DAVID ANDERSON VS. MELISSA ANDERSON (FM-18-0959-13, SOMERSET COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0922-17T3
A-4025-17T3
DAVID ANDERSON,
Plaintiff-Appellant,
v.
MELISSA ANDERSON,
Defendant-Respondent.
____________________________
Argued December 9, 2019 – Decided May 28, 2020
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0959-13.
David Anderson, appellant, argued the cause pro se.
Marlyn E. Quinn argued the cause for respondent.
PER CURIAM
Plaintiff David Anderson and defendant Melissa Anderson, now known as
Melissa Burton, married in 2005 and had one daughter, who was born in January
2009. Plaintiff filed for divorce in April 2013, claiming irreconcilable
differences between himself and defendant. Defendant filed an answer and
counterclaim, asserting among other causes of action, extreme cruelty. Plaintiff
filed an answer to the counterclaim, generally denying its allegations. It suffices
to say that motion practice commenced almost immediately thereafter and
continued virtually unabated until trial.
During the litigation, the parties mediated an agreement regarding custody
and parenting time. The consent final judgment on these issues provided that
the parties would exercise "joint legal custody and shared residential custody of
their daughter" and would "make all significant decisions that affect[ed their
daughter] after consultation between them." The consent judgment also
provided a visitation schedule for holidays, birthdays, and vacations.
Trial took place on the remaining issues on non-consecutive days from
August 2016 to April 2017. The judge rendered an oral decision and filed a dual
final judgment of divorce (FJOD) on July 7, 2017. We briefly summarize some
relevant trial testimony to place plaintiff's appellate arguments in proper
context.
Plaintiff is defendant's senior by ten years. Both are highly educated, with
plaintiff having attained multiple advanced degrees, and defendant gaining
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employment as a concert cellist. In 2008, they bought a home in Franklin
Township, with defendant paying approximately $100,000 as a down payment
from monies she inherited from her deceased father. Plaintiff initially made the
mortgage payments of approximately $3000 per month. At the time, plaintiff
was employed as a manager in an accounting firm and earned more than $88,000
in 2007; defendant was able to sporadically play some engagements, but her
attempts to find steady employment as a musician were largely unsuccessful.
After the parties' daughter was born, defendant became her primary
caretaker, and was also able to secure some freelance work as a musician and
gave private music lessons. Defendant testified her annual income for 2009 was
$6753.06. Plaintiff continued to work at the accounting firm, which merged
with another firm in 2010. In the year immediately prior to filing for divorce,
plaintiff's income was $135,191.
The mediated final consent judgment provided for the parties' mutual
agreement to "endeavor to live in the same school district" where their daughter
attended school. They placed their marital residence on the market after
defendant paid $16,292.70 for repairs suggested by the realtor. Defendant also
took over payment of most of the mortgage payments until the house eventually
sold in December 2014, yielding less than $10,000 in net proceeds. Both
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plaintiff and defendant moved into apartments in Montgomery Township, where
their daughter attended school.
During the litigation, plaintiff continued to work at the accounting firm.
In 2015, he earned $148,783. Defendant continued working part-time as a
classical musician and gave private music lessons from her home. She obtained
a teaching certificate and was able to find consistent work as a substitute teacher
in the Montgomery Township school district. In 2016, her income for tax
purposes was $40,198.
Plaintiff produced Dr. David Stein, a vocational rehabilitation counselor,
as an expert at trial. Stein never interviewed defendant, but he conducted an
evaluation of defendant's employability in two areas for which she had requisite
skills, i.e., as a teacher or musician. Stein opined that defendant could earn
"somewhere between [fifty] and [sixty-five thousand] dollars a year," but he
acknowledged that employment within those occupations was extremely
competitive, and he found no job openings near where defendant lived.
At trial, both parties described the assets they currently held in various
investment accounts. Plaintiff testified his company's policy compelled his
retirement at age sixty-five, which meant he would retire in August 2017. The
policy applied to partners in the firm, but plaintiff was not a partner. Plaintiff
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said he intended to continue working upon leaving the firm and was considering
a teacher's position with Teach for America that would pay approximately
$55,000 per year.
In an oral opinion, which we discuss as necessary below, the judge
explained his factual findings and legal conclusions in support of the FJOD. In
relevant part, he ordered that defendant would retain all "remaining funds from
the sale of the former marital residence"; the parties would "retain any and all
retirement and nonretirement accounts" in their names, as well as responsibility
for all debts in their names; plaintiff would pay defendant "$800 per week in
limited duration alimony" for a period of five years; plaintiff would pay
defendant "$23 per week in child support" in accordance with Child Support
Guidelines attached to the FJOD; plaintiff would secure health insurance for the
parties' daughter, and unreimbursed medical and other expenses would be split,
54% payable by plaintiff and 46% payable by defendant; and plaintiff would pay
defendant's pendente lite and trial counsel fees in the amount of $9771. The
FJOD required plaintiff's alimony and child support obligations to be paid
through probation "via wage garnishment." Plaintiff filed his appeal from
certain provisions of the FJOD (A-0922-17).
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While the appeal was pending, the probation department moved to enforce
plaintiff's alimony obligations. On March 6, 2018, a different Family Part judge
ordered plaintiff, under threat of possible arrest for failure to comply, to pay
$10,000 by April 6, 2018, $2000 per week thereafter, and continue to submit job
searches demonstrating good faith attempts to find employment (the March 2018
order).1 Citing the FJOD, plaintiff moved for reconsideration, seeking to have
the probation department adjust its account and properly reflect arrears, correct
its designation of plaintiff as a "non-custodial" parent, and modify the job search
obligations imposed by the March 2018 order. Defendant cross-moved seeking
counsel fees.
A third Family Part judge entered an order on April 27, 2018 (the April
2018 order), accompanied by a written statement of reasons. He denied all relief
requested by both parties. Plaintiff then filed a second appeal, A-4025-17, from
the March 6 and April 27, 2018 orders. We have consolidated both appeals for
the purpose of issuing a single opinion.
1
Plaintiff's appendix only includes the order signed by the probation officer,
which may have been the only order entered given the nature of the proceeding.
However, we were provided with a transcript of the March 6, 2018 hearing
before the judge. The body of the order reflects the judge's ruling.
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As to A-0922-17
I.
The trial judge found that despite plaintiff's extensive testimony regarding
his employer's mandatory retirement policy, the testimony was "unpersuasive as
to [p]laintiff's employability." The judge also found plaintiff failed to establish
that he had to leave his position when he turned sixty-five, and that "[e]ven if
[he] did, the [p]laintiff did not demonstrate a good faith, robust job search for a
position, or income of the sort that he ha[d] historically earned." The judge
imputed $149,000 income to plaintiff, approximately the amount plaintiff
earned in 2014.
After imputing $40,000 in annual income to defendant, the judge analyzed
the alimony claim by considering the factors listed in N.J.S.A. 2A:34-23(b). He
found that alimony was "necessary" given rental costs where the parties resided
and their daughter attended school. The judge noted "[n]either party can
maintain the standard of living" they enjoyed pre-divorce, and defendant
required more assistance "because of the earnings disparity." The judge limited
the duration of alimony to five years, reasoning that after that time the parties'
daughter would be a teenager, able to stay home alone, and defendant could then
pursue additional full-time employment opportunities and career goals.
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Plaintiff posits several arguments regarding the limited duration alimony
award. In Points I, II, and III, plaintiff contends that the judge failed to consider
N.J.S.A. 2A:34-23(j), which provides that "alimony may be modified or
terminated upon the prospective or actual retirement of the obligor," and the
judge's omission violated plaintiff's due process rights. In Point IV, plaintiff
claims the judge erred in calculating the income he imputed to both parties, and,
in Point VII, plaintiff argues the judge utilized "outdated expense data" in
fashioning the alimony award. We disagree with these arguments and affirm the
alimony award.
"We review the Family Part judge's findings in accordance with a
deferential standard of review, recognizing the court's 'special jurisdiction and
expertise in family matters.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 282–83
(2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "[F]indings by a
'trial court are binding on appeal when supported by adequate, substantial,
credible evidence.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare,
154 N.J. at 411–12.) Deference is given to the credibility determinations made
by the trial judge who "hears the case, sees and observes the witnesses, and hears
them testify," thus, affording the trial judge "a better perspective than a
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reviewing court in evaluating the veracity of a witness." Ibid. (quoting Cesare,
154 N.J. at 412).
"Alimony is a claim arising upon divorce, which is rooted in the prior
interdependence occurring during the parties' marital relationship. '[A]limony
is neither a punishment for the payor nor a reward for the payee.'" Reese v.
Weis, 430 N.J. Super. 552, 569 (App. Div. 2013) (alteration in original) (quoting
Mani v. Mani, 183 N.J. 70, 80 (2005)). "Alimony relates to support and standard
of living; it involves the quality of economic life to which one spouse is entitled,
which then becomes the obligation of the other." Gnall, 222 N.J. at 429
(citations omitted); see also Crews v. Crews, 164 N.J. 11, 16 (2000) (noting the
"touchstone" for an alimony determination is the parties' standard of living
during the marriage). Whenever possible, the alimony award should be set at
an amount that will "enable each party to live a lifestyle 'reasonably comparable'
to the marital standard of living." Id. at 26 (citing N.J.S.A. 2A:34-23(b)(4)).
Courts may award alimony "as the circumstances of the parties and the
nature of the case shall render fit, reasonable and just[.]" N.J.S.A. 2A:34-23.
"Whether alimony should be awarded is governed by distinct, objective
standards defined by the Legislature in N.J.S.A. 2A:34-23(b)." Gnall, 222 N.J.
at 429. Limited duration alimony, as awarded here, "was created as a remedy in
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order to address a dependent spouse's post-divorce needs following 'shorter-term
marriage where permanent or rehabilitative alimony would be inappropriate or
inapplicable but where, nonetheless, economic assistance for a limited period of
time would be just.'" Id. at 431 (quoting J.E.V. v. K.V., 426 N.J. Super. 475,
485–86 (App. Div. 2012)). There is no question that the trial judge considered
the statutory factors, and the decision to grant defendant limited duration
alimony was not a mistaken exercise of discretion under the circumstances of
this case. Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div.
2009).
Plaintiff's reliance on N.J.S.A. 2A:34-23(j) is misplaced. Enacted as an
amendment to the alimony statute in 2014, this subsection provides that
"[a]limony may be modified or terminated upon the prospective or actual
retirement of the obligor." Ibid. (emphasis added). Thereafter, the amendment
set factors for courts to consider when modifying or terminating an existing
alimony obligation. Subsection (j)(1) creates "a rebuttable presumption that
alimony shall terminate upon the obligor . . . attaining full retirement age,"
although for good cause and upon consideration of certain factors, "[t]he
rebuttable presumption may be overcome[.]" N.J.S.A. 2A:34-23(j)(1).
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Subsection (2) addresses situations "[w]here the obligor seeks to retire prior to
attaining full retirement age[.]" N.J.S.A. 2A:34-23(j)(2).2
The trial judge did not consider the statute because it did not apply.
Subsection (1) applies only to modification or termination of "orders entered
after the amendments' effective date." Landers v. Landers, 444 N.J. Super. 315,
323–24 (App. Div. 2016). A different standard applies to retirement
modification of pre-amendment judgments, orders or agreements. Ibid. (citing
N.J.S.A. 2A:34-23(j)(3)). At the time of trial, no alimony obligation existed.
Therefore, neither subsection (j)(1) nor (j)(3) applied. Plaintiff's arguments to
the contrary do not warrant discussion in a written opinion, because they are
contrary to our precedent and the clear language of the statute. DiProspero v.
Penn, 183 N.J. 477, 492 (2005).
Plaintiff also contends that in violation of his due process rights, the judge
never advised him that subsection (j) did not apply. We know of no authority
2
"Full retirement age" is defined as "the age at which a person is eligible to
receive full retirement benefits under section 216 of the federal Social Security
Act, 42 U.S.C. § 416." N.J.S.A. 2A:34-23.
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that compels the court to provide its view of controlling legal principles in
advance. The argument warrants no further discussion. R. 2:11-3(e)(1)(E).3
We also reject plaintiff's other challenges to the alimony award. Plaintiff
never testified that he was retiring from the work force, but, rather, only that he
intended to seek employment in a position that paid significantly less than he
had historically earned. Under the circumstances, the judge's decision to impute
income to plaintiff regardless of his company's retirement policy was not a
mistaken exercise of discretion. See Elrom v. Elrom, 439 N.J. Super. 424, 434
(App. Div. 2015) ("Imputation of income is a discretionary matter not capable
of precise or exact determination[,] but rather requir[es] a trial judge to
realistically appraise capacity to earn and job availability.") (alterations in
original) (quoting Gnall v. Gnall, 432 N.J. Super. 129, 158 (App. Div. 2013)).
In setting the amount of imputed income for both parties, the judge
carefully considered the trial testimony. He rejected plaintiff's expert's
testimony regarding defendant's earning ability not only because, as plaintiff
claims, Stein failed to interview defendant, but also because the employment
3
Plaintiff also contends his due process rights were violated by the trial judge's
delay in issuing the JOD and accompanying decision. The decision was issued
less than three months after the trial ended; and plaintiff did not suffer any
prejudice as a result.
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positions Stein identified were essentially inaccessible to defendant. The judge
determined Stein's conclusions "were unsupported by the facts of this case." For
reasons already explained, the judge's imputation of annual income to plaintiff
was based on credible evidence in the record.
Finally, in Point VII, plaintiff argues that the court erred in its alimony
calculation because it used "outdated expense data." Plaintiff points to pendente
lite decisions made by another judge, which presumably showed actual lifestyle
expenses for both parties after the marital home was sold.
However, Rule 5:5-2(c) provides:
Parties are under a continuing duty in all cases to
inform the court of any material changes in the
information supplied on the case information statement.
All amendments to the statement shall be filed with the
court no later than [twenty] days before the final
hearing. The court may prohibit a party from
introducing into evidence any information not
disclosed or it may enter such other order as it deems
appropriate.
[(Emphasis added).]
The only expense data that plaintiff entered into evidence at trial was a CIS from
2013, and that was introduced during cross-examination, when defense counsel
attempted to rebut plaintiff's claim that pendente lite support should be reduced.
As the trial judge noted in his decision, "Plaintiff did not testify in any level of
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detail to his expenses, other than from a historic perspective, to address his . . .
claim [for a reduction in support]."
We affirm the award of limited duration alimony. 4
II.
In Point VI, plaintiff contends the judge failed to account for the equally
shared parenting schedule in this case when he awarded child support to
defendant. Plaintiff argues the judge was required to apply the analytic formula
adopted by the trial court in Wunsch-Deffler v. Deffler, 406 N.J. Super. 505,
509 (Ch. Div. 2009). We disagree.
Our rules require that the court apply the Child Support Guidelines when
considering child support; however, the court may modify or disregard the
guidelines where good cause is shown. R. 5:6A. Here, the court applied the
Guidelines with precision, using the shared parenting worksheet, found at
Appendix IX-D, and the schedule of child support awards, found at Appendix
IX-F, and calculated that plaintiff owed defendant $23 per week in child support.
The judge specifically rejected application of the Wunsch-Deffler formula,
4
In Point VII, plaintiff also extends his argument about stale financial data to
the judge's imputation of income for purposes of determining child support. We
need not address the argument separately. The judge did not mistakenly exercise
his broad discretion in determining the amount of income to impute to the
parties.
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noting that it would result in plaintiff paying no child support, which would be
"inequitable under the circumstances."
The decision in Wunsch-Deffler was not binding on another trial court.
Given the wide income disparity between the parties, ordering plaintiff to pay
such a modest amount of child support was not unjust. We refuse to reverse the
FJOD in this regard.
III.
In Point VIII, plaintiff contends the judge failed to consider prior pendente
lite orders requiring defendant to pay her pro rata share of income taxes for
2012, 2013, and 2014, and give plaintiff a credit because he overpaid his share
of taxes due to defendant's failure to cooperate. In Point IX, plaintiff challenges
the judge's determinations regarding equitable distribution. He contends the
judge's fact-finding misstated "established facts and . . . disregard[ed] other
pertinent established facts." In Point X, plaintiff challenges the counsel fee
award, arguing the judge failed to adjudicate the pendente lite tax liability issue
and erred in his finding regarding the parties' respective abilities to pay. We are
unpersuaded by all these arguments and affirm.
Pendente lite support orders are subject to modification at the time final
judgment is entered. Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div.
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1995). Any changes in the initial orders rest with the trial judge's discretion.
Jacobitti v. Jacobitti, 263 N.J. Super. 608, 617 (App. Div. 1993). That is because
[i]n many instances the motion judge is presented reams
of conflicting and, at time, incomplete information
concerning the income, assets and lifestyles of the
litigants. The orders are entered largely based upon a
review of the submitted papers supplemented by oral
argument. Absent agreement between the parties,
however, a judge will not receive a reasonably
complete picture of the financial status of the parties
until a full trial is conducted. Only then can the judge
evaluate the evidence, oral and documentary, and
weigh the credibility of the parties. Only then can the
judge determine whether the supporting spouse has the
economic means represented by the other spouse or in
the case of declining income has suffered legitimate
economic reversal or has been afflicted with a
temporary case of diminished resources occasioned by
a divorce.
[Mallamo, 280 N.J. Super. at 16.]
Here, the trial judge concluded there was no tax liability for 2012, noting
the complaint for divorce was filed after the tax filing deadline and after taxes
were paid in 2013. A previous judge had entered the June 2014 order, requiring
defendant to pay taxes for 2013 "at the parties' overall tax rate, on her
individually earned share of their overall gross income." However, in January
2016, a different judge, not the trial judge, denied plaintiff's pendente lite motion
to compel defendant to pay $823.39, which plaintiff claimed was his increased
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tax liability for 2013 because defendant failed to cooperate and file a joint return.
That judge found the earlier order "unclear," and noted plaintiff had failed to
provide "the basis for his claim."
Plaintiff makes no specific claim about the 2014 taxes. The trial judge
noted that plaintiff had obtained the benefit of claiming his daughter as a
deduction and the carrying costs associated with the marital home, even though
defendant had actually made the payments. To the extent we have not otherwise
specifically addressed plaintiff's arguments, they lack sufficient merit to warrant
further discussion. R. 2:11-3(e)(1)(E).
Equally without merit is plaintiff's argument about the judge's fact-finding
regarding equitable distribution. We note plaintiff was not ordered to reimburse
defendant for monies the judge found she spent on repairs to the marital home
and mortgage payments she made until it was sold. Contrary to plaintiff's
argument, the pertinent question in determining equitable distribution is not
"which of the parties is in worse financial condition relative to the other[,]" but,
rather, whether the judge considered the factors listed in N.J.S.A. 2A:34-23.1 in
making the award. Here, the judge considered those factors, and thus, his
decision was not an abuse of discretion. See M.G. v. S.M., 457 N.J. Super. 286,
294 (App. Div. 2018) ("A Family Part judge has broad discretion . . . in
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allocating assets subject to equitable distribution." (quoting Clark v. Clark, 429
N.J. Super. 61, 71 (App. Div. 2012))).
Lastly, the award of counsel fees is left to the broad discretion of the
Family Part judge. Slutsky v. Slutsky, 451 N.J. Super. 332, 365 (App. Div.
2017). Therefore, "[w]e will disturb a trial court's determination on counsel fees
only on the 'rarest occasion,' and then only because of clear abuse of discretion."
Ibid. (quoting Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008)).
Here, the judge found prior pendente lite fee awards to defendant were
justified and reasonable, and defendant incurred legal expenses, still awarded
and unpaid, as a result of unnecessary enforcement actions occasioned by
plaintiff's failures to abide by court orders. The judge also evaluated the factors
listed in Rule 5:3-5(c), including defendant having prevailed on key issues at
trial, and awarded defendant one-half of the amount she sought for fees incurred,
in addition to the pendente lite fee awards.
There is no basis to reverse the counsel fees awarded to defendant in the
FJOD.
IV.
"Extreme cruelty . . . is defined as including any physical or mental cruelty
which endangers the safety or health of the plaintiff or makes it improper or
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unreasonable to expect the plaintiff to continue to cohabit with the defendant[.]"
N.J.S.A. 2A:34-2(c).5 In Point V, plaintiff argues it was error to grant defendant
a divorce on this ground. Plaintiff cites the judge's failure to make any factual
findings on the issue; and also claims the trial evidence failed to support the
cause of action.
At the very beginning of his oral opinion, the judge found that plaintiff
proved "a cause of action for divorce based upon irreconcilable difference s, . . .
based on . . . [d]efendant's testimony, she . . . has met and proven a cause of
action for extreme cruelty under her counterclaim for divorce." There was no
further mention of the issue in the more than one hundred succeeding pages of
transcript.
The Supreme Court has explained that the statutory definition of extreme
cruelty
constitutes an effort to modernize the concept of cruelty
in a moderate fashion. It is broad enough to cover
serious martial misconduct which endangers health or
safety, or makes it improper or unreasonable to expect
continues cohabitation. The terms are flexible but do
not include trivial misconduct or ordinary contretemps.
Minor frictions or frustrations, such as nagging or
bullying, would not suffice unless in the aggregate
when combined with other misconduct the cumulative
5
Since the claim was asserted in defendant's counterclaim, when considering
our references to the statute and relevant case law, she is "plaintiff."
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effect endangers health or makes the relationship so
intolerable that further cohabitation cannot reasonably
be expected.
An attempt is made to focus upon the effect of
extreme cruelty upon the plaintiff, rather than upon the
defendant's mens rea or intent to inflict pain. The
result, insofar as the plaintiff is concerned, is the same
whether the "cruelty" is calculated and designed or a
by-product of the defendant's self-centeredness.
Moreover[,] the result to the marriage relationship may
be the same regardless of the defendant's motives. The
focus should be upon what the misconduct has done to
the marriage, not on punishing the defendant.
[Kinsella v. Kinsella, 150 N.J. 276, 310 (1997) (quoting
Final Report of the N.J. Divorce Law Study Comm'n 6
(1970)).]
"[T]he subjective experience of the plaintiff, rather than the objective quality of
the acts complained of, [i]s determinative." Id. at 311 (citing Devito v. Devito,
136 N.J. Super. 580, 583 (Ch. Div. 1975)).
At trial, defendant testified at length about plaintiff's insistence that she
use her inheritance for the down payment on the house and certain medical
treatments prior to the birth of the parties' daughter; his refusal to reimburse her
for family necessities; his lack of empathy for other medical conditions that
required treatment; the time he spent away from home; and his general refusal
to consider her financial and career needs when making family decisions.
However, as noted, the judge never made specific findings as to this testimony
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in relation to the cause of action and failed to provide any reasoning for his
conclusion that defendant met her burden of proof.
"Trial judges are under a duty to make findings of fact and to state reasons
in support of their conclusions." Giarusso v. Giarusso, 455 N.J. Super. 42, 53
(App. Div. 2018) (quoting Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div.
1996)). "Naked conclusions do not satisfy the purpose of [Rule] 1:7-4." Ibid.(alteration in original) (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980)).
The judge failed to do so in this case.
However, the FJOD simply provides that "[t]he parties are . . . divorced
and the marriage is dissolved pursuant to N.J.S.A. 2A:34[,]" without reference
to the statutory grounds for divorce. Our review is limited to "the judgment
entered by the trial court, not the reasoning underlying the court's decision."
Bandler v. Melillo, 443 N.J. Super. 203, 210 (App. Div. 2015) (citing Do-Wop
Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)). We are convinced that the
evidence adduced by both parties supported the court's dual judgment for
divorce under N.J.S.A. 2A:34-2(i), irreconcilable differences, and affirm.
In sum, in A-0922-17, we affirm in all respects.
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As to A-4025-17
In his oral decision supporting the FJOD, the trial judge cited the January
2016 pendente lite order we referenced above and expressly denied plaintiff's
request to revisit the then-current arrears of $17,658.70, finding plaintiff
provided "no reason" to do so. The FJOD did not specifically address the issue
of pendente lite arrears, however, the Uniform Summary Support Order (USSO)
signed by the trial judge included the weekly alimony and child support amounts
in the FJOD but had zero as the amount for a weekly arrears payment.
We gather an arrest warrant was subsequently issued for plaintiff's failure
to comply, and plaintiff moved pursuant to an order to show cause to vacate the
warrant. In December 2017, another judge vacated the arrest warrant and
ordered plaintiff to continue his job search efforts; she scheduled a hearing in
March 2018 for an update on plaintiff's efforts. Nothing in the order to show
cause indicates plaintiff contested the amount of arrears.
At the March 6, 2018 hearing, probation reported defendant's arrearages
exceeded $36,000. The transcript from the hearing reveals plaintiff claimed the
amount was "wrong," and probation "made a clerical error in transcribing" the
FJOD. Plaintiff acknowledged that probation would not modify the amount of
his monthly payments unless he filed a motion, which he admittedly had failed
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to do. Instead, plaintiff spent the balance of the hearing attempting to relitigate
the trial and the alimony awarded in the FJOD. The judge entered the March
2018 order, requiring plaintiff to pay a lump sum of $10,000 within one month,
and $2000 per week towards arrears thereafter.
Plaintiff's motion for reconsideration was heard on the papers and
subsequently denied by another judge. In his written statement of reasons, the
judge rejected plaintiff's claim that the arrears amount was a clerical error. The
judge carefully reviewed the trial judge's oral decision and concluded that he
never vacated the arrears then due from plaintiff. Citing a letter from the
vicinage ombudsman in response to plaintiff's complaint, the judge noted that
the USSO was prepared by Family Division staff and reflected the probation
department's admitted failure to "sync up" the existing pendente lite arrears with
plaintiff's obligations going forward.
The judge also denied plaintiff's request to reconsider the March 2018
order. The judge cited the pending appeal, findings made by the trial judge in
his oral decision, and plaintiff's failure to seek a stay of his support obligations
pending appeal. Lastly, the judge denied plaintiff's request to change his
designation as "non-custodial" parent in probation department records, noting
the ombudsman's response that the designation was purely a term applied to all
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obligors by probation's record system. The April 2018 order denied plaintiff's
requests to have probation "adjust its records of support arrearage . . . modify
the requirements for the job search . . . [and] correct the designation of plaintiff
in probation records from non-custodial to custodial[.]"
Before us, plaintiff contends it was error to carry over any pendente lite
arrears in addition to the amounts awarded defendant in the FJOD. He points to
the USSO as evidence that the trial judge never ordered those arrears be carried
forward. He also argues that in entering the March 2018 order, the judge failed
to consider his ability to pay, and therefore we must void that portion of her
order that contemplated potential incarceration if plaintiff failed to comply with
his obligations. Lastly, plaintiff contends that because he shares custody of his
daughter with defendant, probation's records should be amended to reflect he is
a custodial, and not a non-custodial, parent.
In partial response, defendant argues we should dismiss the appeal
entirely, because "[p]laintiff [has] failed to provide the motion pleadings and
orders necessary for the appellate court to review the trial court's decision . . . ."
Indeed, appellants are required to provide all "parts of the record . . . as are
essential to the proper consideration of the issues." R. 2:6-1(a)(1)(I). This
includes, for example, all motion papers filed on a motion for reconsideration.
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Newman v. Isuzu Motors Am., Inc., 367 N.J. Super. 141, 145 (App. Div. 2004).
"Without the necessary documents," our appellate review is thwarted,
sometimes leaving us with "no alternative but to affirm." Soc'y Hill Condo.
Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177–78 (App. Div. 2002); see
also Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 54–55 (2004) (affirming the
appellate court's refusal to address an argument raised by appellant, where
appellant failed to include an order or transcript relating to the argument).
Here, plaintiff failed to include in his appendix any of the underlying
motion pleadings. We therefore have the discretion to dismiss plaintiff's appeal
based on these procedural deficiencies. Nevertheless, to bring this protracted
litigation to some semblance of closure, we address the issues.
As to the incorporation of arrears from pendente lite orders, "[i]t is well-
established . . . that 'on an application to determine the amount of arrearages and
to compel their payment, the court has discretion to determine whether the prior
support order or judgment should be enforced and whether and to what extent a
spouse should be forced to pay[.]'" Weitzman v. Weitzman, 228 N.J. Super.
346, 358 (App. Div. 1988) (quoting Mastropole v. Mastropole, 181 N.J. Super.
130, 141 (App. Div. 1981)).
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Moreover, resolution of a motion for reconsideration is addressed to the
sound discretion of the trial court. Palombi v. Palombi, 414 N.J. Super. 274,
288 (App. Div. 2010).
It is not appropriate merely because a litigant is
dissatisfied with a decision of the court or wishes to
reargue a motion, but
should be utilized only for those cases
which fall into that narrow corridor in
which either 1) the Court 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.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990).]
Here, plaintiff has not provided us with any supporting documents he
supplied to the judge in urging reconsideration. Nevertheless, we conclude that
the judge did not abuse his discretion in denying the motion. He relied on the
trial judge's oral opinion and concluded that the judge did not vacate the
pendente lite support arrearages when filing the FJOD. Although the FJOD
lacked an express provision regarding arrearages, the trial judge's oral opinion
controls any implicit conflict. Taylor v. Int'l Maytex Tank Term. Corp., 355
N.J. Super. 482, 496 (App. Div. 2002). Moreover, plaintiff's reliance on the
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contemporaneous USSO is misplaced, not only because, as the judge explained,
probation failed to accurately prepare the order, but also because the USSO
specifically states, "except as provided herein, all prior orders of the court
remain in full force and effect."
We need not consider plaintiff's argument that the judge erred in
concluding reconsideration of the arrears was preserved for presentation in the
already-filed appeal from the FJOD. Plaintiff's over-reads the judge's written
statement of reasons, and, as already noted, we review only the order entered,
not the judge's reasoning. Bandler, 443 N.J. Super. at 210.
Defendant asserts, among other things, that plaintiff's request that we void
that portion of the March 2018 order that provided for the issuance of an arrest
warrant if plaintiff remained delinquent in his obligations is moot. Although he
did not supply any of the underlying filings, plaintiff acknowledges in his brief
that he was arrested in May, subsequent to entry of the April 2018 order. We
are advised by defendant that plaintiff was released after an agreement to pay
$2500. Unfortunately, neither party supplied us with a copy of that a subsequent
order.
In any event, contrary to plaintiff's terse statement in rejoinder to
defendant's claim, the issue is moot. See Betancourt v. Trinitas Hosp., 415 N.J.
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Super. 301, 311 (2010) ("[A]n issue is 'moot' when the decision sought in a
matter, when rendered, can have no practical effect on the existing controversy."
(quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257–58 (App.
Div. 2006))). Here, the Family Part already effectuated the provision in the
March 2018 order that enforced payment of plaintiff's obligation on threat of
arrest.
Lastly, neither the March 2018 order nor the April 2018 order denotes that
plaintiff is a "non-custodial parent." Nor is there any document in the record
that uses that designation. Based on the ombudsman's response to plaintiff's
letter of complaint, we have no doubt plaintiff was referred to by the probation
department in some undisclosed manner or document as a non-custodial parent.
Also, based on the ombudsman's response, we assume that this vicinage's
probation department was not alone in having to deal with a record -keeping
apparatus that lacked precision. However, given the state of the appellate
record, and our inability to assess statewide ramifications and practical concerns
that might be occasioned by our intervention, we refuse to consider plaintiff's
argument.
Affirmed.
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