K.C. VS. D.C. (FM-13-1782-11, MONMOUTH COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3532-14T3
K.C.,
Plaintiff-Respondent,
v.
D.C.,
Defendant-Appellant.
____________________________________
Argued April 25, 2017 – Decided September 29, 2017
Before Judges Espinosa, Suter and Grall.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FM-13-1782-11.
Randy J. Perlmutter argued the cause for
appellant (Kantrowitz, Goldhamer & Graifman,
PC, attorneys; Mr. Perlmutter and William T.
Schiffman, on the brief).
Megan S. Murray argued the cause for
respondent (Law Offices of Paone, Zaleski,
Brown & Murray, attorneys; Ms. Murray, of
counsel and on the brief).
PER CURIAM
Defendant appeals from a judgment entered following a trial
in this matrimonial matter, challenging the alimony award, aspects
of the trial court's decision on equitable distribution, and the
court's appointment of a mediator and allocation of his fees. We
affirm in part and reverse in part.
I.
The parties were married in 1996; the complaint for divorce
was filed fifteen years later in 2011. Plaintiff, a college
graduate, left the workforce shortly before the first of their two
children was born in 1997. She did not work outside the home
thereafter. Defendant was employed as a consultant and reported
the following income on his tax returns for the year the complaint
was filed and the three previous years: $521,526 (2008), $575,151
(2009), $608,932 (2010) and $371,927 (2011).
II.
The "factual findings and legal conclusions of [a] trial
judge" in a non-jury case should not be disturbed unless they are
"so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the
interests of justice." Rova Farms Resort, Inc. v. Investors Ins.
Co., 65 N.J. 474, 484 (1974). Deference to a court's factual
findings "is especially appropriate when the evidence is largely
testimonial and involves questions of credibility." Cesare v.
2 A-3532-14T3
Cesare, 154 N.J. 394, 412 (1998). In particular, the courts have
"emphasize[d] the narrow contours of appellate review pertaining
to the division of marital assets," and have "'rel[ied]
heavily . . . on the discretion of the trial judge in making these
delicate and difficult judgments.'" Wadlow v. Wadlow, 200 N.J.
Super. 372, 377 (App. Div. 1985) (quoting Gibbons v. Gibbons, 174
N.J. Super. 107, 114 (App. Div. 1980)).
III.
In Point I, defendant argues the trial court erred in awarding
plaintiff one-half of a "one-time celebratory grant" of 14,492
restricted share units (RSUs) awarded to him on January 1, 2011,
four months before the complaint for divorce was filed.
Citing Elkin v. Sabo, 310 N.J. Super. 462, 472-73 (App. Div.
1998), defendant argues the record is unclear as to whether the
RSUs were granted as a reward for past performance or as an
incentive for future performance and that the matter must be
remanded for a further determination by the court. We disagree.
In 2010, defendant received a promotion from his employer,
Accenture LLP, that included a higher salary and a grant of 14,492
RSUs, effective January 1, 2011, pursuant to a Standard Form of
Celebratory Restricted Share Unit Agreement for fiscal year 2011
that vested pursuant to a schedule over the period from 2011 to
2017.
3 A-3532-14T3
"Property 'clearly qualifies for distribution' when it is
'attributable to the expenditure of effort by either spouse' during
marriage." Pascale v. Pascale, 140 N.J. 583, 609 (1995) (quoting
Painter v. Painter, 65 N.J. 196, 214 (1974)). Even when property
is acquired after a complaint for divorce is filed, it is
"normally" subject to equitable distribution if it is "a reward
for or a result of efforts expended during the marriage." Id. at
612. "The majority of jurisdictions, like New Jersey, hold that
stock options acquired during marriage are subject to equitable
distribution." Heller-Loren v. Apuzzio, 371 N.J. Super. 518, 530
(App. Div. 2004). As with any other property at issue in a divorce
proceeding, the dispositive question is whether the stock options
were granted "in consideration for actions undertaken during the
marriage." Ibid. The burden of establishing the immunity of any
given property from equitable distribution lies with the party
seeking exclusion. Pascale, supra, 140 N.J. at 609.
Defendant, who was self-represented at trial, relied upon his
own testimony to establish that the RSUs were immune from equitable
distribution. He argued the RSUs were granted to him as a
guarantee of his future good performance, and therefore, any RSUs
that vested after divorce proceedings began were not marital
property subject to equitable distribution. The court allowed
4 A-3532-14T3
defendant additional time after trial to provide evidence in
support of his theory, but he did not do so.
The trial court found the RSUs awarded in January 2011 were
"subject to equitable distribution and shall be equally divided,"
observing defendant provided no evidence to support his theory
that the award was for future performance. The court noted the
RSUs may not be transferable outright to Wife as a non-employee
of Accenture, and therefore ordered defendant to establish a trust
to transfer the value of the RSUs as they vest. Specifically, the
court stated that defendant
shall monetize [Wife's] 50% interest in the
vesting RSUs within fourteen (14) days of a
vesting event. [Defendant] shall
automatically sell [Wife's] shares and pay
100% of the proceeds to [Wife], less any
amount withheld by [Defendant's] employer for
tax purposes.
Not only did defendant fail to support his characterization
of the RSUs with any documentary evidence, the evidence before the
court supported the conclusion that the RSUs were awarded for
performance during the marriage.
Accenture's compensation overview states that RSU grants are
awarded in recognition of high-ranking employees' efforts, and
does not mention their use as a guarantee for future performance.
In a letter to plaintiff's attorney, Accenture stated that RSU
grants of the type at issue are awarded annually "based on level
5 A-3532-14T3
of responsibility and individual performance rating" at the time
of the grant. To be eligible for such a grant, the employee must
be rated "'Above' or higher." The stated purpose of the Accenture
PLC 2010 Share Incentive Plan is
to aid the Company . . . in recruiting,
retaining and rewarding key employees . . . of
outstanding ability and to motivate such
employees . . . to exert their best
efforts . . . by providing incentives through
the granting of Awards. The Company expects
that it will benefit from the added interest
which such key employees . . . will have in
the welfare of the Company as a result of their
proprietary interest in the Company.
Aside from the generalized aspiration that "key employees"
who are granted RSUs will have an enhanced interest in the welfare
of Accenture, there is no requirement that the employee meet any
performance goals before a batch of RSUs will vest pursuant to the
schedule. The only condition for vesting is "continued
employment." Moreover, in the event the employee is no longer
employed due to death or disability, all of the RSUs granted,
whether vested or not, are transferred to the employee or his
estate. Obviously, the transfer of RSUs following death or
disability would not be based on future performance.
6 A-3532-14T3
In sum, all the documentary evidence in the record1 states
that such promotional grants are awarded based on performance
ratings at the time of the award, in recognition of employees'
efforts, and no document provided to the court states defendant
must meet any given performance goal to trigger the vesting of
RSUs that are part of the grant. Contrary to defendant's argument,
the record was clear, and fully supported the trial court's
determination that the RSUs were subject to equitable
distribution.
IV.
The other equitable distribution decision challenged by
defendant concerns a ski home the parties purchased in 2004, with
defendant's brother and sister-in-law, John and Ruth Ann Cowles
(the Windham House). All four family members were listed on the
home's deed as tenants in common. Plaintiff testified all four
intended to be equal owners. Defendant argued that John and Ruth
Ann owned a greater share in the property than plaintiff and
defendant, and therefore, plaintiff should not receive a twenty-
five percent share as part of the equitable distribution. No
1
The court-appointed economic expert, also testified that based
upon the documentation he had reviewed, the RSUs were "awarded for
service provided".
7 A-3532-14T3
document was produced to show that ownership was other than equal
among the four owners.
The trial court awarded a one-fourth share of the value of
the Windham House to plaintiff as equitable distribution.
Defendant argues the trial court erred in doing so and in
improperly ignoring evidence that the purchase was a joint venture.
He contends the matter should be remanded to the trial court for
proper consideration of the issue. We disagree.
First of all, we note that defendant did not argue at trial
that the house was a "joint venture." He argued simply that the
two families owned it on an unequal basis and put differing amounts
of money into its maintenance.
Under New York law, "[a] joint-venture agreement is generally
defined as a special combination of two or more persons wherein
some specific venture profit is jointly sought without any actual
partnership or corporate design." Ackerman v. Landes, 112 A.D.2d
1081, 1082 (N.Y. App. Div. 2d Dep't 1985) (citation and internal
quotation marks omitted). The "essential elements" of such an
undertaking are:
an agreement manifesting the intent of the
parties to be associated as joint venturers,
a contribution by the coventurers to the joint
undertaking (i.e., a combination of property,
financial resources, effort, skill or
knowledge), some degree of joint
proprietorship and control over the
8 A-3532-14T3
enterprise, and a provision for the sharing
of profits and losses.
[Ibid.]
No agreement was presented that satisfied these elements.
Further, there does not appear to have been any "sharing of profits
and losses" related to the house, or in fact any "profits" at all
related to its ownership, since it was apparently used by the
families solely as a personal ski house and sometimes a place to
entertain guests.
Moreover, as described by defendant and his brother, their
agreement entailed ongoing contributions to the expenses of the
house, that would neither be performed within one year nor
completed before the end of a lifetime. As a result, the agreement
was void under New York law unless in writing. N.Y. Gen. Oblig.
Law § 5-701 (Consol. 2017).
Defendant contends there was ample testimony to prove the
existence of a joint venture. First, he cited the undisputed fact
that John and Ruth Ann contributed $50,000 more than the parties
to the $350,000 purchase of the house. Both defendant and his
brother testified there was an annual accounting of expenses that
demonstrated John and Ruth Ann continued to contribute more to
9 A-3532-14T3
expenses.2 However, this document could not be authenticated and
was never produced by defendant in response to discovery requests.
John testified the parties owned a smaller percentage in the
home and that defendant and their father also owned a share in the
house based on "sweat equity." He acknowledged, however, that the
deed reflected equal ownership and would control in the event of
the death of any of the four owners. He also conceded the parties
had never created any written agreement stating the way in which
the four owners paid for the house's expenses would result in
unequal ownership interests.
What was entirely lacking from the testimony was any
suggestion the parties intended to form an "enterprise" of any
kind or that there was a "provision for the sharing of profits and
losses." Ackerman, supra, 112 A.D.2d at 1082. The house was
purchased and used as a private family ski vacation home.
In its decision, the trial court noted the deed stated the
property was purchased by defendant, plaintiff, John and Ruth-Ann
Cowles as "tenants in common," and that defendant had "provided
no evidence that the parties were anything but tenants in common
with his brother and sister-in-law." It found that under New York
2
Plaintiff disputed this, testifying that bills for the Windham
House were paid equally by the parties, and John and Ruth Ann had
an annual expense spreadsheet prepared to insure their
contributions to expenses were equal.
10 A-3532-14T3
law, which governed the issue, a tenancy in common involves an
interest in property held by two or more persons in which no right
of survivorship exists. The court concluded defendant and
plaintiff together owned a fifty percent interest in the Windham
House. It ordered defendant to pay plaintiff $113,750 representing
her half of that fifty-percent share,3 and ordered plaintiff to
transfer her interest to defendant in exchange.
The court found, based upon the evidence before it, namely
the deed and the testimony given by plaintiff and John Cowles,
that the Windham House was owned equally by all four family
members. That the court apparently found plaintiff's testimony
and the text of the deed more credible than defendant's brother,
and thus gave those sources more weight in its decision, does not
render its decision erroneous. We concur with the trial court's
application of New York law to the facts here. As to defendant's
argument that the trial court erred in excluding evidence that he
now claims supported his characterization of the ownership as a
joint venture, we note that our review of evidentiary rulings is
governed by an abuse of discretion standard. See, State v. E.B.,
348 N.J. Super. 336, 344-345 (App. Div. 2002). We discern no
abuse of discretion in the court's ruling.
3
The parties stipulated that the value of the Windham house is
$455,000.
11 A-3532-14T3
V.
Defendant claims the trial court made multiple errors in
making its determination regarding alimony. We find merit in two
of his arguments, requiring a remand.
"A Family Part judge has broad discretion in setting an
alimony award." Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div.
2012). An appellate court will "give deference to a trial judge's
findings as to issues of alimony, if those findings are supported
by substantial credible evidence in the record as a whole." Reid
v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154
N.J. 608 (1998).
A.
In arriving at the alimony award, the court first considered
the statutory factors set forth in N.J.S.A. 2A:34-23(b).
The court found plaintiff was forty-four years old, had a
college degree but had not worked outside the home for fourteen
years, rejecting defendant's contention to the contrary. The
court imputed annual income to her of $35,000 and an additional
$40,000 in investment income. The court found defendant earned
over $400,000 in 2013 and would earn at least as much in 2014.
As to the standard of living in the marriage, the court found:
The parties had a joint marital lifestyle that
required them to spend about $19,000 on
expenses and save about $9,000, for a total
12 A-3532-14T3
of $28,000 a month. It is unlikely that they
will both be able to maintain the joint
marital lifestyle. To do so, they would need
combined net income of about $672,000 a year,
or in excess of $800,000 gross a year.
While defendant could be expected to earn approximately $400,000,
plaintiff's earning capacity is far more limited. Moreover,
plaintiff did not express any "desire to be self-sufficient or
contribute to her support in any meaningful way."
The trial court found plaintiff was and remained the primary
caretaker for the children, making "significant non-financial
contributions" but not working outside the home after their first
child was born. The court also noted the children were now
teenagers attending school full-time, posing no impediment to
plaintiff obtaining full-time employment.
As to equitable distribution and income from other assets,
the trial court observed the parties would share property valued
in excess of $3.5 million. The court estimated that approximately
$2 million of that amount represented the value of RSUs, bank and
brokerage accounts.
The trial court concluded the parties "will need to reduce
expenses and cannot each afford to live a lifestyle that would
require them to spend $19,000 and save $9,000 a month." Alimony
was awarded as follows:
13 A-3532-14T3
Alimony shall be paid at an annual rate of
$100,000, based on Plaintiff's imputed income
of $75,000 ($35,000 income and $40,000 in
investment income) and Defendant's income of
$352,000 (base salary of $312,000 a year plus
$40,000 imputed for investment income). In
addition, Defendant shall pay "additional
alimony" of 33% of his total compensation from
all sources, over and above his base salary.
Defendant shall not be required to pay alimony
on income in excess [of] $672,000 (after-tax)
as this is the amount that would permit both
parties to maintain the joint marital
lifestyle. No evidence was presented
regarding any rental income received by
Defendant.
Defendant was required to provide plaintiff with
documentation of his income by February 1 of each year, "including
copies of his previous year's W-2s, year-end pay stubs, and any
documentation reflecting any compensation received from any source
received during the prior calendar year."
B.
Defendant challenges the court's order that he pay additional
alimony of "33% of his total compensation from all sources, over
and above his base salary." (emphasis added). He asserts the RSUs
granted to him in 2011, batches of which vest each year, should
not be considered "income" for alimony purposes because half of
the RSUs must be transferred to plaintiff upon vesting as part of
equitable distribution. He cites Innes v. Innes, 117 N.J. 496
(1989), for the proposition that this is "double-dipping."
14 A-3532-14T3
Throughout the proceedings, plaintiff contended any RSUs
granted during the marriage were subject to equitable
distribution, but that RSUs granted after the marriage would be
"considered as income to defendant as they vest" for purposes of
calculating alimony. In summation, plaintiff's counsel presented
her request for alimony as follows:
Moreover, assuming the Wife receives equitable
distribution of all RSUs granted to the
Husband prior to the date of Complaint (May
6, 2011), the Wife should not be entitled to
share in, for alimony purposes, any equity
compensation earned by the Husband as the
result of the vesting of these pre-Complaint
RSUs. Rather, the Wife should receive as and
for alimony 33% gross of any post-Complaint
equity compensation earned by the Husband as
the result of the vesting of RSUs received by
the Husband after May 6, 2011.
The court did not specifically state in its opinion that the
value of the RSUs that vest each year will be excluded from
consideration when calculating defendant's "compensation from all
sources." However, the order does formalize the distinction
between pre- and post-divorce grants of RSUs by stating the former
must be equally divided between the parties as they vest while the
latter will be retained by defendant. A reasonable interpretation
of the trial court's decision, which adopts much of plaintiff's
proposal and language concerning alimony, is that the court ruled
that the RSUs granted in 2011 were marital property subject to
15 A-3532-14T3
equitable distribution, and only the RSUs awarded after the
marriage will be considered income for alimony purposes. In light
of the fact that defendant's alimony obligation continues for
twelve more years, we conclude that this issue is best remanded
to the trial court for clarification, as discussed further
regarding the next issue raised.
C.
Defendant also challenges the methodology the trial court
applied to the additional alimony award. Without citing any
binding precedent, he contends the percentage formula used by the
court is not "permissible."4 We discern no error in the use of a
percentage to calculate additional alimony.
However, as we have noted, the term "all sources" would
benefit from clarification. In addition, we find merit in
defendant's challenge to the cap used by the court for additional
alimony. The trial court defined the cap as follows: "Defendant
shall not be required to pay alimony on income in excess [of]
$672,000 (after-tax) as this is the amount that would permit both
parties to maintain the joint marital lifestyle." The only other
4
We note the unpublished opinion relied upon by defendant is
distinguishable as it concerned the modification of support
obligations without making "crucial factual determinations." As
we have noted, the trial court made appropriate factual findings
pursuant to N.J.S.A. 2A:34-23(b) as part of its alimony award
determination.
16 A-3532-14T3
reference to $672,000 in the trial court's opinion is contained
in its earlier assessment of the amount the parties needed to
finance their joint marital lifestyle and the court's
extrapolation that the expenses would be exactly double to maintain
that lifestyle separately. The court noted this would require
"combined net income of about $672,000" and a gross income in
excess of $800,000.
As defendant asserts, he has never earned more than $600,000
pre-tax in any given year. In effect, then, the cap set by the
trial court is no cap at all and is not tethered to a determination
of what is needed to maintain a lifestyle enjoyed during the
marriage, giving due consideration to defendant's earning
capacity. Accordingly, we remand to the trial court to define
what is meant by "all sources" subject to the additional alimony
calculation, to establish the cap for income subject to additional
alimony calculation, to explain the basis for the 33% formula and
to set forth reasons for those decisions. Our remand is not
intended to preclude the judge from considering whether a formula
for an automatic adjustment is a preferred approach over leaving
any such adjustment an open question subject to review pursuant
to Lepis v. Lepis, 83 N.J. 139 (1980) and Crews v. Crews, 164 N.J.
11 (2000) on a showing of changed circumstances.
17 A-3532-14T3
D.
Defendant's remaining arguments regarding alimony lack merit.
In challenging the trial court's finding regarding his
income, defendant argues he does not receive all income from his
vesting shares because he does not cash them in. This argument
is refuted by his own concession that the RSUs appear on his W-2
tax forms as income in the years in which they vest. He also
contends the court should have used an average of several years
to determine his income because he was no longer eligible to
receive the additional compensation that led to his earning as
much as $608,932 in 2010. This argument fails because the trial
court relied upon defendant's known earnings at the time of the
trial.
Defendant also argues the court erred in ignoring the fact
the parties saved significant money because he intended to retire
at fifty years of age and in failing to take the amount of equitable
distribution into consideration in determining the amount of
alimony. These challenges lack merit. The court's statement of
reasons makes repeated references to the equitable distribution
award, imputes income to plaintiff based upon anticipated income
from that award, and acknowledges that the parties saved
aggressively as part of their lifestyle.
18 A-3532-14T3
Defendant's challenge to the duration of the alimony award
lacks sufficient merit to warrant discussion, R. 2:11-3(e)(1)(E),
beyond the following brief comments. Defendant contends the trial
court failed to take into account the pendente lite support he
paid to plaintiff pursuant to a consent order. N.J.S.A. 2A:34-23
does not require the length of an alimony period to be reduced by
the number of years the paying party has paid pendente lite
support, and instead states only that the payment of pendente lite
support must be "consider[ed]" when making decisions as to alimony.
The trial court did so here, making note of the pendent lite
support when analyzing the N.J.S.A. 2A:34-23(b) alimony factors,
and also addressing it directly in a section concerning plaintiff's
request for additional support. Additionally, the court did not
base the period of the open durational alimony solely upon the
duration of the parties' marriage. The court stated the alimony
award was appropriate "based upon the statutory factors, including
the length of the marriage, Plaintiff's clear economic dependency,
Plaintiff's responsibility of caring for the children and
diminished earning capacity because of her role as the caretaker
of the family."
VI.
After the trial concluded, the court found the parties failed
to provide adequate information regarding defendant's compensation
19 A-3532-14T3
and appointed an accounting firm to obtain additional information
on that issue and to perform a lifestyle analysis. Robert Brown,
CPA, prepared two expert reports pursuant to this appointment.
After the expert appointment, the parties met with him at the
court's suggestion in an unsuccessful attempt at mediation.
Defendant did not object to Brown's appointment as expert or
service as mediator and, in fact, requested that Brown be recalled
as a witness when additional testimony was taken after the trial
court re-opened the case.
Defendant now argues the trial court erred in making the
expert appointment after the trial had concluded and that because
Brown had attempted to mediate the matter, he had a conflict that
precluded him testifying as an expert. This argument is wholly
lacking in merit and, because defendant presents it for the first
time on appeal, we need not consider it. US Bank Nat. Ass'n v.
Guillaume, 209 N.J. 449, 483 (2012).
VII.
In Point IV, defendant argues the trial court erred in
ordering him to pay the full amount of the fees for a second
parenting coordinator and for Brown's expert fees.
He argues that burdening him with the entire responsibility
for the fees of the second parenting coordinator was inconsistent
with the court's earlier decision to allocate the fees of the
20 A-3532-14T3
first parenting coordinator. He also contends the reports prepared
by Brown were "a complete waste of time and money" and complains
the court failed to allocate his fees. Defendant contends that
the failure to allocate fees constituted a gross abuse of
discretion.
As a preliminary matter, we reject defendant's contention
that the trial court's appointment of Brown was improper. The
court made it clear that an economic expert was necessary due to
defendant's lack of preparation, failure to produce evidence in
support of his claims, and series of inconsistent case information
statements. Under Rule 5:3-3(c), "[w]henever the court concludes
that disposition of an economic issue will be assisted by expert
opinion," it may appoint an expert. Such an expert "may be
selected by the mutual agreement of the parties or independently
by the court." R. 5:3-3(d). When an economic expert is appointed,
Rule 5:3-3(i) provides that "the court may direct who shall pay
the cost of such examination, appraisal, or report."
The court also had the authority to determine how the expert's
fees would be paid. Under N.J.S.A. 2A:24-23,
The court may order one party to pay a retainer
on behalf of the other for expert and legal
services when the respective financial
circumstances of the parties make the award
reasonable and just. In considering an
application, the court shall review the
financial capacity of each party to conduct
21 A-3532-14T3
the litigation and the criteria for award of
counsel fees that are then pertinent as set
forth by court rule.
Further, under Rule 5:3-5(c), in determining a fee award the
court should consider
(1) the financial circumstances of the
parties; (2) the ability of the parties to pay
their own fees or to contribute to the fees
of the other party; (3) the reasonableness and
good faith of the positions advanced by the
parties both during and prior to trial; (4)
the extent of the fees incurred by both
parties; (5) any fees previously awarded; (6)
the amount of fees previously paid to counsel
by each party; (7) the results obtained; (8)
the degree to which fees were incurred to
enforce existing orders or to compel
discovery; and (9) any other factor bearing
on the fairness of an award.
Here, the parties stipulated that McGoughran should be a
parenting coordinator in the case. During the proceedings,
plaintiff took the position that defendant should pay all fees for
McGoughran, because the coordinator did not accept American
Express cards and so she could not pay him using the card defendant
provided for pendente lite support. The court ordered that
defendant pay McGoughran's fees "subject to reallocation at the
end of this case." In a later stipulation, the parties agreed,
"Judge shall determine allocation of fees." In its final order
of February 13, 2015, the court stated that defendant shall pay
all outstanding fees owed to McGoughran, totally $3,648.05.
22 A-3532-14T3
As to Brown, the court noted that defendant could not explain
his compensation structure at Accenture at his deposition and had
suggested "accountants should be retained to figure it out." The
court later reiterated that the reason for its appointment of
Brown was that defendant had "presented proofs that were
unintelligible" on the subjects of the marital lifestyle and his
income.
The court noted defendant submitted "wildly disparate Case
Information Statements" in an effort to support his "utter
insistence that the parties lived a modest lifestyle." The court
found a review of defendant's case information statements
"illustrate Defendant's total lack of credibility regarding his
testimony on the joint marital lifestyle." For this reason, the
court appointed Brown to perform a lifestyle analysis. Ultimately,
the court found defendant "did not refute the overwhelming majority
of the information included in Mr. Brown's report."
In general, an "award of counsel [or expert] fees in a
matrimonial case rests in the sound discretion of the trial judge."
Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). Thus,
review of a determination as to the allocation of such fees is
"guided by the abuse of discretion standard." Platt v. Platt, 384
N.J. Super. 418, 429 (App. Div. 2006). The court did not make any
explicit findings as to why it allocated all of McGoughran's and
23 A-3532-14T3
Brown's fees to defendant in its final decision. However, the
economic disparity between the parties that led the court to impose
all of McGoughran's fees on defendant at the outset has continued
post-divorce. In addition, it is evident the assistance of the
economic expert was made necessary by defendant's failure to submit
proofs to support his contentions regarding lifestyle, his
compensation and his characterization of the RSUs. Moreover,
defendant insisted that Brown should be recalled for a second day
of testimony, and then refused to participate in questioning him.
Under these circumstances, we are satisfied that the trial court's
decision to have defendant be responsible for all expert fees was
not an abuse of discretion.
VIII.
In light of its award of "open-durational alimony for
fourteen" years, the trial court required defendant to maintain
no less than $1.5 million in term life insurance on his life,
naming plaintiff as beneficiary, until February 28, 2029. The
trial court also imposed a separate life insurance requirement on
both parties that was tied to the children's emancipation. At the
time of judgment in February 2015, the parties' children were
eighteen and fourteen years old. The court ordered, "Based on the
child support award and the age of the minor children, both parties
shall maintain no less than $250,000 in life insurance on their
24 A-3532-14T3
respective life [sic] naming the children as equal beneficiaries
thereof, until the children are emancipated."
Defendant argues the court should have provided that he can
reduce his $1.5 million insurance obligation "designed to
initially cover his support obligations as those support
obligations reduce." In the alternative, he states the court
should have provided that if the policy amount exceeds the amount
of support secured at the time of his death, the excess should be
returned to his estate. Defendant cites Konczyk v. Konczyk, 367
N.J. Super. 512 (App. Div. 2004), to support his argument.
In his argument, defendant does not contend he asked for the
relief he now seeks on appeal. In the absence of a request, he
essentially asks this court to find the trial court erred in
failing to incorporate such a provision sua sponte. Konczyk does
not stand for that proposition. In Konczyk, the husband removed
his former wife as a beneficiary in violation of his alimony
obligation. We affirmed a trial court's decision that the
supported spouse was entitled to the amount of outstanding alimony
and not the full amount of the insurance policy the decedent was
required to maintain. Under the circumstances, we find no reason
to disturb the trial court's decision.
Affirmed in part, reversed and remanded in part. We do not
retain jurisdiction.
25 A-3532-14T3