DARYL B. WAINER VS. MIGUEL A. WAINER(FM-02-1405-14, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4321-14T2
DARYL B. WAINER,
Plaintiff-Respondent,
v.
MIGUEL A. WAINER,
Defendant-Appellant.
___________________________________
Argued December 20, 2016 – Decided July 13, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FM-02-1405-14.
Michael Confusione argued the cause for
appellant (Hegge & Confusione, LLC, attorneys;
Michael Confusione, of counsel and on the
brief).
Daryl B. Wainer, respondent, argued the cause
pro se.
PER CURIAM
In this appeal from a final judgment of divorce, defendant
Miguel A. Wainer challenges the court's equitable distribution of
marital assets, the amount of alimony awarded to him, the
allocation of college expenses, the failure to require life
insurance as security for alimony, and the denial of counsel fees.
We affirm in part, substantially for the reasons set forth in the
trial court's thirty-nine page decision; but are constrained to
remand in part for a more complete statement of reasons for the
court's order regarding college expenses and for an explicit
determination regarding life insurance.
I.
After twenty-five years of marriage, plaintiff Daryl B.
Wainer filed for divorce in December 2013. The parties' only
child was then a student at a private university. Plaintiff was
fifty-six years old and still active in the workplace. Defendant
was seventy-nine years old and retired. Plaintiff earned a
stipulated annual income of $92,419 and defendant received almost
$13,000 a year in Social Security benefits. After a four-day
trial conducted in late 2014 and early 2015, at which the parties
were the sole witnesses, the trial court awarded defendant open
durational alimony of $27,500 a year.
As for equitable distribution, the court allocated to each
party equal shares of: the parties' personal property; a Fidelity
investment account, which the court valued at $78,249; plaintiff's
pension, valued at $122,965 and to be distributed pursuant to a
qualified domestic relations order; and the plaintiff's marital
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credit card debt of $25,000. Regarding an apartment in Buenos
Aires that the parties beneficially owned, the court directed the
parties to sell the property within two years, with defendant
receiving sixty-five percent of the net proceeds and plaintiff
thirty-five percent. Neither party presented an appraisal of the
apartment's value, although defendant opined that it was worth
$350,000, but would be more marketable within two years after
trial, with an anticipated change in economic policy in Argentina.
The judge directed the parties to share equally in the payment
of the roughly $34,000 in college loans for the parties' child,
which were in plaintiff's name. The court also required defendant
to pay forty percent of their child's senior year college costs
and other child-related expenses. The court ordered plaintiff to
retain defendant's share of the Fidelity account, $39,124.50, in
satisfaction of these obligations and his share of the marital
credit card debt.
Finally, the court ordered that both parties remain
responsible for their own attorney's fees and costs. The court
did not address whether plaintiff was required to maintain life
insurance to secure the payment of alimony to defendant.
In his appeal, defendant raises the following points:
3 A-4321-14T2
POINT I
THE FINAL JUDGMENT OF DIVORCE RESTS ON
INSUFFICIENT CREDIBLE EVIDENCE IN THE TRIAL
RECORD AND INFRINGES CONTROLLING NEW JERSEY
LAW.
A. THE ALIMONY AND SUPPORT RULINGS.
B. THE EQUITABLE DISTRIBUTION RULING.
POINT II
THE FAMILY COURT ABUSED ITS DISCRETION IN
ORDERING DEFENDANT TO PAY HIS OWN COUNSEL
FEES.
II.
We defer to the trial judge's fact findings that are rooted
in her familiarity with the case, her opportunity to make
credibility judgments based on live testimony, and her expertise
in family matters. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).
A trial court has broad discretion to determine alimony and
allocate marital assets subject to equitable distribution. Clark
v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012).
However, the trial court is also obliged to make necessary
findings of fact and state reasons for its conclusions, to enable
meaningful appellate review. Strahan v. Strahan, 402 N.J. Super.
298, 310 (App. Div. 2008); R. 1:7-4. We will vacate a trial
court's award if "the court clearly abused its discretion, failed
to consider all of the controlling legal principles, made mistaken
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findings, or reached a conclusion that could not reasonably have
been reached on sufficient credible evidence present in the record
after considering the proofs as a whole." J.E.V. v. K.V., 426
N.J. Super. 475, 485 (App. Div. 2012). We also are not bound by
the trial court's legal conclusions. N.J. Div. of Youth & Family
Servs. v. I.S., 202 N.J. 145, 183 (2010).
A.
Inasmuch as equitable distribution is a factor in determining
alimony, see N.J.S.A. 2A:34-23(b)(10), but alimony is not a factor
in determining equitable distribution, see N.J.S.A. 2A:34-23.1,
we begin by assessing the trial court's equitable distribution
rulings.
Defendant argues the trial judge committed several errors in
equitably distributing the parties' marital assets. Specifically,
defendant contends the trial court erred in distributing the
parties' Buenos Aires apartment and marital debt; and failed to
credit him for alleged exempt contributions to the Fidelity
account. We are unpersuaded.
"The goal of equitable distribution . . . is to effect a fair
and just division of marital assets." Steneken v. Steneken, 367
N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in
part, 183 N.J. 290 (2005). In equitably distributing marital
property, the trial court must engage in a three-prong analysis.
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Rothman v. Rothman, 65 N.J. 219, 232 (1974). First, the trial
court must determine what assets are subject to equitable
distribution. Ibid. Second, the trial court must determine the
value of these distributable assets. Ibid. Finally, the trial
court must consider "how such allocation can most equitably be
made." Ibid. Additionally, the trial court must consider the
statutory factors set forth in N.J.S.A. 2A:34-23.1. Sauro v.
Sauro, 425 N.J. Super. 555, 576 (App. Div. 2012), certif. denied,
213 N.J. 389 (2013). The manner of distribution remains within
the trial court's broad discretion. See Steneken, supra, 367 N.J.
Super. at 435.
"Generally speaking, in dividing marital assets the court
must take into account the liabilities as well as the assets of
the parties." Monte v. Monte, 212 N.J. Super. 557, 567 (App. Div.
1986). A trial court in a divorce matter has the authority to
allocate marital assets and debt between a husband and wife. See
Ionno v. Ionno, 148 N.J. Super. 259, 262 (App. Div. 1977) ("Proper
allocation of the responsibility for the debts as between husband
and wife does not necessarily track legal responsibility therefor
to a third party."). Additionally, marital debts may be deducted
from the total value of the marital estate. See Pascarella v.
Pascarella, 165 N.J. Super. 558, 563 (App. Div. 1979).
6 A-4321-14T2
We discern no merit in defendant's challenge to the court's
disposition of the parties' Buenos Aires apartment, where they
resided until 2005, before returning to the United States.
Defendant contends the trial court failed to consider the
property's value or the carrying costs associated with the sale
of the apartment. He also alleged there were impediments to the
sale of the apartment, including an ongoing dispute with
plaintiff's son from a different relationship, who allegedly
occupied the apartment for a time.
The trial court awarded defendant sixty-five percent of the
net proceeds of the sale of the apartment, as well as allocated
to him the responsibility to pay sixty-five percent of the carrying
costs until the sale. The court awarded defendant a larger
proportion of the net proceeds "in consideration of the limitation
of Plaintiff's alimony obligation . . . ."
Defendant shall not be heard to complain that the court lacked
sufficient evidence of the apartment's value, or its costs, to
reasonably and equitably distribute the asset. It was the parties'
obligation, not the court's, to present an appraised value of the
property. See Lavene v. Lavene, 148 N.J. Super. 267, 276 (App.
Div.) ("The parties, of course, have the primary obligation of
adducing those proofs which will enable the judge to make sound
and rational valuations."), certif. denied, 75 N.J. 28 (1977). In
7 A-4321-14T2
the absence of an appraisal or other competent evidence of value,
the court did the best it could.
We also shall not disturb the court's decision on the basis
of defendant's contention that plaintiff's son may interfere with
the sale. Although both parties testified about various judgments
or claims against defendant in Argentina, none were documented by
competent evidence that demonstrated a lien on the apartment or
any other impediment to the sale. In any event, the testimony at
trial was that the apartment was titled in the name of plaintiff's
brother, with the parties' consent. The brother agreed that the
property was beneficially owned by the parties and agreed to
cooperate in its sale. We find there was sufficient credible
evidence for the court's decision.
We also reject defendant's claim that he was entitled to a
credit for contributions to the Fidelity account that he claimed
were exempt from distribution. The parties used the Fidelity
account for various marital expenses. Defendant testified that
he contributed almost $43,000 to the Fidelity account, which he
said came from the sale of a painting, gifted to him by his
brother, and an inheritance. However, the trial court found both
parties commingled exempt funds into this account. Indeed, the
Fidelity account was initially funded with $200,000 from an
otherwise exempt gift to plaintiff from her family. Moreover, the
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evidence did not disclose any effort by defendant to segregate his
exempt funds or to preserve their separate character.
Defendant bore the burden to prove the basis for exempting
his property from the marital estate. Pascale v. Pascale, 140
N.J. 583, 609 (1995). A gift is subject to distribution if it
subsidizes the marital lifestyle or is placed into an account with
regular deposits of other non-exempt funds, unless the party
demonstrates an unequivocal intent to separate the exempt asset.
See ibid.; Tannen v. Tannen, 416 N.J. Super. 248, 283 (App. Div.
2010), aff'd o.b., 208 N.J. 409 (2011); Wadlow v. Wadlow, 200 N.J.
Super. 372, 380 (App. Div. 1985). We shall not disturb the court's
treatment of the Fidelity account as a marital asset.
Defendant also challenges the allocation of plaintiff's
credit card debt of $25,000, which she testified was incurred to
cover marital expenses. He contends the debt was incurred against
his advice, and the court disregarded his own significant debt.
The judge stated:
There is no justification to relieve
Defendant from liability for fifty percent
(50%) of the parties' marital debt. The
parties have historically used credit cards
to fund any shortfall in their monthly living
expenditures. It was Defendant who maintained
the parties' finances until a few short months
before the commencement of trial. Therefore,
it is disingenuous for Defendant to claim he
was unaware of the parties' financial
circumstances.
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Simply put, there was sufficient credible evidence, consisting of
plaintiff's testimony, that the credit card debt was attributable
to reasonable marital expenses. Defendant presented no competent
documentary evidence to establish the amounts were unreasonable,
or unrelated to marital expenses.
As for his claim that the judge disregarded his own
significant debt, we recognize that he reported, in his December
2014 case information statement, $7000 in his own credit card
debt, as well as an additional $13,000 owed to a bank. However,
the record before us does not illuminate when, and for what, that
debt was incurred. Notably, defendant introduced into evidence
an extensive summary of his debt, with multiple attachments.
Plaintiff, as well, introduced documentary evidence of defendant's
credit cards, because she made payments on the accounts. However,
since defendant omitted those exhibits from the appendix on appeal,
we find no reason to disturb the court's ruling on this issue.
See Cmty. Hosp. Grp., Inc. v. Blume Goldfaden, 381 N.J. Super.
119, 127 (App. Div. 2005) (We are not "obliged to attempt [to]
review . . . an issue when the relevant portions of the record are
not included."); R. 2:6-1(a) (stating appellant must include in
the appendix "such other parts of the record . . . as are essential
to the proper consideration of the issues").
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B.
Defendant next contends the trial court's alimony award was
insufficient, given his age and earning capacity. Specifically,
defendant argues the trial court "did not meaningfully weigh and
balance the [statutory] factors." We disagree.
The purpose of alimony is to "provide a dependent spouse with
the wherewithal to 'maintain a lifestyle that is reasonably
comparable to the standard of living enjoyed during the marriage.'"
Steneken, supra, 367 N.J. Super. at 434 (quoting Crews v. Crews,
164 N.J. 11, 17 (2000)). In making this determination, the court
should also consider the payor's earnings and ability to support
the payee. See Crews, supra, 164 N.J. at 27; Hughes v. Hughes,
311 N.J. Super. 15, 35 (App. Div. 1998) (noting that consideration
of the supporting spouse's current earnings is relevant in
determining whether he or she can support the dependent spouse to
the level enjoyed during marriage, or, in some circumstances, a
reduced level). "The court should state whether the support
authorized will enable each party to live a lifestyle 'reasonably
comparable' to the marital standard of living." Crews, supra, 164
N.J. at 26.
Additionally, the trial court must make specific findings,
considering the fourteen factors outlined under N.J.S.A. 2A:34-
23(b). These factors include:
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(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 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;
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(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.
[N.J.S.A. 2A:34-23(b).]
For most of their marriage, the parties lived a modest,
middle-class life. From 1990 to 2005, the parties resided in
Argentina, living in aparthotels and rental properties, before
purchasing the apartment in Buenos Aires in 2000. While in
Argentina, defendant invested in a bicycle business, which
dissolved less than a year later. The parties soon thereafter
opened a private language school, with plaintiff responsible for
teaching and developing the curriculum, and defendant handling the
marketing and finances. However, the parties later returned to
New Jersey in 2005, during the financial crisis in Argentina.
After returning to New Jersey, plaintiff served as the primary
breadwinner for the family. At the time of trial, she was employed
by a public school district, earning a stipulated gross annual
income of $92,419. In addition to working full-time, she was
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pursuing a doctoral degree in education (Ed.D.). To support her
own educational endeavors, she had borrowed $61,000 in
unsubsidized student loans.
Defendant, on the other hand, has not experienced the same
success since returning to the United States. For a time, he
earned modest commissions as a life insurance agent, but that
source of income dried up. At the time of trial, he was almost
eighty years old, retired, and collecting approximately $13,000
in annual Social Security benefits.1
In determining plaintiff's alimony obligation, the trial
court examined each of the statutory factors outlined in N.J.S.A.
2A:34-23(b). Although defendant challenges the court's findings
as to several of these factors, we are satisfied, based on our
thorough review of the record, that the court's findings were
supported by "adequate, substantial, credible evidence." Cesare,
supra, 154 N.J. at 412.
After considering each factor, the court set plaintiff's open
durational alimony obligation at a fixed amount of $27,500 per
year. Notably, in determining plaintiff's alimony obligation, the
1
Defendant's newly minted claim, in his appellate brief, that his
benefits are actually $11,616 lacks any support in the record and
is at odds with defendant's own CIS and trial testimony.
14 A-4321-14T2
trial court considered both party's individual budgets and
combined net incomes:
Plaintiff earns gross wages of $92,419.00
and Defendant social security wages of
$13,000.00. These sum nets cannot cover
either of the parties' budgets, let alone both
of their budgets. The point being, that even
while together, their funds were insufficient
to meet their living expenses; hence the
$25,000 in credit card debt used to supplement
living expenses.
. . . .
The Court clearly recognizes that
Plaintiff, upon conference of her doctoral
degree, has the potential to increase her
earnings and can only surmise that it is the
eventuality of the situation. However, that
situation does not exist today and the Court
cannot determine an alimony award based upon
predictions of future earnings, which may
never materialize. Plaintiff's current income
must be used and that income is $92,419.00.
The Court further recognizes that
Defendant is at a distinct age disadvantage
and is entitled to retire at age eighty (80),
albeit a healthy 80. Therefore, the
likelihood of any appreciable increase over
and above his social security earning is
negligible.
. . . .
The fact is that neither party will be
able to maintain the formal marital lifestyle.
Using Plaintiff's current budget of $8,274.00
and Defendant's current budget of $5,294.00,
the Court finds that Plaintiff shall pay to
Defendant open durational alimony of
$27,500.00 per year.
15 A-4321-14T2
Defendant misplaces reliance on Guglielmo v. Guglielmo, 253
N.J. Super. 531, 543-44 (App. Div. 1992), in support of his
contention that the trial court failed to consider plaintiff's
earning potential in awarding alimony. In Guglielmo, we explained:
Where a family's expenditures and income had
been consistently expanding, the dependent
spouse should not be confined to the precise
lifestyle enjoyed during the parties' last
year together. Defendant's income picture
should be viewed with an eye toward the
future, since it was to this potential that
both parties contributed during the marriage.
[Ibid.]
Here, the record fails to demonstrate that plaintiff's income
has been consistently expanding. Plaintiff testified to nothing
more than her hope that acquiring a doctorate would boost her
income. There was no evidence suggesting that she would
automatically qualify for a promotion or raise. As such, we
discern no error in the court's decision to utilize plaintiff's
current income in determining her alimony obligation.
Additionally, should plaintiff experience a significant increase
in pay after receiving her Ed.D., defendant can seek a modification
of alimony based on changed circumstances. See Lepis v. Lepis,
83 N.J. 139, 146 (1980) (stating that alimony obligations are
"always subject to review and modification on a showing of 'changed
circumstances.'"); see also Quinn v. Quinn, 225 N.J. 34, 49 (2016)
16 A-4321-14T2
(stating "changed circumstances include . . . an increase or
decrease in the income of the supporting . . . spouse") (internal
quotation marks and citation omitted)).
Defendant's remaining challenges to the alimony award lack
sufficient merit to warrant an extended discussion. R. 2:11-
3(e)(1)(E). We add that defendant's reliance on marital fault is
misdirected, as marital fault is generally irrelevant and the
record is bereft of any evidence establishing exceptional fault
of the kind sufficient to impact alimony. See Mani v. Mani, 183
N.J. 70, 91-92 (2005); Clark, supra, 429 N.J. Super. at 74.
Defendant also objects to the provision in the judgment that
alimony would be subject to suspension or termination if he
cohabits with an unrelated female; however, the provision simply
complies with N.J.S.A. 2A:34-23(n).
C.
Defendant next contends the trial court erred in obligating
him to pay fifty percent of the debt already incurred by plaintiff
to finance their child's college education, and forty percent of
future educational costs. Defendant contended he lacked the
ability to pay. He also argued that he opposed plaintiff's and
his child's choice of an out-of-state private university; instead,
he favored his child's attendance at City University of New York,
17 A-4321-14T2
where the child could have lived at home and, he argued, reduced
total educational costs.
Although attending an out-of-state private university, the
child received substantial scholarships that covered all but
$22,000 of freshman year expenses, and $12,000 of sophomore year
expenses. Plaintiff borrowed $34,000 to cover the remaining costs.
She anticipated utilizing a college savings fund for junior year
shortfalls and borrowing again to finance senior year expenses.
Payments on the loans were deferred.
Plaintiff also testified that the parties' child had a work-
study job, which generated income used to cover incidental
expenses. She also stated that the child remained out-of-state
the previous summer, having secured a paid summer internship.
However, she did not provide detailed evidence of the costs of
supporting the child, outside the college expenses.
In allocating half of the $34,000 debt, the court stated:
The Court further finds that the
Defendant shall share equally in the payment
of [the child's] school loans incurred to
date. [The child], through scholarships, has
been able to reduce the actual out of pocket
costs for [the] education to a level
commensurate with or actually less than the
cost of a state university. That fact,
coupled with the importance placed upon
continuing education by the parties, both of
whom hold Masters Degrees and one of whom
. . . continues to pursue a doctoral degree
at age fifty-seven (57) makes clear that if
18 A-4321-14T2
they had remained an intact family, they would
have done everything possible to fund these
costs on [the child's] behalf.
In allocating forty percent of senior year costs, the court stated
Certain college accounts have been set
aside for [the child]. The accounts have an
approximate value of $15,000.00. This amount
is anticipated to be sufficient to cover out-
of-pocket expenses for [the child's] junior
year . . . . [S]enior year expenses, based
upon historical out-of-pocket expenses, are
expected to be approximately $22,000.00,
provided [the child] receives scholarships at
a similar level to those received in . . .
freshman and sophomore years. The parties
shall share in [the child's] remaining college
expenses, with Plaintiff funding sixty percent
(60%) and the Defendant forty percent
(40%). . . . Plaintiff shall retain the
$10,754.50 remaining in the Fidelity
Investments account in full satisfaction of
Defendant's forty percent (40%) contribution
to [the child's] senior year expenses.
Trial courts have substantial discretion in determining
parents' contribution to college expenses. See Jacoby v. Jacoby,
427 N.J. Super. 109, 116 (App. Div. 2012); see also Foust v.
Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001). However, a
trial court's decision will be reversed "if the court ignores
applicable standards[.]" Gotlib v. Gotlib, 399 N.J. Super. 295,
309 (App. Div. 2008).
In Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), the Court set
forth a list of twelve factors for courts to consider when
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determining a parent's contribution for a child's educational
expenses:
(1) whether the parent, if still living with
the child, would have contributed toward the
costs of the requested higher education; (2)
the effect of the background, values and goals
of the parent on the reasonableness of the
expectation of the child for higher education;
(3) the amount of the contribution sought by
the child for the cost of higher education;
(4) the ability of the parent to pay that cost;
(5) the relationship of the requested
contribution to the kind of school or course
of study sought by the child; (6) the
financial resources of both parents; (7) the
commitment to and aptitude of the child for
the requested education; (8) the financial
resources of the child, including assets owned
individually or held in custodianship or
trust; (9) the ability of the child to earn
income during the school year or on vacation;
(10) the availability of financial aid in the
form of college grants and loans; (11) the
child's relationship to the paying parent,
including mutual affection and shared goals
as well as responsiveness to parental advice
and guidance; and (12) the relationship of the
education requested to any prior training and
to the overall long-range goals of the child.
[Ibid.]
The Legislature thereafter codified factors to consider when
evaluating a claim for contribution, including college expenses.
See Gotlib, supra, 399 N.J. Super. at 309 (citing N.J.S.A. 2A:34-
23(a)). Consequently, in determining a parent's college
contribution obligation, "a trial court should balance the
statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh
20 A-4321-14T2
factors, as well as any other relevant circumstances, to reach a
fair and just decision . . . ." Gac v. Gac, 186 N.J. 535, 543
(2006).
Here, the trial court failed to address either the Newburgh
or the statutory factors under N.J.S.A. 2A:34-23(a). In
particular, the court treated the incurred college debt as a
liability subject to equitable distribution, like any other
marital debt. This was mistaken, as the college expenses — whether
prospective or incurred — should have been analyzed within the
Newburgh-Gac framework.
Therefore, we are constrained to remand this portion of the
judgment, for the trial court to make further findings consistent
with Newburgh, Gac, and N.J.S.A. 2A:34-23(a). See Raynor v.
Raynor, 319 N.J. Super. 591, 617 (App. Div. 1999) (reversing a
trial court's college contribution obligation, where the trial
court failed to consider the factors listed in Newburgh or the
parties' financial circumstances.). We express no opinion as to
whether this analysis should yield a different result. However,
we note that the court did not explicitly consider the child's
earning ability, and capacity to bear responsibility for some of
the borrowing. Notably, he is pursuing a degree in a field that
has a positive job outlook.
21 A-4321-14T2
D.
Defendant also argues the trial court erred in failing to
direct plaintiff to maintain life insurance for his benefit, as
security for the payment of alimony. N.J.S.A. 2A:34-25 expressly
provides trial courts with the authority to order "either spouse
or partner to maintain life insurance for the protection of the
former spouse, partner, or the children of the marriage or civil
union in the event of the payer spouse's or partner's death." See
Jacobitti v. Jacobitti, 135 N.J. 571, 580 (1994); Claffey v.
Claffey, 360 N.J. Super. 240, 262-63 (App. Div. 2003). Here,
defendant requested the court to direct plaintiff to name him as
a beneficiary to plaintiff's three life insurance policies.2
The trial court did not expressly address the issue of
plaintiff securing her payment of alimony with life insurance.
Rather, the judgment of divorce only addressed whether to require
defendant to obtain insurance on his life, which the court
ultimately rejected because of his age. As the trial court failed
to consider plaintiff's maintenance of life insurance for
defendant's benefit, we are constrained to remand this issue for
2
At trial, defendant testified that plaintiff's policies include
a workplace life insurance policy worth "three times her yearly
salary," a AAA life insurance policy worth "100,000 or 200,000,"
and an AXA life insurance policy worth "about 200,000." He
proposed that he be named a fifty-percent beneficiary on all these
policies.
22 A-4321-14T2
further consideration. We leave it to the court's discretion to
determine whether to direct plaintiff to maintain life insurance,
and if so, the amount to be secured.
E.
Lastly, we address defendant's argument that the trial judge
abused her discretion in ordering him to pay his own counsel fees.
He claims plaintiff is in a superior financial position and he has
limited resources to afford these fees. We find this argument
without merit. Trial courts have the authority to award counsel
fees in a family law action under N.J.S.A. 2A:34-23 and Rule 5:3-
5(c). "[T]he award of counsel fees in a matrimonial action is
discretionary with the trial court and an exercise thereof will
not be disturbed in an absence of a showing of abuse." Chestone
v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).
In her written decision, the judge examined the nine factors
set forth in Rule 5:3-5(c) and made specific findings as to each.
Notably, in considering "the ability of the parties to pay their
own fees or to contribute to the fees of the other party," Rule
5:3-5(c)(2), the trial court held:
In the instant matter, it appears that neither
of the parties have significant liquid capital
assets from which to satisfy their own counsel
fees. The sum remaining in the Fidelity
investments Account has been allocated to the
payment of debt, but remains a resource for
Plaintiff. Otherwise, Plaintiff would be
23 A-4321-14T2
required to again borrow against her pension,
having already taken a debt consolidation
loan.
Defendant has no liquidity.
Given our deferential standard of review and the trial court's
thorough consideration of the necessary factors outlined under
Rule 5:3-5(c), we find no reason to interfere with the trial
court's decision and affirm its denial of attorney's fees.
F.
In conclusion, we affirm the court's judgment as it pertains
to alimony, equitable distribution, and counsel fees; and remand
for further consideration the issues of college expenses and life
insurance.
Affirmed in part and remanded in part. We do not retain
jurisdiction.
24 A-4321-14T2