J.P. VS. M.P. (FM-18-0919-18, SOMERSET COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0053-19T4
J.P.,1
Plaintiff-Respondent,
v.
M.P., n/k/a M.K.,
Defendant-Appellant.
__________________________
Submitted October 20, 2020 — Decided October 29, 2020
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0919-18.
Fox Rothschild LLP, attorneys for appellant (Eric S.
Solotoff, of counsel and on the briefs; Lindsay A.
Heller, on the briefs).
Pamela M. Cerruti, attorney for respondent.
PER CURIAM
1
We utilize initials to protect the parties' privacy.
Defendant M.K., formerly M.P., appeals from a June 19, 2019 dual final
judgment of divorce entered following a trial, and challenges an August 9, 2019
order denying her motion for reconsideration. We affirm.
Judge Haekyoung Suh tried this matter during three days in May 2019, in
which one-hundred and twenty-seven exhibits were admitted into evidence. The
judge noted defendant had retained and terminated four attorneys, and
interviewed fifteen attorneys in person and eighty-five by telephone, yet
defendant tried the case herself having retained counsel to serve only as a
consultant.
Judge Suh also handled the matter pendente lite and entered a January 18,
2019 order adjudicating defendant's motion for pendente lite support. Defendant
filed the motion herself and retained an attorney to argue it. The judge denied
defendant's request that plaintiff pay her direct pendente lite support and made
the following findings:
The parties establish[ed] the marital status quo
was maintained through joint access to marital accounts
in which monies from plaintiff's base salary and hefty
annual bonus were placed. Each party has now
transferred a significant portion of this money to their
personal accounts. They can carry on as they did during
the marriage, each now with access to the same money,
but in their respective personal accounts.
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Further, with defendant having access to
$540,000 in her personal account, she fails to
demonstrate a need for pendente lite support. On top
of the $540,000 . . . , she also received a $[2000] line
of credit per month on an American Express Card . . .
to fund her and the children's expenses.
To the extent the parties consume these funds,
[they] may file motions to liquidate additional assets to
meet their needs . . . .
The judge restrained the joint brokerage and savings accounts and ordered
plaintiff to "use the funds he transferred to his personal account, his base-salary
wages, and upcoming bonus monies to pay the bills of the house." Specifically,
the judge ordered plaintiff to pay the "utilities, property taxes, lawn care, home
security system, car insurance, medical insurance, dental insurance,
homeowner's insurance and the children's extracurricular expenses." The trial
occurred four months after entry of the pendente lite order.
At the outset of her written decision, the judge addressed the parties'
credibility. She found plaintiff more credible than defendant, noting defendant's
testimony was inconsistent and she filed inaccurate Case Information
Statements (CISs) claiming the joint marital expenses as her own. The judge
found the CIS defendant relied upon at trial "undermined her credibility" and a
CIS she filed one month before the trial "unreliable."
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The parties cohabitated before the marriage and were married for nearly
twenty years at the time plaintiff filed the complaint for divorce i n May 2018.
Four children were born of the marriage who were unemancipated. Because of
defendant's issues with alcohol, which led to a DUI conviction and mental
instability, plaintiff received custody of the three younger children. The eldest
child had a fractured relationship with plaintiff and remained with defendant
pendente lite before leaving for college in Fall 2019. Ultimately, the judge
awarded the parties joint legal and physical custody, and set an alternating week
parenting schedule for the three younger children requiring plaintiff to transport
them for parenting time until defendant's license was restored.
The parties were relatively young at the time of trial; plaintiff was forty -
six and defendant was forty-eight years of age. The judge found plaintiff was
the breadwinner, earning a gross income of $1,933,404 in 2018, which
comprised of a base salary, bonus, and equity awards. His 2018 net income was
$1,079,733, and his net earned income was $44,347 per month. Defendant was
a homemaker throughout the marriage. The judge concluded the parties enjoyed
"an upper class standard of living during the marriage," characterized by
ownership of a $1.4 million mortgage-free marital home, ownership of three
vehicles "paid without financing," membership at a country club enjoyed by
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plaintiff, and "[d]efendant['s] regular[] purchas[es of] luxury shoes and
shop[ping] incessantly, buying clothes, belts and jewelry." The judge credited
plaintiff's testimony that the family budget was $27,848 per month or $334,176
per year and the children's share of the expenses was $87,410 per year.
Weighing the N.J.S.A. 2A:34-23.1 statutory factors, the judge ordered an
equal equitable distribution of the marital assets, which totaled in excess of $10
million as of the date of complaint. The judge ordered defendant could continue
to reside in the marital residence and bear its expenses until the youngest child
graduated from elementary school, when the residence would be sold, and the
proceeds divided equally. The judge ordered plaintiff to retain a 2016 Jeep
Grand Cherokee and transfer title to a 2011 Chevrolet Suburban operated by
defendant to her, in addition to a 2018 Jeep Grand Cherokee operated by the
parties' son. The judge ordered defendant's diamond stud earrings and Cartier
bracelets sold and the proceeds equally divided because "[n]either party wished
to retain" them.
The judge considered the N.J.S.A. 2A:34-23(b) statutory factors and
awarded defendant non-taxable limited duration alimony for thirteen years and
four months of $13,195 per month. The judge found plaintiff and the three
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younger children had needs of $33,168 per month, leaving a surplus of $11,179.
The judge noted each party would
walk away from the marriage with over four million
dollars and no liabilities. . . . While the parties derive
income through investment of assets, only plaintiff has
the skill to create more wealth. Defendant has no
ability to invest money and once she receives her
equitable distribution, she will not know how to make
her investments grow without a financial advisor.
The judge also noted the "court denied pendente lite support since defendant had
transferred over $500,000 from the parties' joint . . . [b]ank account into accounts
she exclusively controlled. Plaintiff however continued to pay the Schedule A
expenses, including the 2018 taxes from his personal account since the court
froze the [parties' brokerage account]." 2
Addressing defendant's needs, the judge noted
[d]efendant requested half of plaintiff's income going
forward. Her most recent self-prepared CIS is bloated
and lacks credibility. To set the appropriate amount of
alimony the court relies on the statement of expenses
set forth in plaintiff's most recent CIS and defendant's
July 19, 2018 CIS, which was prepared with the
assistance of counsel.
The judge reduced defendant's Schedule A expenses because certain line items
were either unexplained or not necessary "given the excellent condition of the
2
The record reveals the parties owed federal taxes of $127,610 for 2018.
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former marital residence . . . ." She also reduced defendant's Schedule B
expenses by $4200 "for a car payment she does not have" and because defendant
would be operating the 2018 Jeep, which did not require repair, and "the
Suburban . . . will likely be junked." The judge stated: "Defendant claims she
needs $38,031 per month to cover her Schedule C expenses. Many of her line
items are unsupported, inflated, redundant, exaggerated, or incorporated into
child support." Regarding certain Schedule C expenses, the judge commented
"[i]t is undisputed that defendant did not participate in golf club memberships
or sports during the marriage[.]" The judge "trim[med] defendant's . . . Schedule
C expenses so they align with the reasonable standard of living during the
marriage and, where applicable, match plaintiff's reported expenses." Notably,
the judge's Schedule C analysis included a savings component for defendant
equivalent to the entire sum that plaintiff's CIS indicated the parties set aside as
savings per month during the marriage.
The judge concluded defendant did not require permanent alimony
because of the length of the marriage, the parties' relatively young ages, the
"tremendous savings cushion" created by the "over $4.5 million" in equitable
distribution defendant would receive and because "[d]efendant can begin
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drawing on her significant retirement assets, including 401(k) and IRAs when
she turns [sixty-two]" at the conclusion of the limited duration period.
The judge calculated child support using the Child Support Guidelines,
designating defendant the parent of primary residence, and thereafter reduced
child support to account for the parties' shared controlled expenses , which
yielded a figure of $340 per week. Then the judge applied the statutory child
support factors and increased the child support because of "the children's
extensive expenses as detailed by plaintiff's testimony . . . and the great disparity
in the parties' earning capacities[.]" She noted "[p]laintiff proposed that the
parties be responsible for the total $87,410 child support expenses in the
proportion of [seventy-five percent] plaintiff and [twenty-five percent]
defendant." However, according to the guidelines, the judge found plaintiff's
proportionate share of the income to be eighty-five percent and added $1140 per
week for a total child support figure of $1480 per week. Although the children
each had more than $100,000 in their respective 529 accounts, the judge ordered
plaintiff to cover "100% of any" uncovered college expense.
Each party sought counsel fees. The judge denied the requests and noted
defendant failed to submit a certification of services.
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Each party filed a motion for reconsideration of the final judgment. The
judge granted plaintiff's and denied defendant's motion. Relevant to this appeal,
the judge reduced alimony to $12,845 per month because the figure set at trial
included the children's orthodonture expenses. Defendant, represented by
counsel, filed a new CIS, and also sought reconsideration of the alimony award
arguing the savings component was inadequate and that the alimony did not
allow her a standard of living comparable to plaintiff. Defendant requested the
limited duration be extended to eighteen years and eleven months, and also
sought rehabilitative alimony. The judge denied defendant's requests for the
same reasons she explained in the trial decision and rejected defendant's request
for rehabilitative alimony "[d]ue to the reservations expressed by defendant in
following through with employment and educational programs, and the times at
which defendant contradicted herself stating she wishes to be a full-time
mother."
The judge also granted in part plaintiff's motion to reconsider the child
support. Plaintiff argued the parties' eldest child was above the guidelines age.
The judge agreed and recalculated the guidelines using the three younger
children, applying the same methodology expressed in the trial decision, which
reduced the guidelines support amount to $306 per week. The judge also
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adjusted the child support by deducting the expenses for the 2018 Jeep holding
"defendant [is] solely responsible for any payments related thereto, now being
the owner of that vehicle[, and that t]hese Schedule B expenses were already
included in her alimony award." The judge concluded the children's
supplemental expenses were $81,610 and after deducting the guidelines level
child support, plaintiff's eighty-five percent share of the remaining expenses was
$55,843.30 per year, or $1074 per week, for a total weekly child support
obligation of $1380.
Defendant also sought reconsideration of the child support arguing it did
not include the country club membership, school lunches, spending money,
gifts, and travel expenses for the parties' eldest child. The judge rejected the
argument, noting child support was calculated based on information provided in
plaintiff's testimony and
defendant offered only a defective CIS at the time. . . .
[Regardless, t]he court considered club and camp fees
during the initial calculations . . . but declined to
incorporate those costs without any proof as to the
actual expenses incurred. Defendant failed to offer that
proof at the time of trial when she had the opportunity.
In any case, she again fails to provide such proof.
Defendant also sought reconsideration of the decision to sell and split the
proceeds of the diamond earrings and Cartier bracelets, and instead sought to
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keep the items. The judge denied the motion, finding defendant testified she did
not wish to retain the jewelry.
Defendant raises the following arguments on appeal:
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S REQUEST FOR PENDENTE LITE
SUPPORT AND ORDERING MINIMAL LIMITED
DURATION ALIMONY, REQUIRING HER TO USE
MARITAL ASSETS FOR SUPPORT IN LIEU OF
PLAINTIFF'S SUBSTANTIAL INCOME.
A. CONTRARY TO N.J.S.A. 2A:34-23(C), THE
TRIAL COURT'S ALIMONY AWARD
PROVIDES PLAINTIFF WITH A SUPERIOR
ABILITY TO MAINTAIN THE MARITAL
STANDARD OF LIVING AS COMPARED TO
DEFENDANT WHILE DISREGARDING ITS
OWN FACT FINDINGS AS TO MARITAL
LIFESTYLE.
B. THE TRIAL COURT'S FAILURE TO
INCLUDE PLAINTIFF'S PRESENT INCOME
IN THE ALIMONY CALCULUS IS
REVERSIBLE ERROR.
C. THE TRIAL COURT'S AWARD OF
LIMITED DURATION ALIMONY
CONSTITUTES REVERSIBLE ERROR
FOLLOWING A MARRIAGE THAT WAS
[NINETEEN] YEARS AND OVER [TWENTY]-
YEAR RELATIONSHIP OF FINANCIAL
DEPENDENCY.
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D. THE TRIAL COURT FAILED TO PROVIDE
DEFENDANT WITH A SAVINGS
COMPONENT CONSISTENT WITH THE
MARITAL LIFESTYLE.
E. THE TRIAL COURT FAILED TO
QUANTIFY THE AMOUNT OF INCOME
EARNED FROM DEFENDANT'S EQUITABLE
DISTRIBUTION AWARD WHEN
CALCULATING ALIMONY WHILE
UTILIZING SAME AS A BASIS THEREOF.
F. THE TRIAL COURT FORCED
DEFENDANT TO SPEND DOWN HER SHARE
OF MARITAL ASSETS IN LIEU OF
PENDENTE LITE SUPPORT DESPITE
PLAINTIFF POSSESSING THE ABILITY TO
PAY WITH HIS MILLIONS OF DOLLARS IN
POST-COMPLAINT INCOME.
G. THE TRIAL COURT CANNOT FORCE
DEFENDANT TO MAINTAIN THE MARITAL
RESIDENCE WITH HER INEQUITABLE
ALIMONY AWARD WHILE GRANTING
PLAINTIFF A DELAYED DISTRIBUTION OF
THE ASSET.
H. THE TRIAL COURT'S REDUCTION OF
DEFENDANT'S AUTO EXPENSES AND
FORCING HER TO DRIVE [THE ELDEST
CHILD'S] VEHICLE MUST BE REVERSED.
I. TO THE EXTENT THE COURT'S AWARD
OF ALIMONY WAS IMPROPER, SO TOO
WAS ITS ORDER REGARDING LIFE AND
DISABILITY INSURANCE.
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POINT II
THE TRIAL COURT'S HOLDINGS AS TO
EQUITABLE DISTRIBUTION OF JEWELRY AS
THOUGH OUR STATE IS ONE OF COMMUNITY
PROPERTY RATHER THAN EQUITABLE
DISTRIBUTION MUST BE REVERSED.
POINT III
THE TRIAL COURT'S RECONSIDERED CHILD
SUPPORT AWARD CONSTITUTES REVERSIBLE
ERROR BECAUSE THE COURT FAILED TO MAKE
ANY FINDINGS OF FACT OR CONCLUSIONS OF
LAW AS TO [THE ELDEST CHILD'S] REMOVAL
FROM THE GUIDELINES CALCULATION AND
HIS EXPENSES AT COLLEGE.
POINT IV
THE TRIAL COURT'S DENIAL OF DEFENDANT'S
REQUEST FOR COUNSEL FEES WITHIN THE
TRIAL DECISION AND RECONSIDERATION
ORDER CONSTITUTES REVERSIBLE ERROR.
Our review of a trial court's fact-finding in a non-jury case is limited.
Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general
rule is that findings by the trial court are binding on appeal when supported by
adequate, substantial, credible evidence. Deference is especially appropriate
when the evidence is largely testimonial and involves questions of credibility."
Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). While we owe
no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v.
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Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we do owe substantial
deference to the Family Part's findings of fact because of that court's special
expertise in family matters. Cesare, 154 N.J. at 412. Therefore, we will only
reverse the judge's decision when it is necessary to "ensure that there is not a
denial of justice because the family court's conclusions are clearly mistaken or
wide of the mark." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010)
(citations omitted).
We apply an abuse of discretion standard when reviewing challenges to
the amount and allocation of equitable distribution. Borodinsky v. Borodinsky,
162 N.J. Super. 437, 443-44 (App. Div. 1978). Similarly, a trial court's rulings
on alimony, child support, and the security necessary to assure the payment of
these obligations are discretionary and should not be overturned unless the trial
court abused its discretion, failed to consider applicable legal principles, or
made findings unsupported by the evidence. Gordon v. Rozenwald, 380 N.J.
Super. 55, 76 (App. Div. 2005); Jacoby v. Jacoby, 427 N.J. Super. 109, 116
(App. Div. 2012); S.W. v. G.M., 462 N.J. Super. 522, 535 (App. Div. 2020).
Likewise, we will disturb an attorney's fee decision "only in the clearest
case of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div.
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2000). We also review a decision on a motion for reconsideration under the
same standard. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).
Applying these principles, we conclude that Judge Suh's factual findings
are fully supported by the record and, in light of those facts, her legal
conclusions are unassailable. She carefully reviewed the relevant evidence and
fully explained her reasons in a logical and forthright manner, applying the
relevant statutory factors to adjudicate every issue. Neither the record nor
defendant's arguments reveal anything so "wide of the mark" as to require our
intervention. Parish, 412 N.J. Super. at 48.
We add that defendant's arguments under points I(C), I(G), I(I), II, III, and
IV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). We briefly address her remaining arguments.
Defendant's alimony-related arguments in I(A) and I(B) are misplaced.
Contrary to her claims, the judge followed the law in describing the marital
lifestyle, quantifying it, and attributing the marital expenses to the appropriate
party. S.W., 462 N.J. Super. at 532-34. Defendant's non-taxable alimony alone
equaled forty-six percent of the marital family budget. With the addition of
child support, defendant received sixty-seven percent of the family budget.
After paying defendant alimony and child support, plaintiff has insufficient
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funds from his net earned income to meet his portion of the budget along with
his eighty-five percent share of children's expenses and all uncovered college
costs. Plaintiff must expend his share of the assets and supplemental income to
meet his and the children's needs.
Furthermore, the judge clearly used plaintiff's 2018 income, specifically
his monthly net average earned income set forth in his CIS, to calculate his
support obligations. Considering the trial occurred in May 2019, before
plaintiff's total compensation for that year was known, it was not an error for
the judge to rely on his last full year's-worth of income. Contrary to defendant's
claims, the judge did not use plaintiff's six-year average income to determine
the amount of alimony. Rather, a careful reading of the judge's decision shows
she described the amount and nature of plaintiff's income from 2013 to 2018 to
explain why he had the ability to pay.
We reject defendant's arguments in points I(D) and I(E) relating to the
savings component and earnings from equitable distribution. At the outset, we
note that as the proponent of the argument, the burden fell on defendant to
articulate to the judge the amount of savings to be included in the alimony award
and the earnings she would derive from equitable distribution. N.J.R.E.
101(b)(1).
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Defendant testified she believed the parties saved approximately $60,000
per month stating: "That's how we built [the] . . . brokerage account." However,
she presented no evidence the account balance increase was due to savings. On
cross-examination, she could not explain how the $60,000 figure was possible,
considering it exceeded plaintiff's salary. Instead, defendant claimed the
savings figure, reported as $64,425.75 per month in her November 16, 2018 CIS,
was formulated on the advice of an attorney.
We have stated that savings may be considered to protect "income being
derived from alimony[,] . . . to meet needs in the event of a disaster, to make
future major acquisitions, . . . and for retirement." Lombardi v. Lombardi, 447
N.J. Super. 26, 39 (App. Div. 2016). However, "[t]he most 'appropriate case' in
which to include a savings component is where the parties' lifestyle included
regular savings." Ibid. (citations omitted).
In addition to awarding defendant a substantial equitable distribution, the
judge secured alimony by requiring plaintiff to maintain life and disability
insurance obligations, addressing most of the grounds justifying a savings
component according to Lombardi. The judge's decision noted that the parties'
brokerage account balance increased from $9011.85 in 2012 to $3,984,185 in
2018 and their checking and savings accounts decreased from $874,826 in 2012
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to $116,290 in 2017. However, these figures were not indicative of "regular
savings" as a characteristic of the marital lifestyle as envisioned in Lombardi.
Moreover, to the extent they were, these savings occurred during the last third
of the marriage and did not characterize how the parties handled their finances
throughout the marriage. Also, defendant did not prove the account balances
were the result of regular savings as opposed to passive growth from market
appreciation. Notwithstanding, the judge included a savings component in
alimony award.
The judge also considered the potential income to be derived from
equitable distribution. However, she concluded she could not speculate as to
defendant's earnings on her share of equitable distribution because defendant
would require the assistance of a financial professional. This conclusion was
reasonable, considering we previously cautioned trial courts not to assume the
rates of return from investments held by a supported spouse inexperienced in
investing when calculating alimony. Overbay v. Overbay, 376 N.J. Super. 99,
110-13 (App. Div. 2005).
We also reject defendant's argument in point I(F), which asserts the judge
erred by not awarding her pendente lite support. As we noted, although the
judge did not order a direct payment of pendente lite support, she did compel
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plaintiff to pay expenses on defendant's behalf. Furthermore, considering th e
pendente lite period was but a few months and with defendant having access to
the $540,000 she took from a marital account, she failed to demonstrate a need
for pendente lite support.
Finally, we reject the argument raised in defendant's point I(H) regarding
the 2018 Jeep. The parties' son does not own this vehicle; it was an asset subject
to equitable distribution. Considering the son was away at college and the
parties operated similar vehicles during the marriage, it was not an abuse of
discretion to award defendant a newer Jeep in equitable distribution.
Affirmed.
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