J.T.S. VS. S.R. (FM-14-1195-15, MORRIS COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3309-181
J.T.S.,2
Plaintiff-Respondent,
v.
S.R.,
Defendant-Appellant.
________________________
Submitted May 19, 2021 – Decided August 19, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FM-14-1195-15.
1
The parties filed separate appeals of the judgement of divorce and a March 19,
2020 order; defendant on April 3, 2019, under A-3309-18, and plaintiff on April
10, 2019, under A-3385-19. After the appeals were consolidated, plaintiff failed
to timely file a brief. His appeal was accordingly dismissed. Consequently, we
consider only the issues raised by defendant.
2
Pursuant to Rule 1:38-3(d)(3), we use initials to protect the confidentiality of
the participants in these proceedings.
Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant S.R. appeals from the Family Part's September 14, 2018
judgment of divorce and March 19, 2019 order denying, in large part, both
parties' motions for reconsideration. She challenges the trial judge's rulings
regarding parenting time, attorney's fees, child support, alimony, and equitable
distribution.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE FAMILY COURT ABUSED ITS DISCRETION
IN ORDERING UNSUPERVISED PARENTING
TIME FOR PLAINTIFF WHILE DISREGARDING
THE SUBSTANTIAL EVIDENCE IN THE RECORD
OF PLAINTIFF'S SUBSTANCE ABUSE ISSUES
AND NOT ORDERING PLAINTIFF TO COMPLY
WITH THE SUBSTANCE ABUSE EXPERT'S
RECOMMENDATIONS.
POINT II
THE FAMILY COURT ABUSED ITS DISCRETION
BY AWARDING ONLY A SMALL PORTION OF
THE ATTORNEY[S'] FEES THAT DEFENDANT
INCURRED IN THE DIVORCE LITIGATION.
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POINT III
THE FAMILY COURT ABUSED ITS DISCRETION
IN AWARDING ONLY $4,000 PER MONTH IN
CHILD SUPPORT.
POINT IV
THE FAMILY COURT ERRED IN ORDERING
THAT DEFENDANT WAS ENTITLED TO
ALIMONY FOR ONLY [FORTY-TWO] MONTHS.
POINT V
THE FAMILY COURT ERRED IN CALCULATING
THE AMOUNT OWED TO DEFENDANT IN PAST
DUE SUPPORT.
POINT VI
THE FAMILY COURT ABUSED ITS DISCRETION
IN AWARDING DEFENDANT ONLY [TWENTY]
PERCENT OF THE MARITAL INCREASE IN
VALUE OF . . . PLAINTIFF'S LAW FIRM.
POINT VII
THE FAMILY COURT ERRED IN ITS
DETERMINATION REGARDING THE
[MORRISTOWN] HOME.
POINT VIII
THE FAMILY COURT ERRED IN NOT CREDITING
DEFENDANT WITH HALF OF THE MONEY THAT
PLAINTIFF USED TO PAY DOWN PRE[]MARITAL
DEBT OF HIS OWN, RATHER THAN TOWARD
THE MARITAL OBLIGATIONS OF THE PARTIES.
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POINT IX
THE FAMILY COURT ERRED IN ORDERING AN
INSUFFICIENT AMOUNT OF LIFE INSURANCE
COVERAGE.
We conclude there is no merit to any of these arguments and affirm the
judgment of divorce and March 19, 2019 order in all respects.
I.
The parties were married on September 10, 2011. Plaintiff filed for
divorce on April 2, 2015. Two children were born during the marriage. A trial
was held over seven non-consecutive days. A judgment of divorce was entered
on September 14, 2018. Thereafter, defendant moved for reconsideration
requesting several amendments with regard to parenting time, attorney's fees,
arrears, child support, alimony, and equitable distribution. Defendant also
requested that the court enforce the payment schedule set forth in the judgment
of divorce. Plaintiff cross-moved for reconsideration of the judge's decisions
regarding parenting time, arrears, and two debts he was ordered to repay to
defendant. On March 19, 2019, the judge denied both parties' requests to make
substantive changes to the judgment of divorce but ordered plaintiff to comply
with the payment schedule.
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As an attorney, plaintiff was the primary wage earner during the marriage.
His average annual income from 2012 through 2015 was $452,541. Defendant
has a sporadic employment history, having worked only part-time for most of
her adult life. Before meeting plaintiff, she was a freelance makeup artist and
sold cosmetics. She was last employed as a tarot card reader, working one day
a week, but left that employment shortly after the parties were married.
Defendant collects rental income from four properties; three of which she co-
owns with her siblings and another which she owns by herself. For the purposes
of equitable distribution and alimony, the trial judge found defendant's post -
marital annual income was $30,000.
The parties met around June 2006 and began dating shortly thereafter. In
April 2009, plaintiff purchased a home in Morristown where the parties resided
during their marriage. Defendant gave up an apartment she shared with a
roommate and moved into the house with plaintiff soon after it was purchased.
At that time, unbeknownst to defendant, plaintiff was still married to his second
wife. His second marriage was dissolved in March 2010. The parties were
engaged to be married in September 2010.
In order to pay for the home, plaintiff contributed approximately $188,000
toward the down payment and closing costs, while defendant's parents provided
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another $60,000. Plaintiff also spent approximately $50,000 in home
improvements prior to the marriage. Title to the property was placed in
plaintiff's name only.
At trial, plaintiff testified that the parties never intended for defendant to
have any ownership interest in the home. He alleged that the $60,000 was an
interest-free loan to him, not defendant, with no repayment schedule. Defendant
disputed that the money was a loan to plaintiff, but rather a gift to her, from her
parents, to assist in the purchase of her first marital home. She claimed that she
agreed not be listed as an owner because plaintiff told her they would be unable
to secure a mortgage if she was placed on the deed due to her poor credit.
Defendant later testified, however, that when the home was purchased, she did
not have poor credit. Although she understood that her credit rating was unlikely
to prevent the parties from getting a mortgage, she agreed to the arrangement
because plaintiff gave her and her father his word that she would be added to
the deed later.
Defendant's father testified that he and his wife gave the money to their
daughter to help purchase her first home and did not expect to be repaid. He
believed the house would be placed in both parties' names, but testified that he
A-3309-18
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never spoke to plaintiff about how the property would be titled. The final
judgment of divorce granted plaintiff sole ownership of the property.
Plaintiff entered the marriage with over $300,000 of tax debt. He claimed
that he discussed his back taxes with defendant and that she entered the marriage
fully aware of the situation. Defendant testified that she began acting as
plaintiff's "personal accountant" in 2010. Because the parties opened a joint
account before they were engaged, she had a granular understanding of
plaintiff's finances. Defendant conceded that she knew plaintiff filed tax
extensions each year prior to the marriage, but testified that she was unaware of
the extent of the debt until the parties returned from their honeymoon, when they
learned he was being audited for each year from 2005 to 2010. During the
audits, defendant played a critical role in negotiating penalties, interest, and
payment plans with the Internal Revenue Service (IRS). Both parties took out
several lines of credit to service the tax debt.
In 2013, the IRS threatened to place a lien against the Morristown property
unless plaintiff made a lump sum payment. The parties borrowed $85,000 from
defendant's parents to pay the IRS. Defendant's father testified that he provided
the loan only because the parties were in danger of losing their home, and that
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plaintiff promised to pay him back. Defendant claims plaintiff used $486,000
of marital income to pay premarital tax liabilities.
Defendant argued that both before and during the marriage, plaintiff
abused drugs and alcohol. She testified that in 2008, plaintiff stopped going to
work on a regular basis due to his substance abuse and began having problems
with clients. Defendant convinced plaintiff to sell a bar that he owned in order
to refocus on his legal career. In 2009, after defendant allegedly found plaintiff
passed out in the bathroom, he attended a weekend seminar in an effort to get
his substance abuse under control. Plaintiff temporarily reduced his drug use,
but resumed shortly thereafter.
Defendant alleged that in 2010, the Trenton Bar Association investigated
plaintiff's suspected substance abuse after he failed a drug test required for a
life-insurance policy. She further alleged that in April or May of 2010, "two
people that looked like cops from the criminal investigation bureau" came to the
parties' home with a drug-sniffing dog and requested to search the house. She
refused, but then found cocaine and paraphernalia hidden throughout the home.
Defendant also testified that during the marriage, plaintiff consumed about six
bottles of vodka each week.
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M.K., defendant's former roommate, A.R., defendant's brother-in-law, and
A.C., the parties' former housekeeper and babysitter, also testified with regard
to plaintiff's purported substance abuse. M.K. alleged that plaintiff drank
excessively from 2006 until he moved out after filing for divorce. Although she
never saw plaintiff use any illicit substances, M.K. testified that she was with
defendant in 2010 when investigators from the Trenton Bar Association came to
the parties' home. When she helped defendant search the house, they discovered
dozens of small plastics bags with white residue inside of them. 3
A.R. testified that he observed plaintiff use cocaine on three occasions
between 2006 and 2010. A.C. testified that during the marriage, she disposed
of several empty bottles of vodka each week and occasionally found folded
dollar bills with white residue in the laundry.
Defendant's concern about plaintiff's drug use prompted her to organize
an intervention in January 2013. She testified that plaintiff abstained from drugs
and alcohol for a few months after the intervention, but began using again the
following St. Patrick's Day and continued through the end of their marriage.
3
No other evidence of the alleged investigation was submitted at trial or on
appeal.
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After plaintiff filed for divorce, he continued to deposit his earnings into
a joint account he shared with defendant. In July 2015, he ceased depositing all
of his wages and began putting $15,000 per month into the account to support
defendant and the children. He also continued to pay all schedule A (housing)
and B (transportation) costs of both parties. In January 2016, he reduced the
deposits to $8,400 per month, prompting defendant to file a motion requesting
that the court order plaintiff to provide pendente lite support.
Attached to the motion was an affidavit in which defendant made
allegations regarding plaintiff's purported drug abuse. To contest the affidavit,
plaintiff had blood and urine tests performed the day after he received notice of
the motion, and a hair-follicle test the following week. All of the samples tested
negative for illicit substances.
On March 21, 2016, the parties executed a consent order which set forth
plaintiff's pendente lite support obligation and a custody schedule. The order
also directed the parties to retain certain experts. Plaintiff was required to cover
all schedule A and B expenses for defendant and the children, which amounted
to $11,000 per month, maintain all health, life, and auto insurance policies the
parties had in place, and deposit an additional $12,000 per month into their joint
account as unallocated pendente lite support. The parties agreed to maintain the
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parenting-time status quo, which granted plaintiff supervised visitation with the
children every other weekend from 10:00 a.m. on Saturday to 8:00 p.m. on
Sunday, and every Monday and Wednesday from 5:00 p.m. to 8:00 p.m.
Plaintiff's mother was required to be present for a majority of his parenting time,
with overnights to occur at her house or plaintiff's sister's house.
Thomas Hoberman, CPA/ABV/CFF, was selected to perform a financial
analysis of the marital cashflow, and to assess the value of plaintiff's interest in
his law firm from the date of the marriage to the date he filed for divorce. The
parties also chose Gregg Benson, MA, to perform an evaluation of plaintiff's
alleged drug and alcohol abuse. The consent order indicated that the custody
schedule, including the supervised parenting-time requirement, would be
revisited upon submission of Benson's report. Both parties were directed to
promptly provide all of the documents and information requested by the experts,
and to fully cooperate in the evaluations.
In assessing the value of plaintiff's law firm, Hoberman utilized a
capitalized earnings calculation to valuate cash flow specific to plaintiff and
each of his two partners, rather than using the firm's cash flow as a whole and
taking plaintiff's interest. Based on the revenues generated by each partner, he
concluded that the value of plaintiff's interest in the firm increased by $167,000
A-3309-18
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during the marriage. He noted that the largest contributing factor to the increase
was the revenue generated by another partner. From 2011 through 2014,
plaintiff billed approximately $1,700,000 in fees. During the same period, his
partner billed approximately $5,660,000 in fees.
During Benson's evaluation, plaintiff had hair, nail, urine, and blood tests
performed on May 6, 2016 and July 12, 2016. He was instructed to undergo
testing within twenty-four hours on both occasions. Prior to trial, the judge also
directed plaintiff to get another panel of tests performed on a surprise basis. All
tests were negative. Benson's actual assessment of plaintiff consisted of two
interviews, totaling two hours and forty-five minutes, and two sessions during
which plaintiff completed a series of multiple-choice questionnaires. Benson
also interviewed defendant during the evaluation for a total of six hours. Benson
issued his report in June 2017, more than eleven months after the assessment
was completed. When it was finally submitted, it contained portions of another
patient's report.
Benson concluded that plaintiff's alleged substance abuse did not meet the
clinical criteria for drug or alcohol use disorder, but made certain
recommendations which defendant incorporated into a proposed parenting plan.
The plan gave plaintiff supervised custody of the children every other weekend,
A-3309-18
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from 6:00 p.m. on Friday to 6:00 p.m. on Sunday, and alternating Mondays and
Wednesdays, from 5:00 p.m. to 8:00 p.m. 4 It also required plaintiff to use
Soberlink, at his expense, for a period of one year, with testing to occur twenty-
four hours before pick-up, one hour after drop-off, and at 8:00 a.m., 1:00 p.m.,
and 10:00 p.m. during his parenting time. 5 Plaintiff agreed to use Soberlink for
a period of three months, but refused to comply with the one-year
recommendation.
In October 2017, plaintiff began reducing the amount of pendente lite
support he deposited each month, or foregoing deposits entirely. Defendant
received $8,038 of the $12,000 due in October 2017, $3,038 in November 2017,
$3,000 in December 2017, $1,500 in January 2018, and nothing in February or
March 2018. Plaintiff testified that he could no longer afford to pay $12,000
per month because he earned approximately $150,000 less in 2017 than 2016
and had substantial tax obligations. By the time of trial, plaintiff's arrears had
increased to more than $60,000.
4
The record is unclear when, but at some point during the trial, plaintiff was
permitted to begin exercising unsupervised parenting time.
5
Soberlink is a wireless alcohol monitoring system which includes a breathalyzer,
facial recognition capabilities, tamper detection, and real-time reporting to
designated monitoring parties. SOBERLINK, https://www.soberlink.com/faqs (last
visited July 7, 2021).
A-3309-18
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When formulating the parenting time schedule, the trial judge considered
all of the evidence regarding plaintiff's alleged substance abuse. He found A.C.
was only minimally credible, noting that her testimony seemed rehearsed and
mechanistic. Although the judge determined that M.K. and A.R. provided
reliable testimony, he found that they spoke only about events that occurred
prior to the 2013 intervention, and that no witnesses provided convincing
testimony of events that occurred after the intervention. The judge rejected
defendant's contention that the children would be in danger if plaintiff were
granted unsupervised parenting time, noting that, at that point in trial, plaintiff's
time with the children had not been supervised for several months.
The judge discredited Benson's report, finding it "provided little of
substance for [the] [c]ourt to review and rely upon." He admonished Benson for
using a template report and for interviewing defendant for more than twice as
long as the party actually being evaluated. The judge noted that Benson clearly
failed to consider that the parties were involved in an extremely contentious
divorce and described his approach as one of the most absurd things he's seen in
his life. He cited plaintiff's negative drug tests, and indicated that in addition to
the tests plaintiff took on his volition, and those required by Benson, the judge
had also required an additional panel of tests on a surprise basis. The final
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judgment of divorce granted plaintiff unsupervised parenting time every other
weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m., each Monday from
5:00 p.m. to 8:00 p.m., and every other Wednesday from 5:00 p.m. to 8:00 p.m.
As a condition of his parenting time, plaintiff was required to utilize Sober link
for a period of three months when picking the children up and dropping them
off.
II.
We begin with the well-established principle that our review of a Family-
Part judge's fact finding is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998).
We will not disturb any finding that is "supported by adequate, substantial,
credible evidence." Fattore v. Fattore, 458 N.J. Super. 75, 83 (App. Div. 2019)
(quoting Cesare, 154 N.J. at 411-12). Deference is especially appropriate here,
because the evidence in a bench trial is "largely testimonial and involves
questions of credibility." Cesare, 154 N.J. at 412 (quoting In re Return of
Weapons to J.W.D., 149 N.J. 108, 117 (1997)). A trial judge who observes
witnesses and listens to their testimony is in the best position to "make first-
hand credibility judgments about the witnesses who appear on the stand." N.J.
Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008). The legal
conclusions drawn by a trial judge, however, are always subject to our de novo
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review. Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013) (citing Dep't
of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007)).
A trial judge's decision to grant or deny a motion for reconsideration is
also reviewed for an abuse of discretion. Branch v. Cream-O-Land Dairy, 244
N.J. 567, 582 (2021) (citing Kornbleuth v. Westover, 241 N.J. 289, 301 (2020)).
Reconsideration is appropriate only if "1) the [c]ourt has expressed its decision
based upon a palpably incorrect or irrational basis, or 2) it is obvious 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). We do not disturb a trial judge's decision unless it "is made
without rational explanation, inexplicably departed from established policies, or
rests on an impermissible basis." Kornbleuth, 241 N.J. at 302 (quoting Pitney
Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super 378, 382 (App.
Div. 2015)).
We first address the trial judge's ruling regarding parenting time.
Defendant argues it was an abuse of discretion to implement a parenting plan
that did not fully adopt the recommendations set forth in Benson's report. She
contends that ample testimony elicited from multiple witnesses conclusively
established plaintiff's ongoing drug and alcohol abuse. By permitting plaintiff
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to exercise unsupervised parenting time, defendant argues the trial judge has
placed the health and safety of the parties' daughters in jeopardy. Further, she
criticizes the judge for failing to apply the statutory custody factors to the facts
of the case as required by N.J.S.A. 9:2-4, in the final judgment of divorce or
supplemental statement of reasons.
Contrary to defendant's contention, the trial judge properly exercised his
discretion in evaluating the methodology and reliability of Benson's report. This
was in accord with the judge's right "to accept or reject the testimony of either
side's expert, and [to] not adopt the opinion" of a report he reasonably found was
unreliable. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div. 2002) (citing
Carey v. Lovett, 132 N.J. 44, 64 (1993)).
Based on the credible evidence, the judge found that no witnesses
provided convincing testimony regarding plaintiff's drug use after the 2013
intervention. To the extent that he had abused drugs at one point in his life, the
evidence demonstrated that he had remained abstinent for at least five years
preceding the trial. The drugs tests, which were administered on a surprise basis,
and over a period of six months, were all negative. To accommodate defendant's
concerns, plaintiff was ordered to use Soberlink when picking the kids up and
dropping them off. Based on the circumstances that were presented to the trial
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judge, we discern no abuse of discretion in rejecting Benson's recommendations
or permitting plaintiff to exercise unsupervised parenting time. Further,
although the judge did not reference the custody factors under N.J.S.A. 9:2-4 in
his oral opinion, he conducted a sound application of each of the factors at the
outset of the hearing on the parties' motions to reconsider. Consequently, we
see no reason to disturb the trial judge's determination as to the parenting
schedule.
III.
Defendant next argues the trial judge abused his discretion by ordering
plaintiff to pay only $95,000 of her counsel fees. She contends that plaintiff's
failure to timely pay pendente lite support, his refusal to comply with Benson's
recommendations, and the stonewalling tactics he employed with regard to
financial discovery reasonably caused her to accrue over $280,000 in attorney's
fees.6 Defendant testified that sixty to seventy-five percent of her fees were due
to plaintiff's bad-faith conduct prior to and during trial. In light of the vast
income disparity between the parties, and plaintiff's conduct, defendant argues
plaintiff should be ordered to pay the entirety of her fees.
6
Plaintiff accrued approximately $80,000 in legal fees during the divorce.
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An award of counsel fees in matrimonial matters is discretionary.
Williams v. Williams, 59 N.J. 229, 233 (1971). A trial court abuses its discretion
only "if the discretionary act was not premised upon consideration of all relevant
factors, was based upon consideration of irrelevant or inappropriate factors, or
amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181,
193 (App. Div. 2005) (citing Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002)).
Rule 4:42-9(a)(1) permits the trial court to award counsel fees in a family
action pursuant to Rule 5:3-5(c). Rule 5:3-5(c), in turn, lists the following
factors a trial court must consider when deciding whether to award counsel fees:
(1) the financial circumstances of the parties; (2) the
ability of the parties to pay their own fees or to
contribute to the fees of the other party; (3) the
reasonableness and good faith of the positions
advanced by the parties both during and prior to trial;
(4) the extent of the fees incurred by both parties; (5)
any fees previously awarded; (6) the amount of fees
previously paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were incurred to
enforce existing orders or to compel discovery; and (9)
any other factor bearing on the fairness of an award.
In this case, the trial judge considered each of the requisite factors under
Rule 5:3-5(c), then ordered plaintiff to pay $95,000 of defendant's fees. The
judge found plaintiff's decision to unilaterally reduce pendente lite support
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payments was unreasonable and premised a portion of the fees awarded on his
failure to make timely payments. He explained that the award was due in two
parts to income disparity and one part plaintiff's conduct.
The judge rejected defendant's contention that the majority of her fees
were caused by plaintiff's bad faith positions. He found plaintiff reasonably
refused to comply with Benson's recommendation because the report and its
conclusions were not reliable. The judge also found that there was insufficient
evidence to conclude that plaintiff attempted to delay or obscure Dr. Hoberman's
financial report. He noted that defense counsel did not question Hoberman at
all about plaintiff's alleged failure to comply with discovery requests. The judge
found that both parties advanced positions that were unreasonable during
litigation, and that there appeared to be minimal efforts, on both sides, to resolve
any dispute that arose amicably, before resorting to letters to the court and
motion practice. Finally, the judge noted in his decision that he parsed through
defense counsel's invoices, with counsel's assistance, to ascertain which fees
were attributable to enforcement actions necessitated by plaintiff's bad -faith
conduct.
Contrary to defendant's claims on appeal, the trial judge's decision was
based on his consideration of the factors listed in Rule 5:3-5(c) and is consistent
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with the evidence submitted by both parties. Consequently, we discern no abuse
of discretion and defer to the trial court's sound reasoning and superior
familiarity with the matter.
IV.
Defendant also challenges the trial judge's decisions regarding child
support, the amount of life insurance plaintiff was ordered to maintain, and the
duration of her spousal support. We note that trial courts are afforded substantial
discretion in making both child support, Foust v. Glaser, 340 N.J. Super. 312,
315 (App. Div. 2001), and spousal support awards. Steneken v. Steneken, 367
N.J. Super. 427, 434 (App. Div. 1999). "If consistent with the law, such an
award 'will not be disturbed unless it is "manifestly unreasonable, arbitrary, or
clearly contrary to reason or to other evidence, or the result of whim or
caprice."'" Foust, 340 N.J. Super. at 315-16 (quoting Raynor v. Raynor, 319
N.J. Super. 591, 605 (App. Div. 1999)).
A. Child Support
When calculating a child support award, courts must consider:
(1) Needs of the child;
(2) Standard of living and economic circumstances of
each parent;
(3) All sources of income and assets of each parent;
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(4) Earning ability of each parent, including
educational background, training, employment skills,
work experience, custodial responsibility for children
including the cost of providing child care and the length
of time and cost of each parent to obtain training or
experience for appropriate employment;
(5) Need and capacity of the child for education,
including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered
support of others;
(9) Reasonable debts and liabilities of each child and
parent; and
(10) Any other factors the court may deem relevant.
[N.J.S.A. 2A:34-23(a).]
The final judgment of divorce required plaintiff to pay $4,000 per month
in child support, cover the entire cost of the kids' private preschool tuition and
health insurance, and pay for any unreimbursed medical expenses beyond $250.
Defendant argues the award is insufficient to enable the children to maintain the
lifestyle they enjoyed during the marriage.
The trial court applied and analyzed each of the required factors and
determined $4,000 per month was sufficient to enable the children to continue
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to enjoy the high standard of living that existed during the marriage. Defendant
fails to identify which activities or expenses are not covered by the award . At
trial, most of defendant's testimony pertaining to expenses during the marriage
related to her own activities, not the children's. The judge found defendant's
accounting of her monthly expenses, which she included in her Case Information
Sheet (CIS), was unreliable. The CIS included expenditures such as $1,657 per
month for lessons, $2,000 per month for restaurants, and $2,000 per month for
clothes. The child support obligation in this case resulted from the trial judge's
application of the factors listed in N.J.S.A. 2A:34-23(a), and is reasonably
calculated to support the lifestyle that was established by the credible evidence
at trial. Defendant has not presented any evidence the judge failed to consider
and has not articulated any reason the support award is insufficient.
Accordingly, we discern no abuse of discretion.
B. Life Insurance
Plaintiff was ordered to secure his child support obligation with two
$150,000 life insurance policies, naming defendant as trustee of the proceeds.
Defendant argues the trial court erred by failing to require plaintiff to maintain
at least $1,000,000 in coverage to insure his entire child support obligation, the
children's college expenses, and an appropriate cost of living increase.
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When the circumstances equitably require, a court may order an obligor
to secure his or her child support obligation with life insurance, naming the
children as beneficiaries. Grotsky v. Grotsky, 58 N.J. 354, 361 (1971). Unlike
alimony, however, outstanding child support obligations may be asserted against
a deceased parent's estate. Kiken v. Kiken, 149 N.J. 441, 452-53 (1997). In
addition to the life insurance policies required by the March 18, 2019 order,
plaintiff's child support obligation is also secured by his real estate holdings.
An April 2016 appraisal estimated plaintiff's Morristown home to be worth
approximately $1,000,000. He also owns another residential property in Morris
Plains. Because plaintiff owns substantial assets that may be used to financially
support his children in the event of his untimely death, we discern no abuse of
discretion in the judge's decision requiring plaintiff to maintain only $300,000
in coverage.
C. Duration of Alimony
With regard to the alimony award, defendant argues that the life of the
marriage was not the proper polestar in this case to set the duration of spousal
support. She contends that the judge erred in failing to adequately consider the
amount of time the parties were in a committed relationship prior to their
marriage, as well as her contribution to plaintiff's professional success.
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When reviewing spousal support determinations, this court gives
"deference to a trial judge's findings as to issues of alimony, i f those findings
are supported by substantial credible evidence in the record as a whole." Reid
v. Reid, 310 N.J. Super. 12, 22 (App. Div. 1998). Limited duration alimony, at
issue here, is expressly permitted by N.J.S.A. 2A:34-23(c), which provides:
For any marriage . . . less than [twenty] years in
duration, the total duration of alimony shall not, except
in exceptional circumstances, exceed the length of the
marriage . . . Determination of the length and amount
of alimony shall be made by the court pursuant to
consideration of all of the statutory factors set forth in
[N.J.S.A. 2A:34-23(b)].
[(emphasis added).]
Exceptional circumstances that may warrant an extension of the duration
of alimony include:
(1) The ages of the parties at the time of the marriage
or civil union and at the time of the alimony award;
(2) The degree and duration of the dependency of one
party on the other party during the marriage or civil
union;
(3) Whether a spouse or partner has a chronic illness or
unusual health circumstance;
(4) Whether a spouse or partner has given up a career
or a career opportunity or otherwise supported the
career of the other spouse or partner;
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(5) Whether a spouse or partner has received a
disproportionate share of equitable distribution;
(6) The impact of the marriage or civil union on either
party’s ability to become self-supporting, including but
not limited to either party’s responsibility as primary
caretaker of a child;
(7) Tax considerations of either party;
(8) Any other factors or circumstances that the court
deems equitable, relevant and material.
[N.J.S.A. 2A:34-23(c).]
In this case, the evidence clearly demonstrates that throughout the
marriage defendant relied on plaintiff for financial support. N.J.S.A. 2A:34-
23(c)(2). The degree to which she was financially dependent, however, is
mitigated by the short life of the marriage. No evidence was presented to
suggest that defendant will be unable to reenter the work force. A three-and-a-
half-year period of economic dependency does not present exceptional
circumstances warranting alimony for a duration which exceeds the life of the
marriage.
Similarly, acknowledging defendant's support of plaintiff's career,
N.J.S.A. 2A:34-23(c)(4), and her responsibility as the primary caretaker,
N.J.S.A. 2A:34-23(c)(6), neither justifies an extension of the duration of
alimony payments. Her contribution to plaintiff's career was considered by the
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trial judge and was the basis of his decision to award defendant a percentage of
the value that plaintiff's law firm realized during the marriage. Notwithstanding
defendant's role as the primary caretaker, she stopped working on a regular basis
before the parties were married. Based on defendant's testimony, we cannot
reasonably conclude that the marriage had any significant impact on her ability
to become self-supporting. The duration of alimony in this case is supported by
substantial credible evidence and therefore does not represent an abuse of the
trial judge's discretion. Reid, 310 N.J. Super. at 22.
V.
The final judgment of divorce required the parties "to calculate the current
support arrears pursuant to the terms of the March 21, 2016 Consent Order (as
of September 30, 2018), and that amount (estimated by the [c]ourt at this time
to be approximately $100,000), shall be paid to the [d]efendant in $10,000
monthly installments." Based on the parties' submissions, the judge determined
plaintiff had failed to pay twenty-seven percent or $94,174 of defendant's
schedule C expenses, and an additional $1,393.78 of her schedule A and B
expenses. On reconsideration, defendant requested that the arrears be fixed at
$137,919.72. The judge denied the request, without prejudice, and ordered the
parties to engage in mediation for a period of at least four hours if they were
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unable to agree on the gross amount owed. If mediation was unsuccessful, the
parties were permitted to file a post-judgment application regarding the disputed
amount or agree on an accountant to review the payments and issue a report on
the total due.
On appeal, defendant argues the judge's calculation is not supported by
credible evidence. Only final judgments, however, are appealable as of right to
the appellate division. R. 2:2-3(a)(1). "Generally, an order is considered final
[only] if it disposes of all the issues as to all the parties." Silviera-Francisco v.
Bd. Of Educ. of Elizabeth, 224 N.J. 126, 136 (2016). Orders that decide only
some intervening matter, and require further steps to enable a trial court to
decide the issue on the merits are, by definition, interlocutory, and therefore may
not be appealed as of right. Moon v. Warren Haven Nursing Home, 182 N.J.
507, 512 (2005) (quoting Black's Law Dictionary 815 (6th ed. 1990)). The
portion of the March 19, 2020 order pertaining to arrears is interlocutory because
it required further action by the parties meant to enable the trial judge to decide
the issue on the merits. Only after defendant has complied with the order and
obtained a final judgment regarding the outstanding arrears may she appeal that
decision without leave of the court. Consequently, we decline to review the trial
judge's arrears determination.
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VI.
Next, defendant challenges the way the trial judge equitably distributed
the Morristown property, the marital income used to pay plaintiff's tax debt, and
plaintiff's interest in his law firm.
A. The Morristown Property
In distributing the marital assets, the judge determined that the
Morristown property was not purchased in anticipation of marriage and
therefore was not subject to equitable distribution. Because defendant was not
awarded an interest in the home, the final judgment of divorce required plaintiff
to repay the $60,000 defendant and her parents contributed to the down payment,
and an additional amount equal to twenty percent of the value the property has
realized from the date of purchase to the date the complaint for divorce was
filed. Defendant argues the judge abused his discretion by failing to award her
one-half of the property's value because the home was purchased in anticipation
of marriage.
Plaintiff acquired the Morristown property approximately sixteen months
before the parties were engaged, and more than twenty-eight months before they
were married. Based the testimony of both parties, the trial judge reasonably
found that the home was not purchased in anticipation of marriage. That
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conclusion is bolstered by the evidence showing plaintiff was still married to his
second wife when he bought the house, and title to the property was placed in
his name only. Defendant's explanation as to why she was not listed on the deed
defies logic. On the one hand, she testified that she agreed not to be named on
the title because her credit rating may have prevented the parties from obtaining
a mortgage, but on the other, she testified that she understood she had good
credit when the home was purchased. Moreover, as noted by the trial judge,
defendant's credit rating may have been a valid consideration in applying for a
mortgage, but would not prevent her from being named on the deed. If it was
truly the parties' intent to share the property equally, plaintiff could have
obtained a mortgage as the sole borrower, while still listing defendant on the
title. Defendant's father's testimony further served to cut against defendant's
credibility regarding the Morristown property. Defendant claimed that plaintiff
promised her father he would grant her an interest in the home after it was
purchased. Her father, however, that he never spoke to plaintiff about how the
property would be titled. As the evidence clearly suggests the house was not
purchased in anticipation of marriage, we discern no abuse of discretion in the
judge's allocation of the Morristown property.
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B. Tax Debt
Defendant next argues the trial court erred by failing to order that she be
reimbursed for the marital funds used to pay plaintiff's tax debt. Plaintiff used
marital income to extinguish debt that pre-dated the parties' marriage, therefore,
defendant contends plaintiff should be ordered to pay her for every dollar of
marital income that went toward his pre-marital tax obligations. The trial judge
found that although she may not have known the full amount, defendant entered
the marriage entirely aware of the issues related to plaintiff's back taxes and that
she willingly agreed to use marital income to pay down those debts. We agree.
When allocating marital assets, courts must consider, among other things,
"[t]he contribution of each party to the acquisition, dissipation, preservation,
depreciation or appreciation in the amount or value of the marital property. . . ."
N.J.S.A. 2A:34-23.1(i). Although the Legislature has not defined "dissipation"
of marital property, we have described the concept as a "plastic one, suited to fit
the demands of the individual case." Kothari v. Kothari, 255 N.J. Super. 500,
506 (App. Div. 1992). "Dissipation may be found where a spouse uses marital
property for his or her own benefit and for a purpose unrelated to the marriage
at a time when the marriage relationship was in serious jeopardy." Ibid. (quoting
Head v. Head, 523 N.E. 2d 17, 20-21 (Ill. App. Ct. 1988)).
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To determine whether a spouse has dissipated assets, courts consider
various factors, including:
(1) the proximity of the expenditure to the parties'
separation, (2) whether the expenditure was typical of
expenditures made by the parties prior to the
breakdown of the marriage, (3) whether the expenditure
benefitted the "joint" marital enterprise or was for the
benefit of one spouse to the exclusion of the other, and
(4) the need for, and amount of, the expenditure.
[Id. at 507 (quoting Lee R. Russ, Annotation, Spouse's
Dissipation Of Marital Assets Prior To The Divorce As
A Factor In Divorce Court's Determination Of Property
Division, 41 A.L.R. 4th 416 (1985)).]
The party alleging dissipation bears the burden of proof on the issue. Monte v.
Monte, 212 N.J. Super. 557, 567-68 (App. Div. 1986).
Here, defendant testified that the parties had shared a joint account since
2010, she acted as plaintiff's personal accountant before and during the
marriage, and that she was aware plaintiff filed tax extensions each year. Her
testimony established that she had a detailed understanding of plaintiff's
finances before she entered the marriage. While she may not have known t he
precise amount plaintiff owed in unpaid taxes, her contention that she was
entirely ignorant to his tax liabilities until after the parties were married is belied
by her own testimony. As noted by the trial judge, paying the tax debt enabled
the parties to keep the house and allowed defendant to enjoy a comfortable
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lifestyle that plaintiff would likely not have been able to provide had the IRS
seized the Morristown property. That conclusion is supported by defendant's
father's testimony, in that he explained the reason he provided the loan was to
enable plaintiff to keep the home where his daughter resided. Defendant also
indicated that she obtained several lines of credit during the marriage to service
the debt, thus illustrating her willingness to not only use marital funds to make
payments, but also to assume a portion of the debt as her own as a function of
the marital enterprise. Defendant has not presented anything in the record that
persuades us she did not consent to the use of marital income to pay plaintiff's
tax debts or that the payments were not mutually beneficial. Consequently, we
see no reason to disturb the trial judge's decision.
C. The Law Firm
The final judgment of divorce granted defendant "an amount equal to
[twenty percent] of the increase in value of [plaintiff's] interest in his law firm
from the date of marriage through the date of [the] [c]omplaint." Defendant
argues the trial judge erred in failing to award half of the marital increase in
value of plaintiff's interest in his law firm. She suggests that her contribution to
plaintiff's professional success entitles her to a greater share of his interest.
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"Any property owned by a husband or wife at the time of marriage will
remain the separate property of such spouse and in the event of divorce will be
considered an immune asset and not eligible for distribution." Valentino v.
Valentino, 309 N.J. Super. 334, 338 (App. Div. 1998) (citing Painter v. Painter,
65 N.J. 196, 214 (1974)). Under some circumstances, however, the appreciation
of preowned assets during the marriage will be subject to distribution depending
on whether it is passive or active. Ibid. A passive asset fluctuates in value based
exclusively on market conditions, while an active asset "involves contributions
and efforts by one or both spouses toward the asset's growth and development
which directly increase its value." Ibid. (citing Scavone v. Scavone, 230 N.J.
Super. 482, 486-87 (Ch. Div. 1988)). When the increase derives from the efforts
of the non-owner, the appreciation is subject to distribution. Ibid.Plaintiff started his firm with another person in 2007, and added a third
equity partner in 2008. The business is therefore a premarital asset exempt from
equitable distribution. See id. at 338 (citing Painter, 65 N.J. at 214). Despite
the firm's exempt status, defendant has an interest in the portion of the value of
the firm that is attributable to the efforts of either spouse during the marriage.
Ibid. Hoberman's report concluded that plaintiff's interest increased by
$167,000 from the date of marriage to the date the complaint for divorce was
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filed. Based on the length of the marriage and the revenues generated by each
partner, the trial judge awarded defendant twenty percent of the increased value.
There is ample evidence to support the trial judge's findings with respect
to the parties roles' in the success of the law firm. As noted by Hoberman,
plaintiff's partner generated more than three times the revenue that plaintiff did
during the marriage. Consequently, only a small portion of the appreciated value
is reasonably attributable to the parties' marital efforts. While crediting
defendant for her role in plaintiff's professional success, the evidence adduced
at trial sufficiently supports the judge's distribution of the firm's appreciated
value.
We conclude the trial judge did not abuse his discretion in any respect
with regard to the April 14, 2018 judgment of divorce or the March 19, 2019
order denying defendant's request for reconsideration.
To the extent not addressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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