WILLIAM J. ENGELHARDT, JR., VS. DIANA ENGELHARDT (FM-15-0658-04, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-1441-20
WILLIAM J. ENGELHARDT, JR.,
Plaintiff-Appellant,
v.
DIANA ENGELHARDT,
Defendant-Respondent.
_____________________________
Submitted September 13, 2021 – Decided September 17, 2021
Before Judges Sumners and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-0658-04.
William J. Engelhardt, Jr., appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Plaintiff William J. Engelhardt, Jr., appeals from a December 18, 2020
Family Part order denying his motion for reconsideration of an October 27, 2020
Family Part order modifying his alimony obligation to his former spouse,
defendant Diana Engelhardt. 1 Based on our review of the record, we reverse the
court's order denying plaintiff's motion for reconsideration, vacate in part the
court's order modifying plaintiff's alimony obligation, and remand for further
proceedings.
I.
Plaintiff moved for termination or modification of his alimony obli gation
based on a reduction of his income following his retirement. The Family Part
granted the motion in part, entering an order reducing plaintiff's alimony
obligation from the $550 weekly amount set forth in the parties' 2005 judgment
of divorce to $250 per week.2 Plaintiff appealed from the order, arguing the
court erred by considering his retirement account, and the income earned from
the account, in its calculation of the modified alimony obligation because he
received the account as part of the equitable distribution of property in the
divorce. Engelhardt v. Engelhardt, No. A-1183-18 (App. Div. Feb. 24, 2020)
(slip op. at 10).
1
Defendant did not participate in this appeal.
2
Plaintiff's motion sought other relief not relevant to this appeal.
A-1441-20
2
We found the court erred by modifying plaintiff's alimony obligation
without precisely determining the amount of plaintiff's income from the
retirement account and the increase in the account's value of the account that are
attributable to the post-divorce account contributions. 3 Id. at 12-13. We
remanded for the court "to particularize those values, how the court derived
same[,] and how they factored into the final alimony award." Id. at 13. We did
not "express an opinion regarding the ultimate [alimony] award, leaving that
determination to the court's good discretion." Ibid.
On remand, the parties relied solely on the original motion record. In an
October 27, 2020 written decision and order, the court found plaintiff's
retirement account had a value of approximately $160,000 when he filed for
divorce, and defendant received one-half the value of the account,
approximately $80,000, in equitable distribution. The court also found plaintiff
left those monies in the retirement account following the divorce, and that
3
Plaintiff also argued on appeal that the court erred by failing to consider or
address the statutory factors under N.J.S.A. 2A:34-23(j)(3) pertinent to the
determination of a motion for termination or modification of alimony based on
a supporting spouse's retirement. We rejected plaintiff's argument, finding the
Family Part "analyzed each factor of the statute, and detailed its findings of fact,
recounting the parties' testimony, in determining the alimony award." Id. at 5
(footnote omitted).
A-1441-20
3
periodic, additional contributions were made to the account until plaintiff
retired.
The remand court considered the post-divorce contributions made to the
account, as well as the dividends earned and annualized rates of return on the
monies in the account. The court determined $158,864 of the account's balance
is attributable to plaintiff's equitable distribution share and the income earned
on that share following the divorce, and therefore that sum could not be properly
considered in the calculation of plaintiff's alimony obligation. See Innes v.
Innes, 117 N.J. 496, 505 (1990) ("When a share of a retirement benefit is treated
as an asset for purposes of equitable distribution, the court shall not consider
income generated thereafter by that share for purposes of determining
alimony."); see also N.J.S.A. 2A:34-23(b) and (j)(3).
The court found the account's remaining $62,280 balance is attributable
to post-divorce contributions to the account and income earned on those
contributions. Thus, the court determined $62,280 was "eligible" for
consideration in the calculation of plaintiff's alimony obligation to defendant.
See Steneken v. Steneken, 367 N.J. Super. 427, 437-38 (App. Div. 2004)
(explaining "a supporting spouse's pension may be considered for purposes of
alimony to the extent that post-divorce earnings enhance its value"). The court
A-1441-20
4
apportioned the $62,280 over a ten-year period, and concluded plaintiff had
$6,228 per year, or $519 per month, in income attributable to the post -divorce
contributions to his retirement account "available for alimony." The court stated
it intended "to utilize the entire $519.00 towards the alimony obligation."
The court then calculated plaintiff's alimony obligation based on the
following findings. The court found plaintiff's gross income is co mprised of a
$2,663 social security benefit, and defendant's gross monthly income is $1 ,577,
which consists of a $1,127 social security benefit and $450 per month in wages.
The court concluded "[t]his yields a difference of $1,085.00 in favor
of . . . [p]laintiff." Although not detailed by the court, we discern the
"difference" to which the court referred is between what it determined to be
plaintiff's gross monthly income of $2,663 and defendant's gross income of
$1,577.4
In its determination of plaintiff's alimony obligation, the court stated it
"feels that the difference should be apportioned [sixty percent] in favor
of . . . [p]laintiff and [forty percent] in favor of . . . [d]efendant." The court then
concluded "the amount of alimony available for the obligation from [plaintiff's]
income and retirement assets is a total of $953.00 per month which equates to
4
We note that the actual difference between $2,663 and $1,577 is $1,086.
A-1441-20
5
$220.00 per week." The court added to that amount $25 per week in alimony
based on plaintiff's "other assets, including [his] savings."5 In its October 27,
2020 order, the court directed that plaintiff pay defendant modified alimony of
$250 per week, and noted the modified amount resulted in a fifty-five percent
reduction in plaintiff's alimony obligation. 6
Plaintiff moved for reconsideration of the court's order. In support of the
motion, plaintiff did not challenge the court's calculation of the parties'
respective incomes, its determination that he receives $519 per month in income
attributable to post-divorce contributions to his retirement account, or its finding
the alimony adjustment should be based on a sixty-forty split in his favor of the
difference between the parties' incomes. Instead, plaintiff asserted the court
made mathematical errors in its application of its findings and determinations.
5
The court's opinion contains a typographical error. The opinion states "that
given the other assets including [d]efendant's savings, he can assimilate the extra
$25.00 per week." The reference to defendant, however, is clearly intended as
a reference to plaintiff.
6
As noted, the court's findings included determinations plaintiff should pay
defendant $220 per week based on the income differential between the parties,
and an additional $25 per week based on plaintiff's assets. Those amounts total
$245 per week, and not the $250 per week the court ordered. The court did not
explain the basis for the additional $5 per week incorporated into plaintiff's
alimony obligation.
A-1441-20
6
Plaintiff argued the court erred by failing to include the $519 monthly
income from his retirement account in its calculation of his gross income.
Plaintiff claimed that, as a result of the error, the income differential the court
used to determine alimony was calculated inaccurately and he lost the full
benefit of the sixty-forty split of the income differential the court found should
be applied in his favor. More particularly, plaintiff argued the court determined
the income differential between the parties was $1,085 based on the difference
between plaintiff's $2,663 monthly social security income and defendant's
$1,577 income. Plaintiff reasoned that if the court included his $519 monthly
income from his retirement account, his gross income is $3,182 and the
difference between his income and defendant's is actually $1,605.
Plaintiff further contended that since the court determined the sixty-forty
split of the income differential should be applied in his favor, he should have
been ordered to pay only forty percent of $1,605, or $642 monthly, and $148
weekly, in alimony based on his income. Plaintiff argued the court inaccurately
calculated the differential without inclusion of the $519 income he receives from
the retirement account, and that the court later added the entire $519 amount to
his monthly alimony obligation without making any allocation of that amount in
his favor based on the sixty-forty split.
A-1441-20
7
Plaintiff further contended the court's errors incongruously result in
defendant's receipt of a gross monthly income, including alimony, of $2,660.33,
with plaintiff's income—after paying alimony—reduced to only $2098.67. 7
Plaintiff argued the court's errors "flip[] [the parties'] incomes to the point
where . . . defendant is earning more and netting more than [plaintiff] on a
monthly basis," thereby "discounting [his] good faith retirement while actually
putting [him] in a worse financial position than . . . defendant." Plaintiff
requested that the court reconsider its October 27, 2020 order, include the $519
in retirement income in the calculation of the parties' income differential, and
set his modified alimony obligation at $150 per week. 8
7
The court's weekly alimony award of $250 totals $13,000 annually and
$1,083.33 monthly. Plaintiff notes that after paying defendant $1,083.33 each
month, his gross income of $3,182 is reduced to $2,098.67, and defendant's
income, including social security ($1,127), her monthly wages ($450), and
alimony ($1,083.33), totals $2,660.33.
8
A $150 weekly alimony obligation totals $7,500 per year and $625 per month.
Acceptance of plaintiff's argument would result in a net income to him, after
payment of alimony, of $2,557 ($3,182 – $625 = $2,557), and a gross income to
defendant of $2,202 ($1,577 + $625 = $2,202). Plaintiff argued a $150 weekly
payment is not only appropriate after the court's mathematical errors are
corrected, but it is also fair and equitable because he earns much more than
defendant, and a $150 per week alimony payment results in an allocation of
fifty-three percent of the parties' total income to him and forty-seven percent to
defendant.
A-1441-20
8
In its December 18, 2020 order, the court denied plaintiff's motion, finding
reconsideration inappropriate because plaintiff sought only to reargue the issues
decided by the court following our remand. The order also denied plaintiff's
request that his alimony obligation be reduced to $150 per week. This appeal
followed.
II.
Plaintiff's notice of appeal only challenges the court's December 18, 2020
order denying his reconsideration motion, and his arguments on appeal are
directed to the court's denial of that motion. "We review 'only the judgment or
orders designated in the notice of appeal,'" Kornbleuth v. Westover, 241 N.J.
289, 298-99 (2020) (quoting 1266 Apartment Corp. v. New Horizon Deli, Inc.,
368 N.J. Super. 456, 459 (App. Div. 2004)), and therefore limit our analysis to
the court's order denying plaintiff's motion for reconsideration, id. at 299 (noting
"the commentary to Rule 2:5-1 provides that 'if the notice [of appeal] designates
only the order entered on a motion for reconsideration, it is only that proceeding
and not the order that generated the reconsideration motion that may be
reviewed'" (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 6 on R.
2:5-1(e)(1) (2020)).
A-1441-20
9
"[A] motion for reconsideration 'is not properly brought simply because a
litigant is dissatisfied with a judge's decision, nor is it an appropriate vehicle to
supplement an inadequate record.'" Guido v. Duane Morris LLP, 202 N.J. 79,
87 (2010) (citation omitted). Rather, a motion for reconsideration "is primarily
an opportunity to seek to convince the court that either 1) it has expressed its
decision based upon a palpably incorrect or irrational basis, or 2) it is obvious
that the court either did not consider, or failed to appreciate the significance of
probative, competent evidence." Kornbleuth, 241 N.J. at 301 (quoting Guido,
202 N.J. at 87-88). "[T]he aggrieved party [must] 'state[] with specificity the
basis on which [the motion for reconsideration] is made, including a statement
of the matters or controlling decisions which counsel believes the court has
overlooked or as to which it has erred.'" Ibid. (fourth alteration in original)
(quoting R. 4:49-2).
"We will not disturb the trial court's reconsideration decision 'unless it
represents a clear abuse of discretion.'" Ibid. (quoting Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 283 (1994)). "An abuse of discretion 'arises
when a decision is made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis.'" Id. at 302
A-1441-20
10
(quoting Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super.
378, 382 (App. Div. 2015)).
In his pro se brief, plaintiff reprises the arguments he made to the motion
court. He claims the reconsideration motion should have been granted because
the court made a mathematical error in its calculation of the difference between
his income and defendant's by failing to include his $519 monthly retirement
benefit in his gross income. He also contends the failure to include the benefit
in his gross income resulted in a miscalculation of the income differential the
court used to determine the modified alimony obligation.
We agree the court was required to include plaintiff's receipt of the $519
monthly retirement benefit in its calculation of the income differential between
plaintiff and defendant. That benefit, as determined by the court, cons tituted
part of plaintiff's gross income. Indeed, we remanded the matter for the express
purpose of having the court precisely determine the amount of income from the
retirement account so it could be properly considered in the calculation of
plaintiff's alimony obligation and defendant's entitlement, if any, to alimony
following plaintiff's retirement. See Engelhardt, (slip op. at 13).
The court did not fully detail the calculations it employed to determine
plaintiff's alimony obligation, and its initial opinion following our remand
A-1441-20
11
includes statements suggesting it did not include the $519 in its calculation of
plaintiff's monthly income and did not apply the sixty-forty split of the income
differential to the $519. For example, the court stated it was its "intention to
utilize the entire $519 towards the alimony obligation," and, when addressing
the income differential, the court referred only to the difference
between . . . plaintiff's monthly social security income ($2,663) and defendant's
income from social security and her wages ($1,577).
We are not persuaded those statements establish the court failed to
consider plaintiff's monthly retirement benefit in its calculation of his gross
income and the income differential between the parties. Simple mathematics
demonstrate that, as a matter of fact, the court included plaintiff's $519 monthly
retirement benefit in the calculation of his gross income, the income differential,
and the sixty-forty split the court applied to determine the alimony amount.
With $519 in retirement income and $2,663 in social security benefits included,
plaintiff's monthly gross income is $3,182. As noted, defendant's gross income
is $1,577. Thus, the monthly income differential between plaintiff and
defendant is, as plaintiff contends, $1,605. Sixty percent of $1,605 is $963, and
forty percent of $1,605 is $642.
A-1441-20
12
The court found plaintiff's modified alimony obligation based on his
income to be $953 per month, and it concluded that equated to $220 per week.
We are convinced the court's opinion includes either a typographical error or a
mathematical error in setting forth the monthly alimony amount, and that t he
court intended to establish a modified alimony amount of sixty percent of the
$1,605 differential between plaintiff's gross income, including the $519 in
retirement income, and defendant's gross income. As noted, that amount is $963
per month, not the $953 amount we conclude the court erroneously referred to
in its October 27, 2020 opinion and order. The $963 amount could only be a
product of the court's inclusion of plaintiff's $519 monthly retirement benefit in
its calculation of plaintiff's gross income and the income differential the court
used to determine the modified alimony. 9 We reject plaintiff's argument to the
contrary.
Plaintiff raises an additional issue that requires a remand to the motion
court. Plaintiff correctly notes the court's October 27, 2020 opinion and order
states the sixty-forty split of the income differential between the parties shall be
9
Based on its misstatement concerning the monthly alimony amount, it appears
the court also erred by finding the weekly amount, based on the parties' incomes
is, $220 per week. As noted, sixty percent of a $1,605 income differential is
$963. A $963 monthly alimony obligation totals $11,556 annually, and $222.23
weekly.
A-1441-20
13
in his favor. In its determination of the alimony obligation, however, the court
directed that plaintiff pay sixty percent of the income differential to defendant
as modified alimony. That is hardly in plaintiff's favor; it clearly favors
defendant. As plaintiff details in his brief on appeal, if the sixty-forty split is
applied in his favor, he will be required to pay only forty percent of the $1,605
income differential, or $642, in monthly alimony based on his income. That
equates to $148.15 per week. In his motion for reconsideration, plaintiff
requested that the court correct its misapplication of the sixty-forty split and
enter an order modifying his alimony obligation to $150 per week. 10
We are convinced the court abused its discretion by denying plaintiff's
reconsideration motion. The October 27, 2020 order, which plaintiff requested
the court reconsider, contains a clear error in the determination of plaintiff's
modified alimony obligation. The court erred either by failing to apply the sixty-
forty split in plaintiff's favor as it stated it would, or by incorrectly stating it
10
In his reconsideration motion plaintiff sought, and on appeal plaintiff seeks,
entry of an order providing a $150 weekly alimony obligation. Plaintiff's request
is founded solely on his challenge to the court's application of the sixty -forty
split of the income differential. He does not challenge the court's award of the
additional $25 per week based on his assets. See Drinker Biddle & Reath LLP
v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div.
2011) (explaining an issue not addressed in a party's merits brief is deemed
waived).
A-1441-20
14
would apply the split in plaintiff's favor, and then erroneously applying the split
in defendant's favor.
Because it is not possible to determine which of the two errors the court
committed, we reverse the court's December 18, 2020 order denying plaintiff's
reconsideration motion and remand for the court to reconsider its October 2 7,
2020 order by resolving the conflict created by its statement the sixty-forty split
would be applied in plaintiff's favor and its application of the split in defendant's
favor. The court shall make findings of fact and conclusions of law supporting
its decision, and enter an order establishing plaintiff's modified alimony
obligation. R. 1:7-4. On remand, the court shall also correct the mathematical
errors in its calculation of the alimony obligation. 11
Reversed and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
11
As noted, plaintiff did not seek reconsideration of that portion of the October
27, 2020 order awarding defendant $25 per week in alimony based on plaintiff's
assets. As a result, the remand court shall not reconsider that portion of the
modified alimony it ordered on October 27, 2020.
A-1441-20
15