JOANN DALY VS. PETER DALY (FM-16-0073-15, PASSAIC COUNTY AND STATEWIDE) ( 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NOT FOR PUBLICATION WITHOUT THE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 NO. A-1825-18T4
JOANN DALY,
Plaintiff-Respondent,
v.
PETER DALY,
Defendant-Appellant.
________________________
Submitted October 5, 2020 – Decided December 1, 2020
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FM-16-0073-15.
Previte Nachlinger, PC, attorneys for appellant
(Michael J. Evans, on the briefs).
Kalman Harris Geist, attorney for respondent.
PER CURIAM
In this dissolution matter, defendant Peter Daly appeals from portions of
the Family Part's August 29, 2018 Final Judgment of Divorce (JOD) and its
December 7, 2018 order denying defendant's motion for reconsideration. On
appeal, defendant challenges the trial judge's alimony and child support award
to plaintiff Joann Daly, k/n/a Joann DePinto, as well as certain aspects of the
judge's decision relating to equitable distribution, and the judge's denial of his
motion for a Mallamo credit.1
We have considered defendant's contentions in light of the record and the
applicable principles of law. We affirm almost all of the provisions of the JOD,
substantially for the reasons stated by the trial judge in her comprehensive and
thoughtful oral decision placed on the record on August 28 and August 29,
2018.2 However, we are constrained to remand one aspect of the judgment as it
related to an asset that the judge determined was subject to equitable
distribution.
I.
The parties were married in 1994 and they had one child, a son who was
born in 1999. Throughout the marriage, defendant, a certified public accountant,
was the primary wage-earner earning an average of approximately $178,000 per
1
Mallamo v. Mallamo, 280 N.J. Super. 8, 12–17 (App. Div. 1995).
2
The judge's decision was placed on the record on those two days and it spanned
across approximately 140 transcript pages.
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year, including bonuses, as a finance manager for a major telecommunications
company. Plaintiff worked part-time as a claims examiner for an insurance
agency, earning approximately $80,000 annually. The parties also had unearned
income from investments.
During the marriage, the parties maintained an upper middle class
lifestyle, which allowed them to, among other things, own a single family home
and a rental property, exchange expensive gifts, take vacations outside of the
country, and save for their son's college education. Defendant was primarily
responsible for managing the family's financial matters and, beginning in
approximately 2000, defendant also began managing his father's finances and
received a number of financial gifts from his father intended to be advances on
his inheritance, some of which were to be shared with his two brothers.
In June 2014, the parties' relationship ended under circumstances that for
our purposes need not be discussed in this opinion. We only observe that those
circumstances traumatized the parties' son, led to his estrangement from
defendant as recommended by mental health professionals, and caused
defendant to leave the marital home.
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Plaintiff filed her complaint in 2014, which she amended in 2016.
Throughout the pendency of the matter, the parties engaged in contentious
litigation, much of which involved issues relating to their son.
As to their finances, in May 2015, the trial judge entered an order for
defendant to pay to plaintiff, pendente lite, $950 per week in unallocated support
for plaintiff and their son, which was nontaxable to plaintiff. That order was
amended on June 2, 2015, to allocate the weekly support payments to reflect
$250 in child support and $700 in alimony, nontaxable to plaintiff. As part of
his pendente lite support obligation, defendant was also required to maintain
medical and life insurance coverage for the family and contribute $350 per
month to their son's college savings account. In 2016, defendant's motion to
reduce his support obligation was denied, but the college savings contributions
requirement was suspended.
The trial was held over seven nonconsecutive days beginning in December
2017 and ending with the trial judge's entry of the JOD in August 2018. At trial,
the parties testified in detail as to their income, assets, debts, and overall
lifestyle. Defendant also testified about his handling of his father's finances and
his receipt of gifts from his father, who passed away in 2016 during the pendency
of this matter, and advances on his inheritance that he received during his
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father's lifetime. The father's Last Will was never offered into evidence to
support any of defendant's contentions about his father's estate, nor was it
admitted to probate despite the fact his father passed away. In addition,
defendant's brothers were never presented to corroborate his testimony about
their father's estate.
Following trial, the judge rendered her thorough oral decision and then
entered the comprehensive JOD incorporating her findings. In her decision,
after reciting the facts, the judge placed her detailed credibility findings on the
record and concluded that while plaintiff was more credible, with some
exceptions, both parties were generally "credible in their testimony" and
"sincere in their perceptions." However, the judge maintained she had
"lingering uncertainties about the myriad of financial transactions that
purportedly took place between [defendant] and his father," but for the most part
did not believe that defendant dissipated marital assets.
The judge found that "the parties [were not] equal partners in the
marriage," concluding that defendant was "the proverbial head of household . . .
who managed the family's finances." Then, as to each issue that she needed to
address regarding alimony, child support, college expenses, and equitable
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distribution, the judge engaged in an exhaustive review of each of the applicable
statutory factors before formulating her award.
As to alimony, after engaging in a detailed analysis of the parties' income
and expenses, and determining their marital lifestyle, the judge found that $6900
per month was needed to maintain the marital lifestyle, but pursuant to plaintiff's
request, the judge awarded plaintiff only $3125 per month open durational
alimony, tax deductible to defendant and taxable to plaintiff. Defendant was
also ordered to secure this obligation with life insurance in the amount of
$400,000. As to child support, the judge awarded $290 per week, and that it be
paid retroactive to September 1, 2017. She also ordered the parties to maintain
$50,000 in insurance coverage to secure this obligation.
Addressing the son's college expenses, the judge similarly went through a
detailed analysis of the child's needs and the factors set forth in Newburgh v.
Arrigo, 88 N.J. 529, 544 (1982), and determined how those expenses should be
paid by the parties. The judge found that the son had approximately $159,000
available for college through the parties' 529 accounts and approximately
$40,000 in savings bonds. She directed that the savings bonds be used towards
the son's contribution to his undergraduate costs at the rate of $5700 per year,
after applying a scholarship he received, with the balance of the bonds to be left
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available for graduate study. Of the remaining costs for undergraduate study,
plaintiff was to be responsible for 48% and defendant was responsible for 52%.
As to equitable distribution, the judge identified and addressed each of the
parties' assets and made findings as to whether they were part of the marital
estate or exempt from distribution. A significant portion of the judge's decision
addressed assets that defendant claimed were exempt from distribution.
In accordance with the parties' stipulation, the judge ordered that the
marital home and the rental property be sold immediately, with the proceeds to
be equally divided between the parties. She also distributed the marital portion
of all retirement accounts equally divided between the parties. As to certain
Hudson City Bank accounts, the judge found that defendant closed the account
and kept the proceeds of $2370, and therefore ordered him to reimburse plaintiff
$1185. Addressing a Valley National Bank account, the judge ordered
defendant to reimburse plaintiff $3500, which was one half its balance.
Among the other assets addressed were the proceeds of a $61,473.48
check from 2008 payable to the parties and purportedly endorsed by them from
an E-Trade account. Plaintiff denied that she ever saw the check before and
testified that neither of the signatures to the endorsement was hers. Defendant
remembered there had been an account but could not recall what happened to
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the proceeds. The judge found it unusual that although defendant was highly
detailed in his testimony about all other assets and financial matters generally ,
including the family's income and expenses, he could not recall what happened
to the substantial check. The judge ordered defendant to reimburse plaintiff
$30,736.74 as her share of the proceeds.
As to exempt assets, the judge found that funds at TD Bank had belonged
to defendant's father and were exempt from equitable distribution. Similarly,
she found a Bank of America account that ultimately became a Goldman Sachs
account contained inheritance advances, and was also exempt because defendant
"manifested an intention to keep this account separate and apart" and the small
deposits of marital funds that were made into it did not alter the character of this
account as an exempt account. However, she rejected defendant's contention
that stocks in a Computershare account containing AT&T, Vodafone, Verizon,
Teradata, and LSI Corp. stocks, were gifted from defendant's father because
there was no proof where the stock came from or any evidence corroborating
defendant's claim. The judge ordered that the stock account be divided equally
between the parties.
The judge also denied defendant's request for a Mallamo adjustment to
credit him for the value of the tax benefit he lost while paying pendente lite
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support. According to the judge, it was appropriate for plaintiff to take the tax
exemption for their son, as she was the parent of primary residence.
The judge also awarded credits to which she determined the parties were
entitled, placing her reasons as to each on the record. Credits in plaintiff's favor
related to one half the son's various living and educational expenses that plaintiff
paid without reimbursement from defendant, and for the amount plaintiff paid
to satisfy the mortgage that had encumbered the marital home. The judge
rejected plaintiff's claims for $18,350 for reimbursement of property taxes paid
and an alleged $9000 loan from her mother. The judge ordered defendant to
reimburse plaintiff $2250 of the $4500 paid to an expert and $850 for a refund
from their mediator.
Finally, the judge addressed the parties' claims for counsel fees and costs.
Here too the judge reviewed each of the factors under Rule 5:5-3(c) and
concluded that neither party acted in bad faith despite their claims to the contrary
and, based on their financial positions, neither party was entitled to an award of
fees or costs.
After the judge entered the JOD, defendant filed a motion for
reconsideration on September 18, 2018, seeking the judge to exempt the stock
account from equitable distribution, rescind the credit to plaintiff for the E-
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Trade check, and award the Mallamo credit. Moreover, defendant sought a
reconsideration of the judge's decision regarding credits for charges plaintiff
made to a credit card for counsel fees and a vacation. The judge denied the
motion on December 7, 2018, again placing her reasons on the record on that
date. In her explanation, she concluded defendant failed to meet his burden on
reconsideration, making numerous references to the evidence adduced at trial,
or that which was never presented at trial, and to her specific findings as to each
issue that she made in her original decision. This appeal followed.
II.
A.
We begin our review by acknowledging it is limited. Thieme v. Aucoin-
Thieme, 227 N.J. 269, 282–83 (2016); Cesare v. Cesare, 154 N.J. 394, 411
(1998). We accord deference to Family Part judges due to their "special
jurisdiction and expertise" in family law matters. Cesare, 154 N.J. at 413. We
are bound by the judge's findings after a trial so long as they "are supported by
adequate, substantial, credible evidence." Id. at 411–12. We will not disturb
the factual findings and legal conclusions unless convinced they are "so
manifestly unsupported by or inconsistent" with the evidence presented. Id. at
412. However, challenges to legal conclusions, as well as a trial judge's
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interpretation of the law are subject to our de novo review. Est. of Hanges v.
Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010).
B.
With those guiding principles in mind, we first address defendant's
challenge to the trial judge's alimony determinations. According to defendant,
the judge failed to properly apply certain statutory factors under N.J.S.A. 2A:34-
23(b). Specifically, he alleges that the judge erred in determining: plaintiff's
actual need and the parties' ability to pay; the standard of living established in
the marriage and the likelihood that each party can maintain a reasonable
comparable standard of living; the parental responsibilities for the child; the
equitable distribution ordered; and the income available to either party through
investment of assets. We find these contentions to be without merit.
"A Family Part judge has broad discretion in setting an alimony award."
Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). However, "the exercise
of this discretion is not limitless[,]" and is "frame[d]" by the statutory factors
set forth in N.J.S.A. 2A:34-23(b). Steneken v. Steneken, 367 N.J. Super. 427,
434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005). We will not
disturb an alimony award if the trial judge's conclusions are consistent with the
law and not "manifestly unreasonable, arbitrary, or clearly contrary to reason or
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to other evidence, or the result of whim or caprice." Foust v. Glaser, 340 N.J.
Super. 312, 316 (App. Div. 2001). The question is whether the trial judge's
factual findings are supported by "adequate, substantial, credible evidence" in
the record and the judge's conclusions are in accordance with the governing
principles. Ibid. Furthermore,
[a] trial court's findings regarding alimony should not
be vacated unless the court clearly abused its discretion,
failed to consider all of the controlling legal principles,
made mistaken 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.
[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div.
1996).]
"[T]he goal of a proper alimony award is to assist the supported spouse in
achieving a lifestyle that is reasonably comparable to the one enjoyed while
living with the supporting spouse during the marriage." Crews v. Crews, 164
N.J. 11, 16 (2000). It is "critical" and "essential" to "[i]dentify[] the marital
standard of living at the time of the original divorce decree . . . regardless of
whether the original support award was entered as part of a consensual
agreement or of a contested divorce judgment." Id. at 25.
As already noted, in awarding alimony, the judge must consider the
thirteen factors enumerated in N.J.S.A. 2A:34-23(b), along with any other
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factors deemed relevant. Heinl, 287 N.J. Super. at 344. Under the statute, the
judge must articulate specific findings of fact and conclusions of law with
respect to the alimony award. N.J.S.A. 2A:34-23(b).
The statutory factors are:
(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
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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;
(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.
[Ibid.]
Here, the trial judge systematically and carefully addressed all of the
applicable factors. The judge considered the parties' CISs, their testimony about
lifestyle and financial matters, and all of the written evidence in finding that the
parties' lifestyle was "upper middle class." The totality of the circumstances, as
demonstrated by the record, supported this finding.
In determining plaintiff's need for spousal support, the trial judge rightly
considered the wide variety of evidence in the record, including her CIS.
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Plaintiff's trial testimony explained the purported bases for these amounts. The
judge "extrapolated" the parties' son's expenses from plaintiff's needs "since they
should not be included in plaintiff's post-divorce needs." The trial judge then
weighed this information against defendant's CIS and testimony.
Evidence in the record, which established recent spending for the family
as being approximately $12,420 per month reasonably supported the judge's
conclusion that the budget for plaintiff alone was $11,327 per month, or
$135,924 per year. The judge then appropriately fashioned an arrangement that
would provide plaintiff with the support she required: Subtracting plaintiff's
annual net salary from the total need left a shortage of $82,797 per year, or
roughly $6900 per month. But plaintiff only requested $37,500 per year, or
$3125 per month. The judge found that defendant was able to pay this amount,
and thus reasonably granted plaintiff's request.
Contrary to defendant's contention on appeal that the judge erred in
considering plaintiff's prospective housing cost, without recognizing that he too
would have a similar expense, the judge recognized that "both [plaintiff] and
[defendant] will have a housing expense that they did not have during the
pendency of this divorce" in light of the anticipated sale of the parties' mortgage -
free properties. The judge also considered defendant's testimony that he could
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rent a suitable one-bedroom apartment for $1800 per month, and only allowed
$2500 per month towards a new mortgage for plaintiff, which was less than her
testified need of $3200 per month for that purpose. Significantly, the judge did
not award the full amount that she calculated the plaintiff needed and limited
the alimony award to that which plaintiff requested.
Similarly, defendant's other contention that the judge erred by including
in plaintiff's expenses costs for the son despite his living away at college is
belied by the fact that the judge repeatedly acknowledged that she adjusted
plaintiff's award based on the son's living arrangement, explaining that she
"extrapolated" his costs from plaintiff's requested budget. And, defendant's
additional contention that the judge's opinion was "completely devoid" of any
analysis of defendant's ability to maintain a reasonably comparable standard of
living is equally without merit. The judge clearly was cognizant of defendant's
needs. Again, she acknowledged that both parties would incur new housing
expenses and specifically considered the assets available to defendant to use
following equitable distribution. When determining that defendant was able to
pay the $3125 monthly alimony award, she particularly focused on his income
of approximately $200,000 per year, which included both earned and unearned
income.
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Defendant also argues that his son did not require the parental care
contemplated by the statute because of his age. He argues that his son did not
need childcare or transportation in the same manner as a young child would.
However, the judge's decision clearly acknowledged the son's age and
recognized the corresponding costs associated with his age. The judge's
commentary throughout the opinion suggests that the award reflected her
recognition of the child's age and needs.
Finally, defendant also argues that the alimony ordered did not account
for the income produced by the stocks awarded in equitable distribution, and
that the alimony award was based on earned income only. But the judge
understood that the stocks would produce income, as such income was
referenced and attributed to defendant in the alimony analysis. The judge simply
stated that plaintiff did not have such assets or income available to her prior to
equitable distribution, not afterward. And, as already described, the judge
nonetheless awarded plaintiff less than half of her $6900 calculated need.
C.
Next, we address defendant's challenge to the trial judge's equitable
distribution of the parties' assets. The equitable distribution award is also left
to the discretion of the trial judge and will not be disturbed on appeal "as long
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as the trial [judge] could reasonably have reached [the] result from the evidence
presented, and the award is not distorted by legal or factual mistake." La Sala
v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000) (citing Perkins v. Perkins, 159
N.J. Super. 243, 247–48 (App. Div. 1978)).
Under equitable distribution, the statutory factors enumerated in N.J.S.A.
2A:34-23.1, "used in concert with the facts of each case," inform the otherwise
"broad discretion" accorded to the trial judge. Steneken, 367 N.J. Super. at 434–
35. As a result, "[w]here the issue on appeal concerns which assets are available
for distribution or the valuation of those assets, it is apparent that the standard
of review is whether the trial judge's findings are supported by adequate credible
evidence in the record." Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443–
44 (App. Div. 1978). And, relatedly, when the issue involves the manner in
which the trial court allocated the marital assets, the trial court's determination
is subject to an abuse of discretion standard. Id. at 444.
(i).
Defendant argues that the judge erred in her equitable distribution
determination by failing to accept his testimony as to the exempt assets and thus
erred in including the Computershare account containing the stocks allegedly
gifted from his father in equitable distribution. We disagree.
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N.J.S.A. 2A:34-23.1 provides the statutory factors to be considered in
determining equitable distribution. The goal of equitable distribution is a "fair
and just division of marital assets." Steneken, 183 N.J. at 299. In determining
the equitable distribution of marital assets, the trial judge applies a three-prong
analysis. Rothman v. Rothman, 65 N.J. 219, 232 (1974). The judge must
determine what assets are available for equitable distribution, value the
distributable assets, and allocate the assets to the parties. Ibid.Certain assets, including gifts and premarital assets, are exempt from
equitable distribution. Painter v. Painter, 65 N.J. 196, 214 (1974). Such gifts
may be included in equitable distribution where they are clearly commingled
with marital assets. Wadlow v. Wadlow, 200 N.J. Super. 372, 380–81 (App.
Div. 1985). The burden of establishing immunity of an asset from equitable
distribution rests with the party asserting immunity. Weiss v. Weiss, 226 N.J.
Super. 281, 291 (App. Div. 1988); Painter, 65 N.J. at 214.
Here, defendant bore the burden of proof to demonstrate that the stocks in
the Computershare account were gifted from his father and thus exempt from
equitable distribution. The only evidence of a gift at trial was defendant's
testimony. There was no corroborative evidence, which had been provided as
to the other assets allegedly gifted. The stock account statements did not reveal
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the origins of these assets. The trial judge reasonably found defendant's
testimony to lack credibility, particularly when compared to his detailed
testimony regarding other assets. For example, in contrast to the lack of
corroboration regarding the Computershare account, defendant provided
detailed information as to the TD Bank and Goldman Sachs accounts and
presented specific checks representing the deposit of funds into the cited
accounts, with credible explanations as to the source, such as rental income,
Medicare reimbursements, and annual gifts.
Nonetheless, defendant argues that the judge made "inconsistent
credibility findings" by accepting his testimony as to the other assets purportedly
gifted from his father, but not the Computershare stock account. However, the
evidence in the record supports the judge's conclusion because the TD Bank
account statements revealed deposits of checks payable to his father, as well as
Medicare reimbursements. And, as to the Goldman Sachs account, the record
revealed checks payable to defendant from his father with corresponding deposit
slips. No such evidence sufficiently established the origins of the
Computershare stock account, with the only real evidence as to its origins being
defendant's testimony that it was gifted to him around 2012. After deeming such
testimony to lack credibility, the judge reasonably concluded that defendant did
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not meet his burden of proof to show this account was exempt.
(ii).
Defendant also challenges the trial judge's distribution of the E-Trade
account that she found existed prior to the parties' separation . In distributing
that asset, the judge relied upon the copy of the check from 2008, to which the
judge gave minimal weight, and on defendant's testimony that the account
existed but that he could not recall what happened to the funds on deposit.
On appeal, defendant argues that the copy of the check for $61,473.49
from the account should not have been entered into evidence, and that the judge
erred in concluding that the value of this check should be included in equitable
distribution because there was no evidence that he dissipated this asset. We find
merit to his latter contention.
Dissipation of marital assets must be considered in equitable distribution.
N.J.S.A. 2A:34-23.1(i). Generally, the distributable marital estate will include
assets diverted by a spouse in contemplation of divorce. Vander Weert v.
Vander Weert, 304 N.J. Super. 339, 349 (App. Div. 1997). "Intentional
dissipation of marital assets by one spouse would constitute a 'fraud on [the]
marital rights'" of the other spouse. Kothari v. Kothari, 255 N.J. Super. 500,
510 (App. Div. 1992) (quoting Monte v. Monte, 212 N.J. Super. 557, 567–68
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(App. Div. 1986)). The party alleging dissipation bears the burden of proof.
See Monte, 212 N.J. Super. at 567–68 (discussing the burden of proof where a
husband incurred debt as a result of dissipation).
The concept of dissipation "is a plastic one, suited to fit the demands of
the individual case." Kothari, 255 N.J. Super. at 506. In determining whether
a spouse has dissipated marital assets, trial judges should consider the following
factors:
(1) the proximity of the expenditure to the parties'
separation;
(2) whether the expenditure was typical of
expenditures made by the parties prior to the
breakdown of the marriage;
(3) whether the expenditure benefitted the "joint"
marital enterprise or was for the benefit of one
spouse to the exclusion of the other, and
(4) the need for, and amount of, the expenditure.
[Id. at 507 (quoting Lee R. Russ, Annotation,
Spouse's Dissipation of Marital Assets Prior to
the Divorce as a Factor in Divorce Court's
Determination of Property Division, 41 A.L.R.
4th 416, 421 (1985)).]
"The question ultimately to be answered by a weighing of these
considerations is whether the assets were expended by one spouse with the intent
of diminishing the other spouse's share of the marital estate." Ibid.A-1825-18T4
22
Here, in her distribution of the E-Trade check proceeds, the trial judge did
not consider any of the Kothari factors, and instead awarded half of its value
simply because the account once existed and there was no evidence that the
proceeds were redeposited in marital accounts. The mere possible existence of
an asset ten years before trial, without further evidence of its ownership and
ultimate disposition, does not entitle plaintiff to a share of that account in
equitable distribution. Under these circumstances, we are constrained to remand
this issue to the trial judge for reconsideration under Kothari. By remanding,
we do not suggest an outcome.
D.
We turn our attention to defendant's argument that the judge erred in
failing to credit him under Mallamo for the overpayment of pendente lite
support. According to defendant, he was entitled to the credit because his
pendente lite support was not deductible by him as was his ultimate alimony
obligation. We find no merit to this contention.
To be sure, "pendente lite support orders are subject to modification prior
to entry of final judgment . . . ." Mallamo, 280 N.J. Super. at 12; see also Tannen
v. Tannen, 416 N.J. Super. 248, 284 (App. Div. 2010). These adjustments are
permitted in recognition of the temporary nature of pendente lite awards that are
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by their nature based upon limited information as compared to the information
adduced at a trial. See Mallamo, 280 N.J. Super. at 16. 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).
Here, although the trial judge initially denied an adjustment because
defendant did not request the tax deduction earlier, she fairly determined that a
Mallamo adjustment was not required because, contrary to defendant's assertion,
the initial pendente lite award was too low. That award called for $700 per week
in spousal support and $250 per week in child support. The judge's ultimate
award, as described above and supported by the competent evidence in the
record, was $3125 per month in alimony and $1160 per month in child support.
Thus, any alleged "windfall" was offset by the underpayment in pendente lite
support, which lasted for more than three years. On that basis, defendant was
not entitled to the adjustment. We discern no abuse in the judge's discretion in
this regard.
E.
(i).
Defendant next argues that the judge erred in using the child support
guidelines to calculate child support because the guidelines were inapplicable as
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the parties' son was residing at school. He also contends that the alimony award
reflected increased expenses for his son and thus the child support amount
should not have included such expenses and therefore was unsupported by the
record. We disagree.
Child support awards and modifications are left to the sound discretion of
the trial judge and we are limited to determining whether there was an abuse of
discretion. Innes v. Innes, 117 N.J. 496, 504 (1990); Raynor v. Raynor, 319 N.J.
Super. 591, 605 (App. Div. 1999). "The trial [judge] has substantial discretion
in making a child support award." Tannen, 416 N.J. Super. at 278. A child
support determination will not be set aside unless shown to be unreasonable,
unsupported by substantial evidence, or "'the result of whim or caprice.'" Ibid.(quoting Foust, 340 N.J. Super. at 315).
There was no dispute that the parties combined incomes exceed the
Guideline's ceiling. Rule 5:6A provides that the Guidelines "shall be applied in
an application to establish child support" and may only be modified for good
cause shown. Where the family income exceeds $187,200, "the court shall
apply the guidelines up to $187,200 and supplement the guidelines-based award
with a discretionary amount based on the remaining family income" together
with the factors specified in N.J.S.A. 2A:34-23. Child Support Guidelines,
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Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A,
www.gannlaw.com (2017). See also Isaacson v. Isaacson, 348 N.J. Super. 560,
581 (App. Div. 2002) ("The maximum amount provided for in the guidelines
should be 'supplemented' by an additional award determined through application
of the statutory factors set forth in N.J.S.A. 2A:34-23(a).").
"When 'faced with the question of setting child support for college
students living away from home,' however, the guidelines are inapplicable[,] and
the court must determine support based on the factors set forth in N.J.S.A.
2A:34-23(a). . . . Reliance exclusively upon the guidelines in these situations
constitutes reversible error." Avelino-Catabran v. Catabran, 445 N.J. Super.
574, 595–96 (App. Div. 2016) (citations omitted) (emphasis added) (quoting
Jacoby v. Jacoby, 427 N.J. Super. 109, 113 (App. Div. 2012)).
Under N.J.S.A. 2A:34-23(a), in determining the amount to be paid by a
parent for support of the child and the period during which the duty of support
is owed, a trial judge should consider the following factors:
(1) Needs of the child;
(2) Standard of living and economic circumstances of
each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including
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educational background, training, employment skills,
work experience, custodial responsibility for children
including the cost of providing childcare and the length
of time and cost of each parent to obtain training or
experience for appropriate employment;
(5) Need and capacity of the child for education,
including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered
support of others;
(9) Reasonable debts and liabilities of each child and
parent; and
(10) Any other factors the court may deem relevant.
[N.J.S.A. 2A:34-23(a).]
Here, as the trial judge recognized, "in such cases as this where the child
is living away at college and 18 years of age the guidelines do not strictly apply
and the court must, also, consider the factors enumerated in N.J.S.A. 2A:34 -
23(a)." The judge then went on to consider the statutory factors and calculated
the child's needs during his time away from school as well as the fixed costs that
continue even when he was not at home. The trial judge reduced the child
support amount to reflect the time the son spent living away at college using
fixed and variable expenses of the household and the child, and properly
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supplemented that award for additional expenses such as gasoline for the child's
car, car insurance, and the child's cell phone. Moreover, as already discussed,
the judge reduced alimony which reflected the son's living situation and did not
award the full amount of alimony plaintiff required. In doing so, the judge did
not abuse her discretion as her decision was supported by the evidence and
consistent with the controlling legal principles.
(ii).
Defendant also argues that the trial judge erred in not applying all of the
child's savings bonds to his undergraduate costs but instead allocated some to
his anticipated graduate school expenses as well. Specifically, he alleges that
the judge's determination to withhold part of the bonds in the event the son
attends graduate school violates N.J.S.A. 2A:17-56.67, and that the judge erred
in speculating that the child would actually attend graduate school. He contends
that the statute does not extend the obligation to fund educational programs
beyond college. We disagree.
"In appropriate circumstances, parental responsibility includes the duty to
assure children of a college and even of a postgraduate education," Newburgh,
88 N.J. at 544, even though the child would otherwise be emancipated under
N.J.S.A. 2A:17-56.67. A trial judge determining whether a parent should
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contribute to a child's higher education is required to consider the twelve factors
set forth in Newburgh, which "the Legislature essentially approved . . . when
amending the support statute, N.J.S.A. 2A:34-23(a)." Gac v. Gac, 186 N.J. 535,
543 (2006).
Here, in applying the Newburgh factors while rendering her decision, the
trial judge observed that the parties acknowledged their son's plan to complete
undergraduate studies and then pursue a graduate program in physical therapy.
Under the fifth Newburgh factor, 88 N.J. at 545, the relationship of the requested
contribution to the kind of school or course of study sought by the child, the
judge found that the son planned to pursue a seven-year program in physical
therapy, which could necessitate the use of his savings bonds for post graduate
study. In her analysis of factor eight under Newburgh, the financial resources
of the child, ibid., the judge found that the son had approximately $159,000
available for college, which reflected bank accounts and approximately $40,000
worth of savings bonds. The judge ruled that the savings bonds would be used
towards the son's contribution to college costs in the amount of $5700 per year,
with the balance to be left available for his anticipated graduate study.
As to Newburgh factor twelve, the relationship of the education requested
with prior training and the long range goals of the child, ibid., the judge found
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that given the son's current major in biology, his aspirations to pursue graduate
study in physical therapy was reasonable. Based on these factors, the judge
concluded that the parties' savings were "clearly intended to cover the son's post-
secondary education" and the savings bonds in his name would be used as his
own contribution to the cost of college and graduate school.
Here, the trial judge crafted a sensible plan for the son's education based
upon the evidence presented at the trial. Under that plan, the child's savings
bonds would be available for his entire education, rather than just undergraduate
study. Clearly, the judge could have ordered, as defendant suggests, that all of
the bonds be used for undergraduate studies, but then the parties would have to
make up for those costs they would have covered for his anticipated graduate
education.
Under these circumstances, we again do not discern any abuse of the
judge's discretion. We have no cause to disturb her thoughtful plan for the
parties' child's education.
F.
We conclude that defendant's remaining arguments that we have not
otherwise addressed, including that the trial judge's erred by refusing to
reconsider her decision, except as to the E-Trade check, and about charges
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plaintiff allegedly made to a certain credit card, are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part; vacated and remanded in part for further proceedings
consistent with our opinion. We do not retain jurisdiction.
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