Gregory C. Lund v. Caroline Lund ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2943-21
GREGORY C. LUND,
Plaintiff-Appellant/
Cross-Respondent,
v.
CAROLINE LUND,
Defendant-Respondent/
Cross-Appellant.
__________________________
Submitted January 23, 2024 – Decided February 14, 2024
Before Judges Whipple, Mayer and Enright.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-0717-20.
August J. Landi, Jr., attorney for appellant/cross-
respondent.
Central Jersey Legal Services, Inc., attorneys for
respondent/cross-appellant (Marysol Rosado Thomas,
on the brief).
PER CURIAM
Plaintiff Gregory C. Lund appeals from portions of an April 12, 2022 Dual
Judgment of Divorce (DJOD). Defendant Caroline Lund cross-appeals from the
judge's failure to address her request to enforce a November 8, 2019 pendente
lite order compelling plaintiff's payment of transportation expenses. We affirm
as to the issues raised in plaintiff's appeal. We remand to the Family Part on the
cross-appeal to address defendant's request for reimbursement of pendente lite
transportation expenses and the award of a Mallamo1 credit to plaintiff for
expenses which plaintiff admitted he failed to pay.
We recite the facts from the four days of trial testimony. Plaintiff and
defendant married in 1996. The parties have two adult children: Matthew and
Tyler, born in 1999. Defendant and the now two adult children live in an
apartment with defendant's mother and defendant's sister. Based on his
disabilities, Matthew is unemancipated and receives Medicaid and Supplemental
Security Income (SSI) benefits. Defendant, except for three short-term positions
and $310 per month received from the government to care for her elderly mother,
has been unemployed since the birth of the children.
1
Mallamo v. Mallamo, 280 N.J. Super. 8, 11-12 (App. Div. 1995).
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In 2007, plaintiff began employment as a clinical engineering manager at
a hospital in Staten Island. Through his employment, plaintiff received an
employer-contributed cash balance account and an employer-contributed 403(b)
account.
The parties separated on November 9, 2012. After the separation, plaintiff
lived with friends and family until he purchased a mobile home in October 2020.
Plaintiff paid the family's expenses after the parties separated. Defendant lived
in the family apartment with the two children and cared for the children.
On September 19, 2019, plaintiff filed a complaint for divorce. He also
filed a motion for pendente lite support. Defendant cross-moved for pendente
lite support. In a November 8, 2019 order, the judge awarded pendente lite
support to defendant, including plaintiff's payment of defendant's transportation
expenses in the amount of $278 per month.
According to defendant, plaintiff failed to pay the transportation portion
of the pendente lite order from January through April, 2022.2 As a result of
plaintiff's non-payment of these expenses, defendant, in her March 16, 2022
written summation, requested the judge compel plaintiff's payment of
2
In a March 23, 2023 order, we allowed defendant to supplement the record to
include documentation evidencing plaintiff's nonpayment of the April 2022
transportation expenses.
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transportation arrears. Alternatively, if the judge was not inclined to compel
plaintiff's payment of the transportation expenses, defendant requested an
adjustment to any Mallamo credits awarded by the judge.
After hearing the testimony, and considering the parties' written
summations, the judge entered the DJOD, addressing equitable distribution,
child support, and pendente lite support. 3
In determining equitable distribution of the marital assets, the judge
considered the applicable factors under N.J.S.A. 2A:34-23.1: the parties'
twenty-six years of marriage; their ages and medical histories; defendant's
custodial responsibilities for Matthew; defendant's lack of higher education and
lack of work history; her failure to obtain full-time employment; plaintiff's
payment of marital expenses and ability to accrue assets during the marriage;
and the value of the parties' assets, including plaintiff's cash balance account
and 403(b) account.
In arriving at a date for calculating equitable distribution of the marital
assets, the judge determined the marriage ended on September 19, 2019, which
was the date plaintiff filed his divorce complaint. While plaintiff argued the
3
The DJOD also addressed plaintiff's payment of alimony. The alimony award
is not challenged on the appeal or cross-appeal.
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marriage ended when the parties separated in November 2012, the judge found
plaintiff "contro[lled] . . . when to file for divorce" and therefore "acquiesce[d
to] the filing date being the appropriate date." The judge awarded defendant
one-half the value of plaintiff's 403(b) account as of September 19, 2019, and
found plaintiff solely responsible for a $14,000 loan he took against the 403(b)
account.
The judge also calculated plaintiff's child support obligation for Matthew
to be $658 monthly. However, the judge explained:
In New Jersey, "child support belongs to the child;
therefore, child support paid directly to a parent is
considered an asset of the child in the nature of
unearned income and will disqualify the child for
government benefits." J.B. v. W.B., 215 N.J. 305, 324
[(citations omitted)]. Accordingly, if [p]laintiff pays
child support to [d]efendant, Matthew's government
benefits would be terminated.
Because he recognized receipt of child support would terminate Matthew's
receipt of governmental benefits, the judge directed plaintiff to pay the
following expenses, which had an "impact on Matthew," directly to the
providers: defendant's $272 monthly electric and gas bill; defendant's $160
monthly cellular phone bill; and defendant's $257 monthly auto insurance
payment. These monthly payments were roughly the same amount as plaintiff's
monthly child support obligation for Matthew.
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On appeal, plaintiff argues the judge erred in determining the September
19, 2019 filing of the divorce complaint as the date for calculating equitable
distribution of the marital assets. He further contends the judge erred in
awarding defendant one-half of his 403(b) account as of September 19, 2019.
Additionally, plaintiff asserts the judge erred in directing him to pay
defendant's gas, electric, cellular phone, and auto insurance bills directly to the
providers in lieu of a direct child support payment for Matthew. Plaintiff argues
such payments improperly benefitted other residents of defendant's household,
violated the Thirteenth Amendment's prohibition on involuntary servitude, and
were likely to exceed his monthly child support obligation. We reject plaintiff's
arguments.
Our review of a Family Part order is limited. See Cesare v. Cesare, 154
N.J. 394, 411 (1998). We "review [a] 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, 154 N.J. at 412). Such deference is particularly
proper "when the evidence is largely testimonial and involves questions of
credibility." Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to
J.W.D., 149 N.J. 108, 117 (1997)).
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"Thus, 'findings by the trial court are binding on appeal when supported
by adequate, substantial, credible evidence.'" Thieme, 227 N.J. at 283 (quoting
Cesare, 154 N.J. at 411-12). "Only when the trial court's conclusions are so
'clearly mistaken' or 'wide of the mark' should we interfere." Gnall v. Gnall, 222
N.J. 414, 428 (2015) (quoting N.J. Div. of Youth & Fam. Servs. v. E.P., 196
N.J. 88, 104 (2008)). However, we review legal issues de novo. Ricci v. Ricci,
448 N.J. Super. 546, 565 (App. Div. 2017).
We first address plaintiff's argument regarding the date for calculation of
equitable distribution of the marital assets. A judge's allocation of marital assets
will be reviewed for abuse of discretion and overturned only if the judge's
"findings were mistaken," the "determination could not reasonably have been
reached on sufficient credible evidence present in the record," or the judge
"failed to consider all of the controlling legal principles." Slutsky v. Slutsky,
451 N.J. Super. 332, 355-56 (App. Div. 2017) (quoting Gonzalez-Posse v.
Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009)).
"[F]or purposes of the equitable distribution of marital assets, a marriage
is deemed to end on the day a valid complaint for divorce is filed that
commences a proceeding culminating in a final judgment of divorce." Genovese
v. Genovese, 392 N.J. Super. 215, 225 (App. Div. 2007) (quoting Portner v.
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Portner, 93 N.J. 215, 225 (1983)). "[M]ere physical separation alone is an
insufficient indication that a marriage is effectively at an end." Brandenburg v.
Brandenburg, 83 N.J. 198, 207 (1980).
Here, consistent with well-settled case law, we are satisfied the judge did
not err in establishing September 19, 2019 as the equitable distribution date.
Because plaintiff filed the divorce complaint, he controlled the date for
determining equitable distribution. Nothing precluded plaintiff from filing the
complaint at the time the parties separated.
We next address whether the judge abused his discretion in awarding
defendant one-half of the value of plaintiff's 403(b) account as of September 19,
2019. We reject plaintiff's argument.
"A Family Part judge has broad discretion in . . . allocating assets subject
to equitable distribution," Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div.
2012), and in determining the manner of distribution, Steneken v. Steneken, 356
N.J. Super. 427, 435 (App. Div. 2004), aff'd in part, modified in part on other
grounds, 183 N.J. 290 (2005). We will affirm an award of equitable distribution
provided "the trial court could reasonably have reached its 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).
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In a divorce action, "the court may make such award or awards to the
parties . . . to effectuate an equitable distribution of the property, both real and
personal, which was legally and beneficially acquired by them or either of them
during the marriage or civil union." N.J.S.A. 2A:34-23(h). We construe the
statute to "recognize that marriage is 'a shared enterprise, a joint undertaking,
that in many ways . . . is akin to a partnership.'" Weiss v. Weiss, 226 N.J. Super.
281, 287 (App. Div. 1988) (quoting Smith v. Smith, 72 N.J. 350, 361 (1977)).
"[T]he goal of equitable distribution . . . is to effect a fair and just division of
marital assets." Steneken,183 N.J. at 299 (quoting Steneken, 367 N.J. Super. at
434).
It is presumed that "each party to a marriage . . . contributes to the
enterprise that produces an accumulation of property." Perkins v. Perkins, 159
N.J. Super. 243, 247 (App. Div. 1978). "Although the acquisition of property
may be traced more directly to one partner than another, the distribution should
reflect non-pecuniary as well as pecuniary contributions to the marriage." Ibid."After a trial judge identifies the marital assets and determines the value
of each asset, the judge must decide 'how such allocation can most equitably be
made.'" M.G. v. S.M., 457 N.J. Super. 286, 294 (App. Div. 2018) (quoting
Rothman v. Rothman, 65 N.J. 219, 232 (1974)). Because "equitable distribution
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does not presume an equal distribution," id. at 295 (citing Rothman, 65 N.J. at232 n. 6), a judge may not "mechanical[ly] divi[de]" the marital assets but must
instead weigh "the many considerations and circumstances . . . presented in each
case," id. at 294 (omission in original) (quoting Stout v. Stout, 155 N.J. Super.
196, 205 (App. Div. 1977), overruled on other grounds by Petersen v. Petersen,
85 N.J. 638, 643 n. 2 (1981)).
N.J.S.A. 2A:34-23.1 requires a court to consider the following factors
when dividing the marital assets: the length of the marriage; the parties' age and
health; the income or property each party brought to the marriage; the parties'
standard of living during the marriage; the parties' income and earning
capacities; each party's contribution to the other's earning power; each party's
contribution to the acquisition of the marital property; the contribution of a party
as a homemaker; and any other factors the court may deem relevant. As
embodied by these statutory factors, the parties' contributions to the marriage
are "not measurable only by the amount of money contributed," but also "[t]he
nonremunerated efforts of raising children [and] making a home," whose "worth
is . . . entitled to substantial recognition." Carr v. Carr, 120 N.J. 336, 347 (1990)
(quoting Gibbons v. Gibbons, 174 N.J. Super. 107, 113 (App. Div. 1980), rev'd
on other grounds, 86 N.J. 515, 525 (1981)).
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Here, the judge recognized plaintiff provided significant financial
contributions to the household during the marriage based on his employment.
The judge also acknowledged defendant provided significant contributions to
the household during the marriage as she took care of the marital home.
Defendant also cared for the parties' children, and one child suffered significant
disabilities. The judge found defendant's contributions to the household during
the marriage allowed plaintiff to work, and to accumulate the assets in his 403(b)
account.
Plaintiff asserts he made voluntary financial contributions to the
household after the parties separated, and those contributions adversely affected
his quality of life. However, as the judge properly recognized, plaintiff's
departure adversely impacted defendant as well because she had to care for the
children without plaintiff's participation. Moreover, although plaintiff contends
defendant's irresponsible spending during the marriage "precluded [his]
accumulation of wealth," plaintiff failed to present any evidence supporting this
allegation. Based on the judge's application of the statutory factors under
N.J.S.A. 2A:34-23.1, and consideration of defendant's nonpecuniary
contributions to the household during the marriage, we are satisfied the judge
did not abuse his discretion in distributing plaintiff's 403(b) account.
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We next consider plaintiff's argument that the judge erred in ordering him
to pay defendant's monthly electric, gas, cellular phone, and auto insurance
expenses directly to the respective providers in lieu of ordering plaintiff's
payment of child support for Matthew. We disagree.
A judge's "[child support] award will not be disturbed unless it is
manifestly unreasonable, arbitrary, or clearly contrary to reason or to other
evidence, or the result of whim or caprice." J.B. v. W.B., 215 N.J. 305, 326
(2013) (quoting Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012)).
N.J.S.A. 2A:34-23 provides: "[A]fter judgment of divorce . . . the court
may make such order . . . as to the care, custody . . . , and maintenance of the
children . . . as the circumstances of the parties and the nature of the case shall
render fit, reasonable and just . . . ." A judge awarding child support must
consider, in relevant part: the needs of the child; the child's income; and any
other relevant factors. N.J.S.A. 2A:34-23(a). In computing child support for
adult unemancipated children with "severe mental or physical" disabilities , the
court shall also consider "the child's eligibility for public benefits and services
for people with disabilities and may make such orders . . . as are necessary to
promote the well-being of the child." Ibid.A-2943-21
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Plaintiff argues his compelled payment of certain household bills
impacting Matthew in lieu of child support improperly benefits defendant and
the other adult residents of defendant's household–specifically, defendant's
mother, defendant's sister, and Tyler. We disagree.
"[A] custodial parent cannot[,] through the guise of the incidental benefits
of child support[,] gain a benefit beyond that which is merely incidental to a
benefit being conferred on the child." Strahan v. Strahan, 402 N.J. Super. 298,
308 (App. Div. 2008) (alterations in original) (quoting Loro v. Del Colliano, 354
N.J. Super. 212, 225-26 (App. Div. 2002)). However, "[a] custodial parent's
needs may not be entirely divorced from those of the child[]." Zazzo v. Zazzo,
245 N.J. Super. 124, 131 (App. Div. 1990) (citing Cooper v. Cooper, 99 N.J. 42(1984)). "If there is some incidental benefit to the custodial parent from [a]
component of child support, the law is not offended." Ibid.Judges have broad discretion in awarding child support. J.B., 215 N.J. at
325-26. If there is satisfactory evidentiary support for the trial judges' findings,
our "task is complete and [we] should not disturb the result." Beck v. Beck, 86
N.J. 480, 496 (1981). Moreover, Family Part judges possess broad equitable
powers to accomplish substantial justice. Weitzman v. Weitzman, 228 N.J.
Super. 346, 358 (App. Div. 1988).
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We are satisfied the judge appropriately exercised his equitable powers in
compelling plaintiff's payment of certain household expenses having an
"impact" on Matthew in lieu of ordering plaintiff's payment of child support for
Matthew. The judge calculated plaintiff's child support obligation for Matthew
would be $658 per month. The judge found, and plaintiff did not dispute,
Matthew's governmental benefits would terminate if plaintiff paid child support
for Matthew. More importantly, there was no dispute Matthew would lose
Medicaid insurance if he received child support.
To avoid termination of Matthew's receipt of governmental benefits, the
judge ordered plaintiff to directly pay the providers for the family's monthly gas,
electric, cellular phone, and auto insurance bills. These monthly bills were
approximately equal to the amount of monthly child support calculated for
Matthew. While other members of defendant's household may receive an
incidental benefit resulting from plaintiff's payment of certain monthly
household expenses in lieu of child support, the judge's remedy preserved
Matthew's standard of living, especially his access to health insurance, and freed
funds for defendant to contribute toward Matthew's financial needs. We are
satisfied the judge's order equitably accomplishes the child support objectives
identified in N.J.S.A. 2A:34-23(a) based on Matthew's unique circumstances.
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Therefore, we discern no abuse of discretion in the judge's fashioning of such a
remedy.
We next consider plaintiff's argument that compelling his payment of
certain monthly household bills in lieu of child support violates the Th irteenth
Amendment to the United States Constitution. He contends such payments are
"tantamount to 'involuntary servitude.'" We disagree.
Section 1 of the Thirteenth Amendment provides: "Neither slavery nor
involuntary servitude, except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United States, or any place
subject to their jurisdiction." U.S. Const., amend. XIII, § 1. The Amendment
extends to "those forms of compulsory labor akin to . . . slavery which in
practical operation would tend to produce like undesirable results." U.S. v.
Kozminski, 487 U.S. 931, 942 (1988) (quoting Butler v. Perry, 240 U.S. 328,
332 (1916)).
However, "not all situations in which labor is compelled by . . . force of
law violate the Thirteenth Amendment." Id. at 962. "[T]he prohibition against
involuntary servitude does not prevent the State or Federal Governments from
compelling their citizens, by threat of criminal sanction, to perform certain civic
duties." Id. at 943-44 (citing Hurtado v. U.S., 410 U.S. 578, 589 n. 11 (1973)
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(jury service); Arver v. U.S., 245 U.S. 366, 390 (1918) (military service); Butler,
240 U.S. at 332-33 (roadwork)).
In Moss v. Superior Court of Riverside County, 950 P.2d 59, 67 (Cal.
1998), the California Supreme Court concluded that "[t]he obligation of a parent
to support a child," which "'rests on fundamental natural laws" and "existed
under common law," "is in no way comparable or akin to peonage or slavery."
As the California Supreme Court explained:
When . . . the person claiming involuntary servitude is
simply expected to seek and accept employment, if
available, and is free to choose the type of employment
and the employer, and is also free to resign that
employment if the conditions are unsatisfactory or to
accept other employment, none of the aspects of
"involuntary servitude" which invoke the need to apply
a contextual approach to Thirteenth Amendment
analysis are present. There is no "servitude" since the
worker is not bound to any particular employer and has
no restrictions on his freedom other than the need to
comply with a lawful order to support a child. Working
to earn money to support a child is not involuntary
servitude any more than working in order to pay taxes.
Failure to do either may subject one to civil and
criminal penalties, but that compulsion or incentive to
labor does not create a condition of involuntary
servitude.
[Id. at 72.]
Other courts have similarly "conclude[d] that child-support awards fall
within that narrow class of obligations that may be enforced . . . without
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violating the constitutional prohibition against slavery." U.S. v. Ballek, 170
F.3d 871, 874 (9th Cir. 1999); accord Child Support Enf't Agency v. Doe, 125
P.3d 461, 474 (Haw. 2005); Freeman v. Freeman, 397 A.2d 554, 557 n. 2 (D.C.
Cir. 1979).
While we are not bound by case law from other jurisdictions, we may find
the reasoning of those courts persuasive. See Lewis v. Harris, 188 N.J. 415, 436
(2006) (noting our courts are "not bound by . . . the precedents of other states,
although they may provide guideposts and persuasive authority"). Based on the
rationale expressed by the courts in the cases addressing the payment of child
support and the Thirteenth Amendment, we are satisfied the judge's imposition
of a financial obligation, compelling plaintiff's payment of certain household
expenses impacting Matthew in lieu of the payment of child support, does not
violate the Thirteenth Amendment. Plaintiff remains free to choose
employment, resign employment, or seek a job change. Thus, we are satisfied
the judge's order, compelling plaintiff's payment of defendant's monthly gas,
electric, cellular phone, and auto insurance bills directly to the providers, did
not violate plaintiff's Thirteenth Amendment rights. 4
4
In the event defendant's monthly expenses for gas, electric, cellular phone,
and auto insurance substantially exceed the calculated monthly amount for
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We next address defendant's cross-appeal. Defendant argues the judge
erred in failing to decide her motion to compel plaintiff's payment of arrears for
pendente lite ordered transportation expenses. As discussed, under a November
8, 2019 pendente lite order, plaintiff was required to pay defendant the sum of
$278 per month for transportation expenses. At trial, plaintiff admitted he failed
to pay all of the monthly transportation expenses under the pendente lite order.
Nevertheless, the judge awarded a Mallamo credit to plaintiff for his payment
of those expenses.
According to defendant, plaintiff still owed her $1,112, representing
unpaid transportation expenses for the months of January through April 2022.
As part of defendant's written summation at the conclusion of the divorce trial,
defendant requested reimbursement of the $1,112 or, in the alternative, the
amount of the unpaid transportation expenses to be applied against any Mallamo
credit awarded to plaintiff. However, the judge never issued a decision
regarding defendant's request.
We review a trial judge's adjustment to a pendente lite support award for
abuse of discretion. Slutsky, 451 N.J. Super. at 368. Pendente lite support
Matthew's child support, plaintiff may file the appropriate application to modify
this obligation. See N.J.S.A. 2A:34-23; Lepis v. Lepis, 83 N.J. 139, 157 (1980).
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awards are subject to amendment after trial because they are typically
established by the submission of certifications and without the benefit of a
plenary hearing. N.J.S.A. 2A:34-23; Mallamo, 280 N.J. Super. at 11-12.
Generally, "a judge will not receive a reasonably complete picture of the
financial status of the parties until a full trial is conducted." Id. at 16.
Here, as part of the DJOD, the judge awarded a Mallamo credit to plaintiff
for his payment of transportation expenses despite plaintiff's admission during
trial that he failed to pay several months of those court-ordered expenses.
Because plaintiff received credit for expenses he failed to pay, defendant is
entitled to immediate reimbursement of the pendente lite transportation
expenses for plaintiff's Mallamo credits to remain valid.
The judge never addressed defendant's request for reimbursement of the
unpaid transportation expenses. Thus, we are constrained to remand to the
Family Part to address the issue of plaintiff's unpaid transportation expenses
from January 2022 through April 2022, and issue a decision on the merits,
including, if appropriate, an adjustment to the award of Mallamo credits to
plaintiff.
Affirmed as to the appeal. Remanded for further proceedings consistent
with this opinion as to the cross-appeal. We do not retain jurisdiction.
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