S.W. VS. G.M. (FM-20-2163-11, UNION 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NOT FOR PUBLICATION WITHOUT THE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-3286-19T2
S.W.,
Plaintiff-Respondent,
v.
G.M.1,
Defendant-Appellant.
________________________
Argued December 15, 2020 — Decided January 07, 2021
Before Judges Yannotti, Haas, and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Union County, Docket
No. FM-20-2163-11.
Brian G. Paul argued the cause for appellant
(Szaferman, Lakind, Blumstein & Blader, PC,
attorneys; Brian G. Paul, of counsel and on the briefs).
Jeffrey P. Weinstein argued the cause for respondent
(Weinstein Lindemann & Weinstein, attorneys; Jeffrey
P. Weinstein, of counsel and on the brief).
1
We use initials to protect the parties' privacy. R. 1:38-3(d).
PER CURIAM
Defendant G.M. appeals from an April 6, 2020 order, entered after we
remanded this matter for a second time to the trial judge to address alimony,
Mallamo2 credits, and the life insurance securing plaintiff S.W.'s alimony
obligation. Once again, we reverse and remand the matter for a new judge to
determine these issues in accordance with our instructions.
The parties are familiar with the relevant facts which we recounted in
detail in two prior decisions. S.W. v. G.M., No. A-4063-14 (Feb. 20, 2018);
S.W. v. G.M., 462 N.J. Super. 522 (App. Div. 2020). We instructed the trial
judge to "numerically determine the marital lifestyle and apportion it." Id. at
534. We held the judge's use of defendant's pendente lite budget as the starting
point for the alimony determination was inappropriate because it ignored the
judge's own findings that the parties spent the entirety of their income , and
resulted in plaintiff receiving a lopsided share of the disposable income and
defendant not sharing in a lifestyle comparable to the one enjoyed during the
marriage. Id. at 532-33. Because we directed the judge to revisit the alimony
calculation, we also instructed he revisit defendant's request for Mallamo
credits. Id. at 534.
2
Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995).
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Our decision also required the trial judge to recalculate the amount of life
insurance securing the alimony obligation. We provided the factors the judge
was required to consider in determining the life insurance figure, in addition to
a means of calculating the amount of insurance. Id. at 534-35. Notably, as
relates to the calculation of the death benefit amount, which required an
assessment of the approximate duration of the alimony obligation, we stated
"there was no testimony, and only a disputed assertion regarding plaintiff's
potential retirement at the full social security age[,]" which the judge had
utilized to compute the life insurance. Id. at 535-36.
Following the second remand, defendant's counsel sent a letter dated
March 10, 2020, to the trial judge requesting a conference to "determine the
protocol and schedule for the remand proceeding." The judge ignored the
communication and instead issued the April 6, 2020 order accompanied by a
four paragraph statement of reasons. The judge quantified the marital lifestyle
as $1,520,268 per year, maintained the alimony in the amount he had determined
following our first remand, and addressed neither the Mallamo nor the life
insurance issues of the remand. Regarding the alimony, the judge reasoned as
follows:
On the first remand, this court endeavored to review
[d]efendant's own Case Information Statement [(CIS)]
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as to her lifestyle at the time of trial. The court
carefully compared the parties' [CISs] and attempted to
discern what her reasonable expenses were as opposed
to their expenses during the marriage, recognizing at all
times that the standard, utilizing all of the statutory
factors, was for this court to fashion a result of a
"reasonably comparable" lifestyle. That process
resulted in a conclusion that provides [d]efendant with
an annual tax-free income of $441,504, in addition to
any income generated by the equitable distribution she
has received . . . . This court continues to believe that,
by any calculation, this amount allows her to maintain
a reasonably comparable lifestyle.
Defendant raises the following points on this appeal:
POINT I: THE TRIAL COURT FAILED TO FOLLOW
CONTROLLING LEGAL PRINCIPLES AND THE
APPELLATE DIVISION'S REMAND
INSTRUCTIONS WHEN IT SET A POST-DIVORCE
BUDGET FOR DEFENDANT THAT WAS
CALCULATED ON THE BASIS OF HER CURRENT
PENDENTE LITE EXPENSES, WHEN LIVING
BENEATH THE MARITAL LIFESTYLE, RATHER
THAN QUANTIFYING THE POST-DIVORCE
BUDGET NECESSARY FOR HER TO LIVE
REASONABLY COMPARABLE TO THE MARITAL
LIFESTYLE.
POINT II: THE TRIAL COURT ABUSED ITS
DISCRETION AND ACTED AGAINST THE
WEIGHT OF THE EVIDENCE WHEN DECIDING
DEFENDANT'S REQUEST FOR A PENDENTE LITE
CREDIT PURSUANT TO MALLAMO V.
MALLAMO IN THE FIRST REMAND, AND WHEN
FAILING TO RECALCULATE IT AS PART OF THE
SECOND REMAND.
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POINT III: THE TRIAL COURT ERRED BY NOT
COMPLYING WITH THE APPELLATE DIVISION'S
INSTRUCTIONS TO RECALCULATE THE
AMOUNT OF LIFE INSURANCE NECESSARY TO
SECURE THE ALIMONY OBLIGATION AS PART
OF THE SECOND REMAND.
POINT IV: RATHER THAN REMANDING THE
MATTER FOR A THIRD TIME AND SENDING IT
TO A NEW JUDGE, THE APPELLATE DIVISION
SHOULD, PURSUANT TO R[ULE] 2:10-5,
EXERCISE ORIGINAL JURSIDICTION AND
DECIDE THE THREE REMAINING ISSUES ON
THE FULLY DEVELOPED TRIAL RECORD SO
THAT DEFENDANT'S ALIMONY RELATED
CLAIMS, WHICH HAVE BEEN DRAGGING
THROUGH OUR COURT SYSTEM SINCE 2011
AND HAVE BEEN IN THE APPELLATE DIVISION
SINCE 2015, ARE BROUGHT TO A SWIFT
CONCLUSION
We do not disturb "'factual findings and legal conclusions of the trial
judge unless [we are] convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible evidence as to
offend the interests of justice.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998)
(citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). Legal
conclusions are reviewed de novo. Ricci v. Ricci, 448 N.J. Super. 546, 565 (App.
Div. 2017).
"It is beyond dispute that a trial judge has the responsibility to comply
with pronouncements of an appellate court." Tomaino v. Burman, 364 N.J.
A-3286-19T2
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Super. 224, 232 (App. Div. 2003) (citing Reinauer Realty Corp. v. Borough of
Paramus, 34 N.J. 406, 415 (1961)). Adherence to instructions on remand
"precisely as it is written" is the "peremptory duty" of a trial court. Id. at 233
(quoting Jersey City Redevelopment Agency v. Mack Props. Co. # 3, 280 N.J.
Super. 553, 562 (App. Div. 1995)). While trial judges have the "privilege" to
disagree, they are "bound to follow the rulings and orders of the Appellate
Division; they are not free to disregard them." Ibid. (citing Kosmin v. N.J. State
Parole Bd., 363 N.J. Super. 28, 40 (App. Div. 2003)). "Indeed, the very essence
of the appellate function is to direct conforming judicial action." Ibid. (citing
In re Plainfield-Union Water Co., 14 N.J. 296, 303 (1954)). Appellate court
instructions are "binding[,]" id. at 234, and the trial court "has no choice but to
follow those instructions irrespective of its private view as to their soundness."
Ibid.
With these principles in mind, we are constrained to reverse and remand
the alimony, Mallamo, and life insurance issues for reconsideration once again.
Although the trial judge determined the marital lifestyle numerically, he ignored
our instruction to begin with that figure and apportion it between the parties to
determine the alimony amount. Rather, his decision makes clear he continued
to use defendant's pendente lite budget and supplemented it with expenses from
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the marital budget, which was expressly what we instructed him not to do. Also,
the judge's reasoning ignored our concerns regarding the parties' ability to
equally share in the marital lifestyle as "the alimony award allotted defendant
disposable income of $36,792 and plaintiff $89,897 per month without
explanation." S.W., 462 N.J. Super. at 533 (emphasis added). Further, the judge
failed to address the Mallamo and life insurance issues.
Lastly, the trial judge erred when he issued the order following the second
remand in a summary fashion. It was apparent from our instructions that further
testimony, or at a minimum, further submissions and argument on all of the
remand issues would be necessary. Furthermore, the judge is clearly committed
to his decision. For these reasons, we direct that the matter be adjudicated by
the Presiding Judge of the Family Part. See R. 1:12-1(d) (stating a judge "shall
not sit in any matter if the judge . . . has given an opinion upon a matter in
question in the action"). We decline defendant's invitation to decide the matter
ourselves for reasons we previously expressed. S.W., 462 N.J. Super. at 536.
To summarize, the April 6, 2020 order was "inconsistent with the
competent, relevant and reasonably credible evidence [so] as to offend the
interests of justice." Cesare, 154 N.J. at 412. The order also constituted a
misapplication of the law.
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Reversed and remanded. We do not retain jurisdiction.
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