State is clear:
The party seeking exemption from equitable distribution bears the burden of proof. Landwehr v. Landwehr, 111 N.J. 491, 504 (1988). Ordinarily, the "portion of a pension legally or beneficially acquired by either party during marital coverture is subject to equitable distribution." Claffey v. Claffey, 360 N.J.
A-3500-21 12 Super. 240, 255 (App. Div. 2003) (citing Kikkert v. Kikkert, 88 N.J. 4, 5 (1981)). [Larrison v. Larrison, 392 N.J. Super. 1, 13-14 (App. Div. 2007).]
To fairly determine the portion of a pension acquired during marital
coverture, we established the "coverture fraction" as "the appropriate tool to
utilize in attempting to determine an appropriate allocation of spouses'
respective interests in a pension." Faulkner v. Faulkner, 361 N.J. Super. 158,
165 (App. Div. 2003).
"The coverture fraction is the proportion of years worked during the marriage to total number of years worked." Eisenhardt v. Eisenhardt, 325 N.J. Super. 576, 580 (App. Div. 1999). The numerator of the fraction is the period during the marriage in which the employed spouse participates in the pension plan and the denominator of the fraction is the total period of time in which the spouse participates in the plan.
[Id. at 165-66.]
But not all pensions are equal. We have long recognized a distinction in
equitable distribution of pensions based on whether its purpose serves as a
retirement benefit, a payment to alleviate the effects of a disability, or both. See
Avallone , 275 N.J. Super. at 581-83 (discussing the case law of other states that
"have also recognized the multiple functions served by a disability pension" and
holding "in light of the unique nature of a disability pension" that "a number of
A-3500-21 13 factors . . . should be taken into consideration before settling on a final
distributable amount").
Regarding disability pensions, we have specifically held "that the portion
that serves to compensate . . . pensioner-spouses for [their] disability and
economic loss should not be subject to equitable distribution." Larrison, 392
N.J. Super. at 16. And we have acknowledged that while "non-pensioner
spouses 'should not be deprived of [their] right to participate in such a significant
asset merely because it has been characterized as a disability pension rather than
a retirement pension[,]'" they are "only entitled to share the 'portion of
[pensioner-spouses'] disability pension[s] which represents a retirement
component,' but not the 'portion which represents compensation for [pensioner -
spouses'] personal disability and personal economic loss.'" Id. at 16-17 (quoting
Avallone, 275 N.J. Super. at 583-84).
In Sternesky, we enunciated a methodology to equitably distribute
disability pension payments. 396 N.J. Super. at 304-05. Absent "specific
evidence or official guidance permitting a more precise segregation of the
components of an accidental disability pension," the Sternesky formula
"segregate[s] the marital portion of the allowance from the portion best viewed
as compensation to the individual for the disabling injury." Id. at 305.
A-3500-21 14 In this context, the measure that reasonably recognizes the relationship between efforts during the marriage and total efforts required for return on that investment is the length of service that would have been required for an ordinary retirement allowance but for the disabling injury. Setting aside a disabling injury, the non-employee spouse's reasonable expectation, while [the employee] spouse is earning retirement credits, is no greater than a share of a retirement allowance based on service during the marriage in proportion to the years of service needed for an ordinary pension.
[Id. at 303-04.]
Stated differently, "the court should identify the marital component by
multiplying the ordinary retirement allowance by a fraction, with a numerator
equivalent to service during the marriage and a denominator equivalent to
service required for an ordinary retirement allowance." Id. at 304. "The results
will recognize . . . 'non-pensioner spouse[s'] legitimate claims to a marital asset,
without attaching funds intended to compensate . . . pensioner-spouse[s] for
[their] disabilities.'" Ibid. (quoting Larrison, 392 N.J. Super. at 18). This
formula, which provides for the parties based on "reasonable expectation[s],"
has remained the standard for equitable distribution of a disability pension since
its enunciation nearly two decades ago. See id. at 303.
Here, applying this standard, the judge explained:
This is a defined benefit plan that is in pay status and has been since December 1, 2008. Plaintiff receives
A-3500-21 15 [$5,598.22] monthly, tax free. In [p]laintiff's case this pension is a disability pension which means that it was awarded earlier than the [twenty] years of service required for a member to qualify for the retirement pension.
. . . . For the purposes of equitable distribution, it is the portion of the pension that was earned by plaintiff during the parties' marriage that was included. Painter v. Painter, 65 [N.J.] 196 [(1974)]; Innes v. Innes, 117 [N.J.] 496 (1990). Per the [Sternesky] decision, only the retirement portion of plaintiff's pension was valued, not the disability component. The lump sum value of that portion was found by [All Pro QDRO] to be $404,098, and the monthly benefit was valued at [$2,250.06]. However, the lump sum form of this asset is not available for offset as the pension is in pay status and has been paid to plaintiff for over thirteen years.
In rejecting defendant's contention that use of the Sternesky formula failed
to account for plaintiff's new career "earning more than he did as a law
enforcement officer," the judge stated:
The [Sternesky] opinion addresses this objection squarely:
An employee qualifies for an accidental disability retirement allowance only if, "as a direct result of a traumatic event" occurring during and resulting from performance of duties, the employee is "incapacitated" for his or her present duty or any other duty that the police or fire department is willing to assign. [N.J.S.A. 43:16A-7(1)].
A-3500-21 16 Plaintiff qualified because his post-traumatic stress disorder makes him unfit to work in law enforcement or as a firefighter, as found by the pension board. That he is able to work as a nurse practitioner or teacher is not the point. His chosen profession was law enforcement, a career of public service that is highly dangerous and generally enjoys an aura of authority and respect. Our legislature has chosen to compensate those who enter this risky career, and are injured in the performance of their duty, as a matter of public policy, not a matter of earnings. For these reasons, the court finds that the Sternesky case is applicable here.
Rejecting defendant's criticism of the coverture fraction used by All Pro
QDRO, the judge stated:
All Pro QDRO determined the coverture fraction to be [3,915] days/[7,305] days, or 53.59 [percent]. The concept behind the coverture fraction here is complicated by the fact that in order to qualify for the retirement pension, which is the only component of a disability pension that is subject to equitable distribution, plaintiff would have to be employed in his job for [twenty] years. Thus, while the numerator of the coverture fraction is the length of time that the parties were married and plaintiff was working, as would be the case in all coverture fraction determinations, the denominator is the length of time from plaintiff's first day on the job to a date [twenty] years later. Otherwise, there would be no component of the pension that would qualify for equitable distribution. The denominator is a necessary artificial construct, devised by the Sternesky court for these circumstances, so that a spouse of an officer injured before having [twenty] years of service can receive a share of the pension by way of equitable distribution.
A-3500-21 17 Both spouses typically rely on the PFRS pension for their future security. Moore v. Moore, 114 N.J. 147, 157 (1989).
The judge also rejected defendant's proposed coverture fractions, stating
in-part:
Defendant's proposed coverture fraction, amounting to 87.41[ percent], contains a denominator that represents only [twelve] years and [three] months of service, far short of the [twenty] years required for a retirement pension. That would preclude plaintiff[ from] being eligible for a retirement pension. As such, defendant would receive no part of an asset that the parties expected, rightfully, to help support them in their retirement. Clearly defendant does not intend to use a coverture fraction that deprives her of any part of plaintiff's pension.
The judge concluded, "All Pro QDRO['s] valuation follow[ed] the
Sternesky formula faithfully." Thus, the judge "adopt[ed] the value of the
benefit subject to equitable distribution, [$2,250.06,]" and awarded defendant
half of plaintiff's monthly PFRS pension benefit, amounting to $1,125.03. Both
the record and the State's settled case law amply support the judge's decision.
Defendant argues that Sternesky and its preceding case law are based on
"a gross mistake of the laws governing [PFRS] disability pensions ." Defendant
proffers instead that Kruger and Avallone are the more appropriate standards by
A-3500-21 18 which plaintiff's pension should be subjected to equitable distribution. We
disagree.
In Avallone, we noted that Kruger "is not controlling . . . for several
reasons." 275 N.J. Super. at 580. First, "[t]he disability pension at issue in
Kruger was a military disability pension to which special principles apply."
Ibid. Second, that case "was decided prior to McCarty v. McCarty, 453 U.S.
210 (1981), which reached a contrary result." Ibid. "Finally, as the Supreme
Court noted in Landwehr, Kruger was based upon a version of our equitable
distribution statute which the Legislature subsequently amended." Id. at 580-
81.
Next, defendant argues the $93,911 in SSDI child benefits she received as
"the chosen 'representative payee'" were "exempt from equitable distribution" as
a matter of law. Therefore, according to defendant, the Edgefield Drive home,
which she paid for in part with the children's SSDI benefits, should not be
equitably distributed but retained entirely by her. In support, defendant cites 42
U.S.C. § 407, which limits the transfer or assignment of payments made under
the statute.
Under 42 U.S.C. § 407,
The right of any person to any future payment under this subchapter shall not be transferable or assignable,
A-3500-21 19 at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
[42 U.S.C. § 407(a).]
Defendant also cites federal regulations which require a "representative
payee," who receives the Social Security benefits on a beneficiary's behalf,
among other things, to:
(a) Use the benefits received on [the beneficiary's] behalf only for [the beneficiary's] use and benefit in a manner and for the purposes he or she determines, under the guidelines in this subpart, to be in [the beneficiary's] best interests;
(b) Keep any benefits received on [the beneficiary's] behalf separate from [the representative payee's] own funds and show [the beneficiary's] ownership of these benefits unless [the payee] is [the beneficiary's] . . . natural or adoptive parent . . . and lives in the same household with [the beneficiary] . . . ; [and]
(c) Treat any interest earned on the benefits as [the beneficiary's] property . . . .
[20 C.F.R. § 404.2035(a)–(c).]
See also Wash. State Dep't of Soc. & Health Servs. v. Guardianship Est. of
Keffeler, 537 U.S. 371, 376-77 (2003) (citing 20 C.F.R. § 404.2035).
A-3500-21 20 In Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973), the
United States Supreme Court held that section 407 "imposes a broad bar against
the use of any legal process to reach all social security benefits" by "all
claimants, including a State." Id. at 417. There, the Court prohibited this State
from reimbursing itself for payments made by its welfare agency, the Essex
County Welfare Board, to the recipient from the recipient's future real or
personal property. Id. at 413-14, 417. The Philpott Court analogized the anti-
reassignment clause of 42 U.S.C. § 407 to that exempting veterans' benefits
under 38 U.S.C. § 3101. Id. at 416-17 (citing Porter v. Aetna Cas. & Sur. Co.,
370 U.S. 159, 161-62 (1962)). The Court reasoned that because "the funds on
deposit were readily withdrawable and retained the quality of 'moneys' within
the purview of [section] 407," this State could not employ legal process to
recoup its funds from the recipient's Social Security benefits. Ibid.
In Porter, a U.S. Air Force veteran "suffered a judgment at the hands of"
Aetna Casualty and Surety Company, which sought attachment of "a checking
account and two accounts in local federal savings and loan associations." 370
U.S. at 160. The accounts were established "with funds received from the
[United States] Veterans' Administration as disability compensation" pursuant
to 38 U.S.C. § 3101(a). Id. at 159-60. As the Court explained, it has long "been
A-3500-21 21 the policy of the Congress to exempt veterans' benefits from creditor actions as
well as from taxation." Id. at 159-60. Citing a distinction between the holdings
of Trotter v. Tennessee, 290 U.S. 354 (1933) and Lawrence v. Shaw, 300 U.S.
245 (1937), the question before the Court was whether the funds deposited in
the savings and loan associations made the deposited funds "permanent
investments" or "moneys" that were "subject to demand." Id. at 160-62. Only
the latter was subject to the exemption. Id. at 161. The Porter Court reasoned
that because "the funds were subject to immediate and certain access[,]" "were
not of a speculative character," and "plainly had 'the quality of moneys,'" the
funds "should remain inviolate." Id. at 161-62.
In Keffeler, the Supreme Court addressed whether a state agency receiving
Social Security funds on behalf of children under its care violated section 407
when it reimbursed itself with those funds. 537 U.S. at 375. The Court
considered whether the agency employed "other legal process" in the
recoupment of expenses while it was in possession of the Social Security
benefits. Id. at 383. The Keffeler Court defined the term "other legal process"
in relation to the preceding terms "execution, levy, attachment, garnishment, or
other legal process" under the interpretive cannons of noscitur a sociis and
ejusdem generis. Id. at 383-84 (quoting 42 U.S.C. § 407(a)).
A-3500-21 22 The Court concluded that
"other legal process" should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi- judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability.
[Id. at 385.]
Because the state agency was in possession of the Social Security funds, the
Keffeler Court held it had not employed a legal process violative of the anti-
reassignment clause in section 407. Id. at 386, 392.
Furthermore, in Lamb v. Connecticut General Life Insurance Co., 643
F.2d 108 (3d Cir. 1981), the Third Circuit held that the unfrozen offset of an
insured individual's private insurance policy payment by the cost -of-living
increase in the individual's Social Security benefit did not violate the anti -
reassignment clause of section 407. Id. at 111. Since Lamb received her full
Social Security payment and did not transfer any portion to the company, and
section 407 "does not address itself to the level of benefits that a private
insurance program must pay to augment federal programs," the offset did not
violate the federal law. Ibid.
A-3500-21 23 Still, federal courts have held that Social Security benefits are exempt
even when commingled in deposit accounts. See, e.g., S & S Diversified Servs.,
L.L.C. v. Taylor, 897 F. Supp. 549, 552 (D. Wyo. 1995) (holding that Social
Security benefits deposited with another individual's annuity funds are
"absolutely exempt"); NCNB Fin. Servs., Inc., v. Shumate, 829 F. Supp. 178,
180-81 (W.D. Va. 1993), aff'd 45 F.3d 427 (4th Cir. 1994) (concluding that
reasonably traceable Social Security benefits commingled with other funds were
entitled to protection).
Here, the SSDI benefits defendant received for her two children were
commingled with personal funds in defendant's investment account, which was
declared part of the marital property and used to purchase the Edgefield Drive
home where defendant lived with the children. In addressing defendant's
argument that the funds were exempt, the judge explained:
[Defendant] believes that it should not be equitably distributed, but rather entirely retained by her, because she paid for it in part with the children's Social Security lump sum benefits received by her when she went on Social Security Disability in 2012. However, she provides no authority for that position. Additionally, the lump sum award represented the parties' children's entitlements to Social Security monthly payments retroactive to when defendant qualified for Social Security disability. As such the lump sum payments were to reimburse both parties for part of their cost of maintaining the children after defendant became
A-3500-21 24 disabled. Both parties contributed to the support and care of the children. Defendant provided their home and the majority of their day-to-day needs, and plaintiff paid for half of the children's separate expenses and some of defendant's expenses. The court must take into account the source of the funds that were used to purchase this home, in determining an equitable distribution of this asset. However, contrary to defendant's claim, the source here, the children's Social Security benefits, neither renders the property exempt from distribution nor favors defendant over plaintiff. In addition, defendant's argument ignores the fact that part of the purchase price came from her Oppenheimer Fund, which she admits was a marital asset.
We agree with the judge that the Edgefield Drive home is not categorically
exempt from equitable distribution merely because a portion of the funds used
to purchase the property were Social Security disability benefits. We are
satisfied that the funds are no longer "moneys," and the legal process—the
distribution—is not directly against the Social Security benefit payment. Cf.
Philpott, 409 U.S. at 416-17; NCNB Fin. Servs., Inc., 829 F. Supp. at 180. Using
Social Security funds to purchase a home is more analogous to a "permanent
investment[]" "of a speculative character" and less like a checking account.
Porter, 370 U.S. at 160-62. Further, as the judge recounted, "[t]he parties
agree[d] that the value of this asset for equitable distribution purposes [was]
$82,642." Defendant also made a profit of $154,261.85 on the property from
A-3500-21 25 the total proceeds of $429,000. Therefore, even if the Social Security benefits
were exempted, enough funds remained to cover the initial investment.
Next, defendant challenges the judge's application of certain alimony
factors codified in N.J.S.A. 2A:34-23(b). Specifically, defendant takes issue
with the judge's assessment of the "marital standard of living," "[her] primary
care of the children while [plaintiff] pursued advanced education and training,"
"the devastating effect of the equitable distribution determination," the denial of
"retroactive [p]endente [l]ite support," and "failing to award reimbursement
alimony . . . due to [defendant's] contributions to [plaintiff's] education and
subsequent earnings . . . and the [p]arties' ages at the time of the alimony award."
"The basic purpose of alimony is the continuation of the standard of living
enjoyed by the parties prior to their separation." Innes, 117 N.J. at 503. "[T]he
goal of a proper alimony award is to assist the supported spouse in achieving a
lifestyle that is reasonably comparable to the one enjoyed while living with the
supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16
(2000). It "is neither a punishment for the payor nor a reward for the payee."
Mani v. Mani, 183 N.J. 70, 80 (2005).
Pursuant to N.J.S.A. 2A:34-23, a court may order alimony "as the
circumstances of the parties and the nature of the case shall render fit, reasonable
A-3500-21 26 and just." See Gnall v. Gnall, 222 N.J. 414, 429 (2015) (concluding alimony
awards are "governed by distinct, objective standards defined by the Legislature
in N.J.S.A. 2A:34-23(b)"). As such, N.J.S.A. 2A:34-23(b) enumerates the
following factors for consideration:
(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;
(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
(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;
(7) The parental responsibilities for the children;
(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
A-3500-21 27 party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(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;
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
(13) The nature, amount, and length of pendente lite support paid, if any; and
(14) Any other factors which the court may deem relevant.
The statute continues:
In each case where the court is asked to make an award of alimony, the court shall consider and assess evidence with respect to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard.
[N.J.S.A. 2A:34-23(b).]
A-3500-21 28 "An alimony award that lacks consideration of the [above] factors . . . is
inadequate . . . ." Crews, 164 N.J. at 26.
As to the fourth factor, "'[t]he standard of living during the marriage is the
way the couple actually lived, whether they resorted to borrowing and parental
support, . . . [or] limited themselves to their earned income,' or if they chose to
accumulate savings." S.W. v. G.M., 462 N.J. Super. 522, 531 (App. Div. 2020)
(alterations in original) (internal citations omitted) (first quoting Glass v. Glass,
366 N.J. Super. 357, 371 (App. Div. 2004); and then citing Lombardi v.
Lombardi, 447 N.J. Super. 26, 36-37 (App. Div. 2016)). Nevertheless, the
determination of the marital budget is not formulaic. Id. at 533 (citing N.J.S.A.
2A:34-23(b)).
Contained in most marital budgets are expenses, which may not be associated with either the alimony payor or payee, including those associated with children who have since emancipated or whose expenses are met by an asset or a third-party source having no bearing on alimony. There are also circumstances where an expense is unrelated to either the payor or the payee but is met by that party on behalf of a child.
[Id. at 533-34.]
In S.W., we addressed whether the trial judge properly determined the
"numerical" "marital lifestyle." Id. at 530-31. There, "the judge's starting point
was defendant's current budget, as opposed to the marital lifestyle." Id. at 529.
A-3500-21 29 Although the judge reviewed the parties' testimony and case information
statements and defendant's pendente lite budget, id. at 529, we concluded that
"the trial judge disregarded the marital budget altogether and instead
supplemented defendant's current budget with some expenses she once enjoyed
during the marriage." Id. at 532. That methodology was "problematic because
it ignored the judge's own findings that the marital lifestyle 'subsumed' the
entirety of plaintiff's earnings." Id. at 532-33. We remanded the issue,
instructing that "consider[ation of] the supported spouse's ability to contribute
[the supported spouse's] own expenses and the amount of alimony necessary to
meet the uncovered sum" may only be considered once the marital lifestyle was
calculated. Id. at 534 (citing Crews, 164 N.J. at 32-33).
In determining an alimony award, the court may impute a party's income
from the "usual or former occupation," "the average earnings for that occupation
as reported by the New Jersey Department of Labor," or the "most recent wage
or benefit record." Elrom v. Elrom, 439 N.J. Super. 424, 435 (App. Div. 2015)
(quoting Child Support Guidelines, Pressler & Verniero, Current N.J. Court
Rules, cmt. 12, Appendix IX–A to R. 5:6A, at 2635 (2015)) ("These legal
precepts equally apply when establishing a party's obligation to pay alimony.").
However, "income from pension benefits that have been treated as an asset for
A-3500-21 30 equitable distribution purposes (those benefits reflecting work during the
marriage partnership) is not to be considered in determining alimony." Innes,
117 N.J. at 505. The opposite is true for income from pension benefits, or
portions thereof, not subject to equitable distribution. See ibid.
Here, in awarding defendant $2,000 per month in alimony, the judge
separately considered each factor under N.J.S.A. 2A:23-34(b), in conjunction
with the equitable distribution of the parties' property. The judge concluded
"that alimony, not equitable distribution, [was] the appropriate vehicle for
addressing defendant's declining income, now and in the future." The judge also
supported the alimony award by determining that variable future circumstances
would be more easily remedied through a modification of alimony based "upon
a substantial change in . . . circumstances."
Critically, in assessing the marital lifestyle, the judge stated:
[T]his marriage of medium duration saw an unconventional living arrangement in the latter half, but the parties remained a cohesive financial unit. They also continued their manner of sharing the care of their children, with defendant having the majority of the day- to-day care, and plaintiff helping directly with expenses and taking the children on weekends. While living apart frequently, they cooperated in their business activities until shortly before the end-date in 2014 . . . .
The parties amassed the marital estate largely through their mutual industry. Each had training and
A-3500-21 31 skills that well served their real estate investment business. Plaintiff went back to school and trained for a new career during the marriage, at some cost to the marital estate. Defendant's primary care of the children enabled plaintiff to work at his law enforcement career and carry on their real estate activities. Later it enabled him to return to school, work at teaching and then nursing, all while continuing the real estate development and management through the end-date of their marriage.
Plaintiff's career-ending incident caused a hiatus in their otherwise continuous success with their respective professional careers and investments. However, in a remarkably short time he recovered enough to make a plan and commence training for a new career. Although defendant suffers from an ongoing mental health disorder, there was only one week during the marriage when she was hospitalized for it. There is no evidence that it otherwise affected the parties' day to day life or her care of the children.
The parties had a very comfortable standard of living. One of the boys went to parochial school at some point. Defendant had a series of high-end cars including an Acura, a Jaguar and a Mercedes. They vacationed in Costa Rica annually for two weeks. They had the ability to own their home, although they chose to rent for several years. They owned investment real estate. Each ended up buying a high-end middle-class home by the end of the marriage. Plaintiff is in a position to sustain this standard of living on his income. Defendant cannot do so on her income.
Overall, it is the mutuality of the parties' financial success that stands out in this marriage. While they encountered devastating occurrences, they overcame them with surprising ease and carried on as a high-
A-3500-21 32 functioning partnership. They each ended the marriage with comparable equity in their homes in addition to other assets.
Defendant specifically challenges the judge's assessment of the factors
enumerated under N.J.S.A. 2A:34-23(b)(4), 9, 10, 13, and 14. In addressing the
marital standard of living under N.J.S.A. 2A:34-23(b)(4), the judge explained:
The parties purchased a two-family home and vacant lot in Dover, N.J.[,] shortly after they married, and leveraged that property and subsequent properties to purchase and improve nine properties, selling them at a profit. These investments, plaintiff's personal injury awards, defendant's Social Security awards for herself and the children, and their salaries . . ., enabled them to have savings, at times, over [$100,000], to have defined contribution retirement funds worth almost [$200,000], . . . and save well over [$100,000] in college education funds for their sons. . . . [Defendant] listed the marital standard of living in her June 2015 Case Information Statement as requiring [$9,734] per month.
The judge recounted the parties' respective incomes, noting that "[a]t the
beginning of the marriage, defendant's earnings were greater than plaintiff's.
Then when she went on disability and plaintiff lost his law enforcement career,
they lived on comparable disability incomes, including defendant's SSDI, until
plaintiff started earning money as a nurse in 2012." The judge pointed out that
"[a]fter plaintiff's traumatic event, defendant's income, at approximately
$100,000 annually from her private disability, Social Security, the children's
A-3500-21 33 Social Security and [the] adoption subsidy, equaled or exceeded plaintiff's
income, including his pension, for a few years." Then, after "the adoption
stipend . . . terminated on [the child's eighteenth] birthday," defendant's annual
income "decreased from approximately $100,000 to $70,000." The judge also
considered the potential future decrease in defendant's income "upon her [sixty-
fifth] birthday, when her private disability insurance contract terminates " and
her income would be decreased by "$45,000 per year from that policy."
Meanwhile, according to the judge, "[p]laintiff enjoy[ed] an annual income of
approximately $216,9005 from his salary" as "a [p]sychiatric [n]urse
[p]ractitioner in a correctional facility" and "will collect his PFRS pension for
life."
The judge concluded that plaintiff had "enough income" to maintain the
marital standard of living after the divorce. On the other hand,
[d]efendant has decreased her housing cost by purchasing a farm in upstate New York, but she no longer has high-end multiple cars, her ability to contribute to savings has been eliminated, and these and other discretionary spending items have been replaced by higher expenses for necessities such as healthcare and health insurance. She was covered by [p]laintiff's ealth insurance throughout the marriage.
5 The judge's opinion identifies slightly different estimations of plaintiff's salary, ranging from $215,000 to $216,900. At the time of the opinion, the judge identified "his current income [as] $216,880." A-3500-21 34 Turning to the financial and non-financial contributions to the marriage
under N.J.S.A. 2A:34-23(b)(9), the judge explained:
Both parties participated actively in the acquisition of most of the properties, making the decisions together. Defendant performed the legal work for purchases and sales, and plaintiff was in charge of the construction of improvements. . . . Through work, earnings and disability incomes, both parties contributed substantially to the marital estate.
Defendant did most of the parenting of the boys after she became disabled in 2004, and a nanny was no longer needed. When the parties lived apart, the boys lived and went to school where defendant lived. They would spend most weekends with plaintiff unless they had an activity such as sports or camping that prevented them from going to his residence. Defendant's primary responsibility for the boys enabled plaintiff to spend a lot of time during the week at construction sites on the parties' properties.
The judge further acknowledged that "[d]efendant's care of the children's basic
needs during the week and her steady disability income enabled plaintiff to
attain an education for a new career and launch that career."
Considering the equitable distribution of the marital assets under N.J.S.A.
2A:34-23(b)(10), the judge recounted:
The equitable distribution of those assets that are subject to distribution will have left the parties in comparable positions. Each owns a home; plaintiff's is worth more and he has a mortgage on it. Defendant has no debt. The equity each party had in their respective
A-3500-21 35 homes at the end-date of the marriage is comparable. Other assets will have been divided equally or close to it. Each party received approximately $70,000 from the proceeds of sale of their last investment property. Defendant will have to pay plaintiff for his share of . . . defendant's 401K plan, $37,426, within [ninety] days.
In addition, the judge noted that "the portion of plaintiff's PFRS pension
that was not equitably distributed [was] eligible for the court to consider with
respect to alimony." Finally, considering pendente lite support under N.J.S.A.
2A:34-23(b)(13), the judge acknowledged that "[n]one was ordered." The judge
concluded that the "disparate picture of the parties' financial circumstances after
th[e] divorce is over" compelled an award of open durational alimony to
defendant "to cover her shortfall and provide some savings on an ongoing basis."
The judge found "extraordinary circumstance[s]" by virtue of "defendant's
disability and the [upcoming] termination of her disability income policy"
sufficient to take the case out of the limitations otherwise imposed by N.J.S.A.
2A:34-23(c) (limiting "the total duration of alimony" for any marriage "less than
[twenty] years in duration" "except in exceptional circumstances").
Contrary to defendant's claim, the judge employed the methodology we
endorsed in S.W., 462 N.J. Super. at 531, and we discern no basis to intervene.
We also reject defendant's assertion that the judge erred by failing to award
A-3500-21 36 reimbursement alimony. This is not a case where one spouse invested more into
household expenses while the other attended schooling and advanced in a
profession. Cf., e.g., Lynn v. Lynn, 91 N.J. 510, 512-13, 518 (1982) (holding
that an award of reimbursement alimony was warranted where the ex-wife, a
research analyst, supported the household "with the expectation" that her ex-
husband, a medical school student who made substantially lower contributions
to the household, would have greater earning potential to benefit both spouses).
Here, both spouses suffered devastating disabilities that prevented them from
engaging in their chosen professions. Furthermore, while pursuing a new
profession, plaintiff continuously contributed to the household expenditures.
Likewise, we reject defendant's claim that the judge erred by declining to
award retroactive pendente lite support to defendant despite noting "the gross
disparity between [the parties'] income . . . for . . . six years" and the current and
future "drop" in defendant's income. "The State has long recognized the power
of the judiciary to prevent irreparable harm and to preserve the status quo
through the device of awarding temporary financial support pending a full
investigation of the case." Mallamo v. Mallamo, 280 N.J. Super. 8, 11-12 (App.
Div. 1995) (italicization omitted). The Legislature has specifically authorized
pendente lite support awards to provide temporary financial support in pending
A-3500-21 37 matrimonial litigation. Id. at 12 (citing N.J.S.A. 2A:34-23). Pendente lite
support orders are subject to modification at the time final judgment is entered.
Ibid. "Any changes in the initial orders rest with the trial judge's discretion."
Slutsky v. Slutsky, 451 N.J. Super 332, 368 (App. Div. 2017).
In the July 20, 2016, order, the motion judge denied defendant's request
for pendente lite support, citing "the period of time in which the parties have
lived separate and apart, and given the general parity of their monthly incomes ."
At the time, the judge noted "it may ultimately be necessary to issue a spousal
support award" due to defendant's future loss of "several of the benefits
(derivative or otherwise) that she currently receives."
Subsequently, however, the trial judge found "no reason to order either
form of support retroactively," explaining:
Hindsight does not weigh those circumstances differently from how they were considered at that time. The alimony that the court orders now is prospective and is based on facts that exist now and in the future. Indeed, the judge who heard the [pendente lite] motion foretold the possible need for alimony in the future.
We agree with the judge's decision and discern no basis to overturn the judge's
denial of retroactive pendente lite support.
Finally, defendant argues the judge abused her discretion by denying her
request to order plaintiff to maintain an existing $500,000 life insurance policy,
A-3500-21 38 in effect since 1999. She submits that the pension statute, as amended in 1967,
"eliminat[ed] the election of a designated beneficiary in favor of a survivor
benefit for the member's spouse" and that the amended statute contain s no
provision for a divorced spouse. Therefore, according to defendant, "no
provision was made for the loss of the PFRS pension upon [plaintiff]'s death ."
Plaintiff's PFRS pension is governed by N.J.S.A. 43:16A-1 to -68.
N.J.S.A. 43:16A-1(24)(b), as amended, defines widow as a "woman to whom a
member or retirant was married on the date of his death and who has not
remarried." "Thus, to be entitled to a widow's pension, the widow must have
been married to the member on the day he died and not remarried. No provision
is included for divorced spouses . . . ." La Sala v. La Sala, 335 N.J. Super. 1, 8
(App. Div. 2000); see also N.J.S.A. 43:16A-12.1(a) ("Upon the death after
retirement of any member of the retirement system there shall be paid to the
member's [surviving spouse] a pension of [fifty percent] of final compensation
for the use of [the surviving spouse], to continue [until death or remarriage]
. . . .").
Separate from a survivor benefit, under N.J.S.A. 43:16A-12.3, a PFRS
pension recipient may elect a beneficiary upon his or her death. Under that
provision, the "designation of beneficiary by a member or retirant shall be made
A-3500-21 39 in writing on a form satisfactory to the retirement system, and filed with the
retirement system." Ibid. Furthermore, "[t]he provisions of this section shall be
construed separately with respect to each of the death benefits for which a
beneficiary is designated by the member or retirant." Ibid.
In Larrison, we reversed the trial court order requiring the pensioner-
spouse to maintain life insurance to protect the non-pensioner spouse's equitably
acquired share of pension benefits in the event of the pensioner-spouse's death
where the pension plan did not provide for survivor benefits to an ex-spouse.
392 N.J. Super. at 18-19. We began our analysis by
noting that "[a] deferred distribution . . . amounts to a contingency distribution dependent upon the survival of the pensioner spouse." Accordingly, if the pension does not provide survivor benefits to an ex-spouse, then [the ex-spouse's] benefits cease when defendant dies. As this court stated, "when he gets, she gets; when he dies, so does her benefit."
[Id. at 18 (first alteration in original) (quoting Claffey, 360 N.J. Super. at 261).]
We reasoned that because the pensioner-spouse's "pension plan [did] not provide
for survivor benefits to an ex-spouse," if the pensioner-spouse predeceased the
non-pensioner spouse, then the non-pensioner spouse would "no longer receive
her share of his pension benefit" and there was "no legal support for the trial
court's order directing otherwise." Id. at 19.
A-3500-21 40 Here, in her written opinion, the judge explained:
[D]efendant should have the security of life insurance or a survivor benefit to meet defendant's needs should plaintiff predecease her. The testimony was unclear as to whether defendant will be cut off from the survivor benefit connected to plaintiff's PFRS pension once the parties are divorced. If in fact defendant is no longer eligible for that benefit after this divorce, plaintiff shall name defendant as beneficiary of at least $250,000 of the life insurance in place now on his life. If defendant does not have proof of her status with respect to the survivor benefit, she shall inform counsel who shall provide the proof to defendant. If defendant remains eligible for the survivor benefit, plaintiff shall provide proof that she is the named beneficiary. If she is no longer eligible, plaintiff shall provide proof that she is the named beneficiary of insurance on his life with a face value of at least $250,000.
Under N.J.S.A. 43:16A-1(24)(b) and -12.1, it is clear that defendant is no
longer eligible for the survivor benefit. However, the judge did not require
plaintiff to maintain a $250,000 life insurance policy securing defendant's
equitably acquired share of plaintiff's PFRS pension benefits in the event of
plaintiff's death. Instead, the judge imposed the requirement to secure
defendant's alimony award as permitted by law. See Konczyk v. Konczyk, 367
N.J. Super. 512, 515 (App. Div. 2004) (noting that "parties may use various
devices, such as life insurance or trusts, to secure an alimony obligation"); see
also N.J.S.A. 2A:34-23. In the DJOD, the judge specified:
A-3500-21 41 Plaintiff shall maintain insurance on his life with a face value of at least $250,000 with defendant as the sole, named beneficiary of the death benefit, so long as plaintiff has an alimony obligation to defendant. This provision can be satisfied by proof to defendant and the court that defendant is the named recipient of the survivor benefit on plaintiff's pension and that she remains eligible after the parties are divorced.
[(Emphasis added).]
Accordingly, there was no error by the judge and no abuse of discretion in the
judge's decision to limit the life insurance policy to $250,000.
Affirmed.
A-3500-21 42
Related
Cite This Page — Counsel Stack
J.Z. v. Y.C.L., Counsel Stack Legal Research, https://law.counselstack.com/opinion/jz-v-ycl-njsuperctappdiv-2024.