K.O. v. F.O. ( 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NOT FOR PUBLICATION WITHOUT THE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-1101-22
K.O.,1
Plaintiff-Respondent/
Cross-Appellant,
v.
F.O.,
Defendant-Appellant/
Cross-Respondent.
___________________________
Submitted November 6, 2024 – Decided November 14, 2024
Before Judges Firko and Augostini.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FM-12-1438-21.
George G. Gussis, PA, attorneys for appellant/cross-
respondent (George G. Gussis, on the briefs).
1
To safeguard their privacy, we refer to the parties and their minor children by
their initials. R. 1:38-3(d).
Rozin Golinder Law, LLC, attorneys for
respondent/cross-appellant (Edward A.
Wojciechowski, of counsel and on the briefs).
PER CURIAM
Defendant F.O. appeals from the November 1, 2022 dual judgment of
divorce (DJOD) entered in this action involving his ex-wife, plaintiff K.O.,
following a six-day trial. Defendant argues the Family Part judge erred by: (1)
giving plaintiff the first opportunity to purchase the former marital home; (2)
equitably distributing 383 Sandford Street in New Brunswick, which was a pre -
marital asset, and no marital funds were used to maintain it; (3) equitably
distributing a vacant lot on Lee Avenue in New Brunswick, which was originally
purchased by his mother, and repurchased by defendant using his mother's
money; (4) not granting the parties equal residential custody and parenting time;
(5) awarding plaintiff alimony as she was voluntarily underemployed; (6) failing
to comply with Rule 5:8-6 in determining custody and parenting time; (7)
awarding alimony and not entering an order pendente lite as to how household
expenses were to be paid; and (8) awarding plaintiff child support in the amount
of $141.00 per week after erroneously adopting plaintiff's parenting time plan.
On cross-appeal, plaintiff argues the judge erred: (1) in utilizing an annual
income of $110,000.00 for defendant when calculating alimony because his
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income is substantially higher; and (2) in holding both parties responsible for
payment of their own counsel fees as defendant acted in bad faith, and the Rule
5:3-5(c) factors weigh in plaintiff's favor.
Following our review of the record and applicable law, we reject
defendant's arguments on equitable distribution and custody and parenting time.
However, as to plaintiff's cross-appeal, because the judge undervalued
defendant's income, we reverse the alimony award and remand for a new
analysis, which shall include defendant's actual earned and unearned income.
The child support award is reversed because the judge utilized an erroneous
alimony award in the child support calculation. Based on the revised alimony
and child support awards on remand, the judge shall consider anew the counsel
fee decision.
I.
A.
Factual Background
The parties married in August 1999. They have four children: S.O., born
in May 2000; K.O., born in July 2002; M.O., born in May 2005; and Ka.O., born
in 2010. Only two of the children—M.O. and Ka.O.—were minors at the time
of divorce. During the marriage, plaintiff worked as a special education teacher
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and from 2011 to 2013 worked as a supervisor of special education, which
required her to work longer hours and paid her a higher salary. As a teacher,
plaintiff earned $95,853.00 per year. Defendant became a firefighter shortly
after the parties married. In 2020, defendant earned $125,417.20, and in 2021,
he earned $133,000.00.
B.
Real Property
In 1997, defendant and his parents purchased a two-family rental property
at 383 Sandford Street. That same year, defendant purchased the property from
his parents for $110,000.00, although he claimed it was worth $200,000.00.
Plaintiff believed that defendant did not actually pay his parents any money for
the property but they transferred title to him. Defendant testified that he
refurbished the property while living in one of the apartments and, after moving
out, rented both apartments and collected the rent.
After three years of dating, plaintiff and defendant got engaged in 1998
and lived together in an apartment in Somerset. Shortly after their engagement,
they purchased a three-family rental property at 221 Howard Street for
$195,000.00 from defendant's parents. The deed listed both parties as owners.
They moved into one of the apartments and rented the other two units.
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Defendant testified that his parents had moved to the United States from
Kenya and that his mother had hoped to develop a successful real estate business
with him and plaintiff. Defendant's mother funded their real estate purchases
until she passed away in 2020. Defendant said that whenever he needed money,
he went to his mother; "she was like the bank." In December 2001, plaintiff and
defendant purchased their marital home in Spotswood for $245,000.00 and
moved into the house from the Howard Street apartment.
Also in 2001, plaintiff testified she and defendant obtained a mortgage on
the Sandford Street property because the property was not self-sufficient, and
the tenants did not always pay the rent. To compensate, defendant used marital
funds to pay the mortgage. The "entire apartment" was also refurbished at one
point. Plaintiff testified that funds to make those improvements were "taken
from here or there." At times, it was "like a shell game" with funds coming from
rental income of other apartments or from "some other place."
Plaintiff testified that Howard Street was also not self-sufficient and
required updating. When there were shortfalls, marital funds were used to pay
for them. Plaintiff testified the parties' plan for the rental properties was to pay
off the mortgages and then use the rental income to fund their children's college
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education. That plan did not come to fruition, however, because the rental
income was not enough to support the properties.
Defendant conceded that the tenants did not always pay the rent, but he
insisted the mortgages were always paid and that the total rents exceeded the
mortgage payment. Defendant denied that he used joint funds to support the
apartments. He claimed he used his own funds to refurbish the apartments and
did most of the work himself. He also claimed that he used rental income to
make repairs and update the apartments.
In 2004, plaintiff, defendant, and his mother bought a vacant lot at 184 -
186 Redmond Street, intending to build a duplex on it, and then sell the duplex
for a profit. Plaintiff testified all three names were on the deed. Defendant
testified the purchase price was $143,000.00, and his mother provided the funds
to buy it. He secured a construction loan to build the duplex. Defendant had
the property subdivided and constructed two buildings with the help of friends
and subcontractors, then sold each for $310,000.00. Plaintiff stated this was a
successful venture because the parties were able to construct the duplex and sell
it in 2005 for a profit. Plaintiff testified she hoped to continue this type of real
estate venture, as opposed to owning rental properties, which she felt were not
profitable.
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Plaintiff testified that in December 2005, she, defendant, and his mother
used the profit that they received from the sale of the Redmond Street property
to buy two vacant lots: 188 Townsend Street for a purchase price of
$170,000.00, and 96 Lee Avenue for a purchase price of $320,000.00.
Defendant was named as the sole owner on the Lee Avenue deed, and
plaintiff testified she did not know why because she, defendant, and his mother
contributed to the purchase price. In 2006, defendant transferred title from Lee
Avenue to Silver City Services LLC, a limited liability company that he and his
mother had created to protect the family's real estate assets.2
Defendant claimed that his mother gave him the money to purchase Lee
Avenue. He rented it as a parking lot for commercial trucks. Defendant had
planned to construct a duplex on Lee Avenue, which he had estimated would
cost $1.2 million, but that never occurred. Defendant claimed that his mother
had been responsible for paying the taxes for Lee Avenue, and she had failed to
do so. Ultimately, he lost the property at a tax sale, but in 2018, his mother
loaned him $48,500.00 to repurchase the lot—by paying the delinquent taxes—
2
Defendant created another company, Merchantville Co-op LLC, also to protect
family assets. Both companies used the marital home's address as their business
addresses.
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and he has owned it ever since. Plaintiff did not dispute these facts or
defendant's testimony on this issue.
With respect to Townsend Street, all three were named as owners on the
deed. Plaintiff said they intended to build a duplex on Townsend Street and sell
it for profit, much like Redmond Street. Defendant explained that he and
plaintiff had secured a $600,000.00 mortgage secured by all their properties so
that he could construct a handicap accessible "group home for eight clients and
[twelve] staff members." During construction, "the money ran out," and
defendant could not complete the home.
Defendant testified he tried to obtain a mortgage to cover the $1.2 million
that Lee Avenue would cost and have $300,000.00 left to complete Townsend,
but he ultimately failed in securing the loan. Instead, he used money from his
paychecks to fund the project. Plaintiff said that without her knowledge,
defendant had used funds intended for the Spotswood marital home mortgage to
try to keep the Townsend property. Defendant conceded that he was not paying
the marital home mortgage at this time, but was using those funds for Townsend
Street.
The mortgage on both properties went into foreclosure. Defendant said
he applied for a mortgage to complete Townsend Street, but the application was
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not approved. He also transferred Townsend Street to Silver City Servicing and
then filed a petition in bankruptcy for the company, hoping to buy enough time
to finish Townsend Street and sell it. However, Townsend Street was not
finished and was lost in foreclosure.
To save the marital home, plaintiff testified the parties "bundled
everything together" into one mortgage, but they lost Townsend Street in
foreclosure. She referenced a November 2013 $600,000.00 mortgage from
Summit Capital Partners LLC to plaintiff, defendant, and Silver City Services
LLC, which listed Sandford Street, Howard Street, and Lee Avenue as collateral.
Plaintiff testified there was equity in Howard Street and Sandford Street, which
the parties used as collateral for the new mortgage to keep the marital home.
According to plaintiff, the parties "had to get a loan outside of a bank" because
two mortgages were in default, and the "regular bank" would not give them a
mortgage.
Defendant testified that plaintiff told him she "didn't want any part of the
responsibility on any of the houses," and removed herself from the loans.
Defendant testified that he refinanced the loans so that he alone was named as
the borrower. Plaintiff disputed this.
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Defendant further testified he obtained a loan on the Spotswood marital
home, which he called a "second mortgage," to purchase solar panels for that
home and claimed he solely made the monthly payments for the solar panels.
Plaintiff testified she was not aware of a second mortgage on the marital home
but was aware that defendant had purchased solar panels for the home, and he
paid the bill.
Plaintiff claimed that defendant collected the rents from their properties
but did not share the amount of rents collected or the expenses for the properties.
She did not know where the money came from to support the properties and
defendant refused to tell her. Plaintiff thought, however, that the rental income
was not enough to maintain the properties, and she "kept begging [defendant]"
to sell them. Plaintiff stated the marital home needed repairs, but the parties
could not afford to do them. Plaintiff said the mortgage on the marital home
was delinquent at one point because defendant used marital funds to support the
rental properties. Plaintiff claimed defendant never showed her any documents
that recorded where their money came from and where it went. Defendant
countered that plaintiff "stole" the real estate paperwork.
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C.
Marital Expenses and Lifestyle
Throughout their relationship, plaintiff testified the parties divided their
expenses and paid them with joint funds. She claimed that defendant did not
share information on the rental income and expenses, which he paid from a
checking account she had no access to. Initially, plaintiff stated that the parties
divided expenses until seven years ago, when she realized defendant earned
more money. Thereafter, plaintiff calculated the difference in their pay and
apportioned the parties' expenses in accordance with that ratio.
Plaintiff explained that, while her salary did not directly support the rental
properties, it indirectly did when rental incomes were insufficient, and defendant
used marital funds to support the properties. Plaintiff testified defendant refused
to tell her what the source of the funds was. The parties' tax returns for 2017 to
2020 indicated that the rental properties operated at a loss.
With respect to lifestyle, plaintiff described it as "middle class." Plaintiff
testified the family took one or two vacations each year and described the
restaurants they frequented and stores they shopped at. With respect to their
incomes, plaintiff reported on her case information statement (CIS) dated May
2, 2022, that her gross yearly income was $95,853.00 and her net income was
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$76,140.00, making her weekly gross income $1,849.00 and net income
$989.00. The monthly mortgages for the real properties were: $2,657.00
(Spotswood, balance of $179,625.00), $4,385.00 (Howard Street, balance of
$391,437.00), and $1,300.00 (Lee Avenue, balance unknown). The parties also
had home-related monthly expenses that totaled $1,420.00.
Plaintiff claimed that she and defendant were equally responsible for the
mortgages. However, she reported on her CIS that her current lifestyle expenses
included $2,581.00 for the Howard Street mortgage, nothing for Lee Avenue,
and the full amount of the Spotswood mortgage. She reported that the Schedule
A shelter expenses for the joint lifestyle totaled $9,762.00, while her current
Schedule A expenses totaled $6,815.00. Plaintiff estimated the following values
for the real estate: $460,000.00 (Spotswood); $365,500.00 (Sandford Street);
$575,000.00 (Howard Street); and $315,000.00 (Lee Avenue).
With respect to Schedule B transportation expenses, plaintiff reported that
they were nearly the same for both lifestyles ($1,260.00 joint and $1,182.00 for
current). Plaintiff's Schedule C personal expenses were also essentially the same
under both lifestyles ($3,993.00 joint and $4,044.00 current).
Plaintiff reported that her savings and checking accounts were valued at
roughly $1,450.00, and she maintained a college fund for the children that had
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been depleted. In addition to their vehicles, the parties owned a 1995 boat and
five dirt bikes, the values of which were unknown to plaintiff. In items of assets,
plaintiff owned: a retirement savings account valued at $256,120.00; a pension
valued at $792,880.00; and a life insurance policy with a cash-out value of
$26,906.00. Plaintiff had $21,019.00 in liabilities primarily resulting from loans
from a friend and against her retirement account, for which she paid a total of
$532.00 per month. Plaintiff estimated the parties' total gross assets subject to
equitable distribution were $2,876,284.00, with a net value of $2,284,203.00.
Defendant reported on his April 25, 2022 CIS, gross income of
$111,486.00 and net income of $89,273.00 ($2,416.00 gross weekly and
$1,100.00 net weekly). He reported no current expenses and reported only the
mortgage for the marital home for the joint lifestyle ($2,658.00). He claimed
that monthly Schedule A expenses were $3,894.00. He reported $450.00 in
Schedule B expenses and $1,189.00 in Schedule C expenses. Defendant testified
that he only reported expenses that he paid for the family.
Defendant reported the same estimated real estate values as plaintiff,
except he wrote "TBD" for Lee Avenue. Defendant claimed his bank accounts
totaled $86,647.00; his pension was valued at $1,405,634.00; his annuity was
valued at $273,887.00; and his Individual Retirement Account (IRA) was valued
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at $200,300.00. He listed the mortgage balances as follows: $164,022.00
(Spotswood first mortgage); $405,839.00 (Howard Street); $40,536.00
(Spotswood mortgage for solar panels); and $98,205.00 (Sandford Street,
monthly payment of $1,239.00).
Defendant also claimed he owed his mother's estate the sum that she had
lent him to buy back Lee Avenue. He also stated he owed $48,825.00 for
windows and credit card debt (monthly payments totaling $451.00). He listed
his net worth as $3,472,507.00, and the total subject to equitable distribution as
$757,437.00. Defendant conceded that Spotswood and Howard Street were
marital properties but disputed that Sandford Street and Lee Avenue were
subject to equitable distribution.
D.
Custody and Parenting Time Disputes
Plaintiff testified that she was previously responsible for making breakfast
for the two minor children, disciplining them, helping them with homework,
getting them ready for bed, grocery shopping, and doing household chores.
During summers, when she did not teach, plaintiff stated she spent most of her
time caring for the children and defendant devoted extra time to maintaining and
refurbishing the rental properties.
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Defendant drove the minor children to school, took them to doctor
appointments, made dinner for the family, and helped with laundry. As a
firefighter, he worked one twenty-four-hour shift followed by three days off.
M.O. and Ka.O. participated in various sports and extracurricular activities.
E.
The Divorce Trial
Trial lasted six nonconsecutive days. The judge also interviewed the two
minor children. Both parties were represented by counsel. Plaintiff and
defendant were the only witnesses who testified.
F.
The Judge's Decision
After trial, on November 1, 2022, the judge issued a nineteen-page written
decision, which was incorporated into the DJOD. The DJOD provides in
essence:
(1) The parties' equity in the former marital home in
Spotswood was to be equally divided after plaintiff
acquired defendant's interest "by offsetting" the
appropriate amount of equity she has in the other
properties.
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(2) The three rental properties, 221 Howard Street, 383
Sandford Street, and 96 Lee Avenue were to be
listed for sale. Defendant was permitted to purchase
the properties with the equity being equally
distributed. The judge ordered defendant to be
solely responsible for the $100,000.00 mortgage he
acquired on the Sanford Street property. The
mortgage encumbering the 96 Lee Avenue property
was to be paid out of the proceeds of the sale of that
property.
(3) The judge equally divided the vehicles, personal
property, and retirement accounts.
(4) Each party was responsible to pay their own credit
card debt.
(5) Defendant was ordered to pay $500.00 per month in
open durational alimony to plaintiff.
(6) The parties were awarded joint custody of M.O. and
Ka.O., with plaintiff designated as the parent of
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primary residence (PPR) for purposes of the
children's schooling.
(7) Each party was responsible for their own counsel
fees and costs incurred in the litigation.
On November 3, 2022, the judge entered a supplemental order and
decision awarding plaintiff $141.00 per week in child support. The judge
ordered plaintiff to maintain medical insurance coverage for the children , and
any unreimbursed healthcare and dental expenses for the children would be paid
50% by each party after plaintiff paid the first $250.00 per child per year of
unreimbursed expenses.
The judge ordered all extracurricular and college expenses incurred on
behalf of the children to be equally divided by the parties. Both parties were
ordered to maintain their existing life insurance policies until the children are
emancipated. The judge also ordered how the parties would declare the minor
children as deductions for income tax purposes until each was emancipated. The
judge attached a child support worksheet to his opinion. This appeal followed.
On appeal, defendant argues broadly that the judge's decision was an
abuse of discretion because every discretionary decision was made to his
detriment. Specifically, he asserts error in giving plaintiff the first opportunity
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to purchase the former marital home, and ordering 383 Sandford Street and 96
Lee Avenue subject to equitable distribution. Defendant argues the judge
abused his discretion in not granting the parties equal residential custody and
equal parenting time.
Defendant also contends the judge erred in awarding plaintiff alimony as
she was voluntarily underemployed and not ordering how the parties' household
expenses were to be paid pendente lite. Defendant also asserts the judge failed
to comply with Rule 5:8-6, and in awarding plaintiff $141.00 per week in child
support after "erroneously" adopting her parenting plan.
In her cross-appeal, plaintiff contends the judge erred in utilizing an
annual income of $110,000.00 for defendant when calculating alimony because
his income is substantially higher, and in holding both parties responsible for
their own counsel fees and costs as defendant acted in "bad faith," and the Rule
5:3-5(c) factors weigh in her favor.
II.
A.
Equitable Distribution
Defendant argues the judge abused his discretion in equitably distributing
the former marital home in Spotswood, 383 Sandford Street, and the Lee Avenue
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properties. Defendant contends that he should have been awarded the former
marital home because he alone was responsible for the mortgage. He also claims
383 Sandford Street and the Lee Avenue properties were his separate properties
not subject to equitable distribution.
Marriage is a shared enterprise and, as a result, when a marriage is
dissolved, the assets should be fairly divided by the parties. Rothman v.
Rothman, 65 N.J. 219, 229 (1974). The judge conducts a three-part analysis
when distributing a marital asset. Id. at 232. First, the judge decides what
property is eligible for distribution, then determines the value of the property,
and finally decides how much to equitably allocate to the parties. Ibid.Importantly, the term "equitable" does not necessitate that the parties receive
equal shares, but rather the judge provides the parties with a fair division
achieved by applying a series of factors set forth in N.J.S.A. 2A:34-23.1. See
Carr v. Carr, 120 N.J. 336, 348 (1990). These factors include:
(a) The duration of the marriage or civil union;
(b) The age and physical and emotional health of the
parties;
(c) The income or property brought to the marriage or
civil union by each party;
(d) The standard of living established during the
marriage or civil union;
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(e) Any written agreement made by the parties before
or during the marriage or civil union concerning an
arrangement of property distribution;
(f) The economic circumstances of each party at the
time the division of property becomes effective;
(g) The income and earning capacity of each party,
including educational background, training,
employment skills, work experience, length of absence
from the job market, custodial responsibilities for
children, and the time and expense necessary to acquire
sufficient education or training to enable the party to
become self-supporting at a standard of living
reasonably comparable to that enjoyed during the
marriage or civil union;
(h) The contribution by each party to the education,
training or earning power of the other;
(i) The contribution by each party to the acquisition,
dissipation, preservation, depreciation or appreciation
in the amount or value of the marital property, or the
property acquired during the civil union as well as the
contribution of a party as a homemaker;
(j) The tax consequences of the proposed distribution to
each party;
(k) The present value of the property;
(l) The need of a parent who has physical custody of a
child to own or occupy the marital residence or
residence shared by the partners in a civil union couple
and to use or own the household effects;
(m) The debts and liabilities of the parties;
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(n) The need for creation, now or in the future, of a trust
fund to secure reasonably foreseeable medical or
educational costs for a spouse, partner in a civil union
couple or children;
(o) The extent to which a party deferred achieving their
career goals; and
(p) Any other factors which the court may deem
relevant.
[N.J.S.A. 2A:34-23.1.]
Furthermore, the judge does not simply mechanically divide the marital
assets, but weighs the unique circumstances of each case. If a party contends
that an asset is immune from equitable distribution, the burden of proof lies with
the challenging party. Landwehr v. Landwehr, 111 N.J. 491, 504 (1988).
When the parties appeal the designation of assets subject to equitable
distribution and valuation, the standard of review is whether the judge's decision
was supported by sufficient credible evidence in the record. Rothman, 65 N.J.
at 233. When the parties appeal the amount of the equitable distribution award
or the manner of allocation, a reviewing court applies an abuse of discretion
standard. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div.
1978).
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In making an equitable distribution of marital property, a judge must
consider whether a party has dissipated an asset. Kothari v. Kothari, 255 N.J.
Super. 500, 506 (App. Div. 1992). While the Legislature did not define
dissipation, "the concept is a plastic one, suited to fit the demands of the
individual case." Ibid. Generally, dissipation may be found where a spouse uses
marital property for their own benefit, with the intent of diminishing the other
spouse's share of the marital estate, at a time when the marriage relationship was
in serious jeopardy. Id. at 506-07.
Here, the judge expressly considered each of the statutory factors. To
avoid repetition, we need only discuss the findings on the pertinent facts.
The judge found that the marriage had lasted twenty-three years, the
parties were both fifty-four years old, and in good health.
With respect to property brought into the marriage, the judge noted that
defendant purchased 383 Sandford Street and 221 Howard Street in 1997, two
years before the marriage, and had added plaintiff's name to the 221 Howard
Street property in contemplation of marriage. The 221 Howard Street rental had
three apartments, and the parties lived in one of them for the first five years of
their marriage.
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The judge determined the parties used their rental income and salaries to
maintain their middle-class lifestyle and did not spend beyond their means. The
parties did not have a written agreement regarding distribution of property.
The judge found that plaintiff's yearly income as a special education
teacher was $95,853.00, and defendant's income as a fireman was $110,000.00.
Defendant also received income from the rental properties, but he did not
disclose the amounts. Both parties were "earning incomes commensurate with
their education and training" and neither needed additional training or education.
Regarding each party's contribution to the other's earning power, the
factor was not applicable. With respect to the contributions each made to their
property, the judge found that defendant maintained the rental properties, with
plaintiff's occasional assistance. Each party would be responsible for the tax
consequences of the equitable distribution award.
The record shows neither party provided information on the value of the
properties they owned. Moreover, the judge found that plaintiff had a greater
need to remain in the former marital home with the children, noting that
defendant obtained a $100,000.00 loan hoping to purchase a nearby home, which
showed that he "tacitly had no opposition to" plaintiff's remaining in the former
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marital home. With respect to marital debt, the parties had agreed to distribute
it and that issue is not challenged on appeal.
The need for a trust or education fund was not applicable here, however,
the judge noted that plaintiff had an educational fund for the children, which she
would continue to maintain.
Neither party deferred career goals during the marriage. With respect to
"other relevant circumstances" factor, the judge concluded that defendant had
control over the real properties and decided financial matters for the properties,
noting "[p]laintiff was kept in the dark on those matters." Although defendant
claimed his mother provided financial support, the judge found he failed to
provide any supporting proof.
The judge awarded plaintiff the former marital home and required her to
use her share of equity in the rental properties to pay defendant his 50% share.
As stated, the judge required the parties to list the Howard Street property for
sale and to share in the proceeds.
The judge found that defendant had failed to meet his burden of proving
that the remaining two rentals—Sandford Street and Lee Avenue—were his
separate property not subject to equitable distribution. The judge recognized
that defendant purchased Sandford Street two years prior to the marriage but
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underscored that the parties' 2017 to 2020 joint income tax returns listed all of
the rental properties as operating at a loss all four years. The judge reasoned
this showed that "other marital mon[ies] were needed to supplement the rental
income to maintain the property." Further, the parties used equity in both
properties to purchase the marital home and to refinance it. The record supports
the judge's determination.
The judge held that both properties were to be sold with the parties sharing
in the proceeds and defendant being responsible for the $100,000.00 mortgage
that he alone obtained on Sanford Street to purchase a home, which never
occurred. The parties were to repay the $48,500.00 to defendant's mother's
estate, the proceeds of which were used to pay the delinquent taxes on Lee
Avenue and regain ownership of the lot.
With respect to all three rental properties, the judge permitted defendant
to purchase the properties, as he had expressed a desire to retain all of them.
The judge further ordered the parties to retain their respective vehicles and bank
accounts and to pay the credit cards in their own names.
Plaintiff's pension (valued at $792,879.55 for the coverture period) and
defendant's pension (valued at $1,405,634.35 for the coverture period) were to
be equally divided. Plaintiff also had a $255,501.42 retirement plan, from which
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she had obtained a $12,000.00 loan to pay for counsel fees. The judge denied
her request to reduce the value of the plan by the loan amount. Defendant also
had an annuity account valued at $178,034.02, which the judge ordered the
parties to divide equally as of the value at the time of the complaint. Defendant
also had a rollover IRA valued at $128,640.00 that the judge found was his
separate property, acquired prior to marriage, and supplemented with
inheritance monies from his late mother.
B.
The Former Marital Home
The judge rejected defendant's request to remain in the former marital
home and that he "alone" was responsible for paying the mortgage on the
Spotswood property. The judge found defendant's proofs on this issue were
inadequate.
Defendant included a document evidencing a November 2016 mortgage
to both him and plaintiff with the Spotswood home as collateral, which supports
both parties being liable for that mortgage. Defendant also produced a March
2021 Quicken Loans billing statement addressed to him only for a monthly
payment of $2,672.12, which matched the parties' reported home mortgage
payment, but the monthly bill statement was simply that—a billing statement.
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Further, plaintiff testified that she was a joint borrower on all the mortgages,
and the judge found her testimony "credible," and "basically truthful."
First, as plaintiff explained, the parties divided their expenses based on
the percentage of income they each earned, and as part of that agreement,
defendant paid the mortgage. The judge determined plaintiff's testimony was
"consistent[]" and "logical[]." Moreover, defendant's assertion that the loan for
the solar panels amounted to a second mortgage in his name is also unsupported
by the loan documents, which evidenced nothing more than a personal loan to
defendant.
Second, the judge awarded plaintiff the former marital home but also
required her to pay defendant his 50% share of its value with her equity in the
parties' other real estate. The value of the marital home includes deduction for
any outstanding mortgage. See Slutsky v. Slutsky, 451 N.J. Super. 332, 348
(App. Div. 2017) ("Where marital debts are proven, courts should deduct marital
debts from the total value of the estate, or allocate the obligations between the
parties."). Thus, as the judge properly observed, any mortgage owed by the
parties for the home should either be satisfied at the time of transfer or placed
in plaintiff's name as sole owner—a condition which she conceded at trial.
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Third, the parties stipulated that they would each be responsible for debts
in their separate names.
Finally, even if defendant was solely responsible for mortgage debt
encumbering the home, that alone would not entitle him to retain the home.
Rather, the decision would turn on the weight of the equitable distribution
factors, one of which specifically instructs the judge to consider the needs of the
PPR for purposes of child custody. N.J.S.A. 2A:34-23.1(l); see also Daly v.
Daly, 179 N.J. Super. 344, 350 (App. Div. 1981) (noting that an "[u]nderlying"
consideration in distributing the marital home is which parent will provide the
primary housing for the minor children).
Here, the judge duly found that the factors weighed in favor of plaintiff's
retaining the home, primarily because she would be the children's PPR for
school purposes, and Spotswood had always been the children's home. Also,
the judge found defendant had implicitly conceded that plaintiff would retain
the former marital home because he obtained a $100,000.00 mortgage on the
Sandford Street property with the intention of purchasing a separate home for
himself. It was only after that deal fell through did he make a claim for the
marital home. Thus, we discern no error or abuse of discretion on this issue.
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C.
Sandford Street and Lee Avenue
Defendant also argues the judge erred in finding Sandford Street and Lee
Avenue were marital properties and in awarding plaintiff half of their values.
With respect to Sandford Street, defendant claims that he alone purchased it
from his parents in 1997, prior to the marriage, with a "gift" of equity from his
parents. Defendant claims that: (1) the rental income from this property fully
supported it; (2) marital funds were never used for this property; (3) the property
was never intended to be a marital asset; (4) rents for this property were
deposited into a separate account to which plaintiff had no access; (5) and the
income and expenses for the property "were clearly delineated from the files on
the joint tax returns."
Defendant contends the court erred in finding that Lee Avenue was marital
property because his mother "originally acquired" that property and that Silver
City Services—the company that he and his mother formed—ultimately had
ownership of it. He contends that no marital funds supported this property and
that his mother bought it back after losing it in a tax foreclosure. Defendant
avers that plaintiff produced no documents to establish otherwise.
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The party claiming that property is separately owned, and thus immune
from equitable distribution, bears the burden of proof. Landwehr, 111 N.J. at
504 (affirming the holding in Painter v. Painter, 65 N.J. 196, 214 (1974)). A
court will presume that property acquired during the marriage is marital property
subject to distribution. N.J.S.A. 2A:34-23.1 ("It shall be a rebuttable
presumption that each party made a substantial financial or nonfinancial
contribution to the acquisition of income and property while the party was
married."). The equitable distribution statute "reflects a public policy that is 'at
least in part an acknowledgment that marriage is a shared enterprise, a joint
undertaking, that in many ways [] is akin to a partnership.'" Slutsky, 451 N.J.
Super. at 358 (quoting Thieme v. Aucoin-Thieme, 227 N.J. 269, 284 (2016) and
Smith v. Smith, 72 N.J. 350, 361 (1977)).
Here, the judge credited plaintiff's testimony that marital funds supported
all the rental properties, noting that the parties had reported on their income tax
returns that the rental properties operated at a loss and accepted plaintiff's
testimony that marital funds compensated for the loss. In addition, the judge
found that the rental income, combined with the parties' salaries, supported the
marital lifestyle, and the $48,500.00 sum that defendant's mother loaned him to
repurchase Lee Avenue had to be repaid to her estate.
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Moreover, while defendant claimed that the rental properties were self-
sufficient and the income generated from them was his alone, he provided no
documents to support this claim. Accordingly, the judge's ruling on equitable
distribution was supported by the evidence and not an abuse of discretion. We
agree that defendant failed to sustain his burden of proof that these real
properties were not subject to equitable distribution.
III.
A.
Custody and Parenting Time
Defendant argues that the judge erred in his custody determination by
adopting plaintiff's parenting time schedule for the two minor children, in
awarding child support based on that plan, and in failing to comply with Rule
5:8-6, which requires the judge to hold a custody hearing when custody is at
issue and authorizes the judge to interview the children in deciding custody .
Defendant claims that while he and plaintiff agreed to share legal custody,
her parenting time schedule resulted in the children spending more time with
her, thus negating their "shared" agreement. He further asserts the judge failed
to hold a custody hearing and failed to ask the children during their interviews
about their preferred living arrangement. Defendant also argues the judge erred
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in awarding $141.00 in weekly child support based on the "unfair parenting time
schedule order."
In relevant part, Rule 5:8-6 provides:
Where the court finds that the custody of children is a
genuine and substantial issue, the court shall set a
hearing date no later than six months after the last
responsive pleading. The court may, in order to protect
the best interests of the children, conduct the custody
hearing in a family action prior to a final hearing of the
entire family action. As part of the custody hearing, the
court may on its own motion or at the request of a
litigant conduct an in camera interview with the
child(ren). In the absence of good cause, the decision
to conduct an interview shall be made before trial. If
the court elects not to conduct an interview, it shall
place its reasons on the record. If the court elects to
conduct an interview, it shall afford counsel the
opportunity to submit questions for the court's use
during the interview and shall place on the record its
reasons for not asking any question thus submitted.
In determining child custody, the court must weigh the factors set forth in
N.J.S.A. 9:2-4(c), with the ultimate concern being the best interests of the
children. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) (citing V.C.
v. M.J.B., 163 N.J. 200, 227-28 (2000)).
N.J.S.A. 9:2-4(c) provides:
In making an award of custody, the court shall consider
but not be limited to the following factors: the parents'
ability to agree, communicate and cooperate in matters
relating to the child; the parents' willingness to accept
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custody and any history of unwillingness to allow
parenting time not based on substantiated abuse; the
interaction and relationship of the child with its parents
and siblings; the history of domestic violence, if any;
the safety of the child and the safety of either parent
from physical abuse by the other parent; the preference
of the child when of sufficient age and capacity to
reason so as to form an intelligent decision; the needs
of the child; the stability of the home environment
offered; the quality and continuity of the child's
education; the fitness of the parents; the geographical
proximity of the parents' homes; the extent and quality
of the time spent with the child prior to or subsequent
to the separation; the parents' employment
responsibilities; and the age and number of the
children.
In contested custody cases, the court "must reference the pertinent
statutory criteria with some specificity." Kinsella v. Kinsella, 150 N.J. 276, 317
(1997). Appellate courts accord the judge's factual findings after a bench trial
substantial deference when "'supported by adequate, substantial, credible
evidence' in the record." Landers v. Landers, 444 N.J. Super. 315, 319 (App.
Div. 2016) (quoting Gnall v. Gnall, 222 N.J. 414, 428 (2015)). "We also note
proper factfinding in divorce litigation involves the Family Part's 'special
jurisdiction and expertise in family matters,' which often requires the exercise
of reasoned discretion." Slutsky, 451 N.J. Super. at 344 (quoting Cesare v.
Cesare, 154 N.J. 394, 413 (1998)).
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"We defer to the credibility determinations made by the trial court because
the trial judge 'hears the case, sees and observes the witnesses, and hears them
testify,' affording it 'a better perspective than a reviewing court in evaluating the
veracity of a witness.'" Gnall, 222 N.J. at 428 (quoting Cesare, 154 N.J. at 412).
But "[a]ll 'legal conclusions, and the application of those conclusions to the
facts, are subject to our plenary review.'" Slutsky, 451 N.J. Super. at 344-45(quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
We reject defendant's arguments that the judge abused his discretion on
the issues of custody and parenting time. The judge addressed the N.J.S.A. 9:2-
4(c) factors. The judge accepted the parties' testimony that they equally cared
for the children in different ways. For example, plaintiff primarily cared for the
children when they were younger, and she currently helped them with
schoolwork and their nighttime routine.
Defendant was more involved with the children as they got older,
especially with their sports, coaching some of the teams, and driving Ka.O. to
school. Both parties prepared meals for the children. Plaintiff mostly handled
their clothing needs. Plaintiff scheduled doctor appointments for the children,
and defendant took them to the appointments. Plaintiff took a more active role
in disciplining the children.
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During the judge's interview of the children, neither "seemed upset" about
the divorce. Both said they enjoyed spending time with each parent and
discussed different activities they did with them. The judge found both parties
had strong ties with their children, which would likely continue. The children
conveyed that they were "comfortable with both" parties, relied on both parties,
and were "happy in their home environment." The judge highlighted that he did
not ask all questions that the parties had submitted for the interview but only
asked those that were "helpful" in deciding custody.
The judge found no history of domestic abuse. While there was one
incident when plaintiff struck defendant after he kept Ka.O. out late when she
had to get up early for a lacrosse game the next morning, the judge said it
"hardly" rose to the level of domestic violence.
The parenting plan plaintiff created provided "chunks" of time for each
parent (214 or 59% of overnights with plaintiff and 148 overnights with
defendant during days when he did not work), which she believed was important
to accommodate the children's school schedule. The judge emphasized that the
time plaintiff proposed the children spend with defendant was not during his
twenty-four-hour shifts, which would permit him to "fully enjoy the time with
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the children." Defendant, on the other hand, believed the children should move
every two days between the parties' two homes.
The judge found that plaintiff's plan was in the children's best interest s
because it would provide them stability and a routine, which they needed during
school, and it would allow them to remain in their home. In particular, the judge
noted that plaintiff's employment as a teacher allowed her to be home after
school and during the summer months. In contrast, defendant's employment as
a firefighter required him to work twenty-four-hour shifts, giving him time with
the children when he was not working. The judge underscored that in requesting
a shared parenting time arrangement, defendant offered no specific explanation
as to how that would work, particularly after considering his work schedule and
the children's school and sports schedules. There exists substantial credible
evidence in the record to support the judge's findings, including his credibility
findings, and we discern no abuse of discretion.
We reject defendant's argument that the judge failed to comply with Rule
5:8-6. Here, the judge considered all of the relevant statutory factors and
concluded that the best interests of the children would be served by plaintiff's
proposed parenting schedule for the reasons stated. On this record, we discern
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no abuse of discretion and defer to the judge's findings on custody and parenting
time.
B.
Child Support
Because defendant's child support argument is based exclusively on his
contention that the parenting time schedule should be modified to a fifty -fifty
schedule, it lacks merit and warrants no further discussion. R. 2:11-3(e)(1)(E).
However, we address the child support award because the family's income
exceeds $187,200.00.
Child support awards and modifications are left to the sound discretion of
the trial court, 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 court has substantial discretion in
making a child support award." Tannen v. Tannen, 416 N.J. Super. 248, 278
(App. Div. 2010). A child support determination will not be set aside unless
[shown to be] manifestly unreasonable, [unsupported by substantial evidence],
or "'the result of whim or caprice.'" Ibid. A court must attach a Guidelines
worksheet to its decision and also provide a statement of reasons for its decision.
Fodero v. Fodero, 355 N.J. Super. 168, 170 (App. Div. 2002).
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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 $187,200.00, "the court shall apply the
[G]uidelines up to $187,200.00 and supplement the [G]uidelines-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,
Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A
(2025), www.gannlaw.com. See also Isaacson v. Isaacson, 348 N.J. Super. 560,
581 (App. Div. 2002) (the "maximum amount provided for in the [G]uidelines
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)").
Pursuant to N.J.S.A. 2A:34-23(a), in determining the amount to be paid
by a parent for support of the child or children and the period during which the
support is owed, the court in those cases not governed by court rule shall
consider, but not be limited to, 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;
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(4) Earning ability of each parent, including
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.
Nevertheless, it is well within the judge's discretion to determine "the
choice of the methodology to employ in arriving at a child support award when
the total income of the parties exceeds the [g]uidelines," recognizing that the
"goal is to calculate a child support award that is in the best interest of the child
after giving due consideration to the statutory factors and the [G]uidelines."
Caplan v. Caplan, 182 N.J. 250, 272 (2005).
In Caplan v. Caplan, 364 N.J. Super. 68, 86-90 (App. Div. 2003), we set
forth a detailed process for determining child support in high-income families:
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First, the reasonable needs of the children must be
determined. . . .
....
Second, because there must be a fair and appropriate
allocation of the children's needs between the parties,
the ability of the parties to generate earned income, in
addition to unearned income, must be determined.
....
Third, upon determining the respective percentage of
each party's net imputed earned and unearned income
of their total combined net imputed earned and
unearned income, those percentages shall be applied to
determine each party's share of the maximum basic
child support guideline award for two children.
....
Fourth, the maximum basic child support amount . . .
should be subtracted from the court-determined
reasonable needs of the children to determine the
remaining children's needs to be allocated between the
parties. Then, the court must analyze the factors
outlined in N.J.S.A. 2A:34-23(a) and determine each
party's responsibility for satisfying those remaining
needs.
In the matter under review, the judge ordered defendant to pay plaintiff
$141.00 per week in child support, and for both parties to maintain life insurance
as currently existed to support that obligation. The judge also ordered each party
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to pay 50% of the children's unreimbursed medical expenses, and extracurricular
activities.
The judge erred and abused his discretion in awarding alimony to plaintiff
as stated using only $110,000.00 for defendant's income when the income tax
returns showed higher amounts for the reasons we next address regarding open
durational alimony. Consequently, the child support award was mistakenly
calculated.
Moreover, the judge did not conduct an analysis of the N.J.S.A. 2A:34-
23(a) factors. Accordingly, on remand, the judge shall make findings under
N.J.S.A. 2A:34-23(a) and determine whether a supplemental award in light of
the parties' earnings is warranted. We leave it to the judge's discretion whether
a hearing on this issue is needed.
IV.
Open Durational Alimony
Next, defendant contends the open durational alimony award is erroneous,
and the judge abused his discretion because: (1) the judge failed to impute
income to plaintiff on the basis she could have worked as a supervisor and earn
additional income during the summer months; and (2) the judge improvidently
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41
found that defendant had unreported rental income, which increased his income
beyond the amount he disclosed.
In her cross-appeal, plaintiff argues the judge erred and abused his
discretion because: (1) defendant's income was reported as $125,417.00 and
$133,000.00 on his 2020 and 2021 federal income tax returns, amounts
significantly higher than the $110,000.00 income figure used by the judge; and
(2) the $500.00 monthly alimony award is too low and should be recalculated
using defendant's reported yearly incomes in 2020 and 2021.
"The award of spousal support is broadly discretionary." Steneken v.
Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J.
290 (2005). The court may order alimony "as the circumstances of the parties
and the nature of the case shall render fit, reasonable and just." N.J.S.A. 2A:34 -
23. "[A]limony is neither a punishment for the payor nor a reward for the payee."
Mani v. Mani, 183 N.J. 70, 80 (2005).
"The basic purpose of alimony is the continuation of the standard of living
enjoyed by the parties prior to their separation." Innes, 117 N.J. at 503. "[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
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42
supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16
(2000).
Alimony awards are "governed by distinct, objective standards defined by
the Legislature in N.J.S.A. 2A:34-23(b)." Gnall, 222 N.J. at 429. The court
must consider the following statutory factors:
(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;
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(9) The history of the financial or non-financial
contributions to the marriage or civil union by each
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.
[N.J.S.A. 2A:34-23(b).]
The court must "make specific findings on the evidence about all of the
statutory factors" listed above. N.J.S.A. 2A:34-23(c). "[F]ailure to consider all
of the controlling legal principles requires a remand." Boardman v. Boardman,
314 N.J. Super. 340, 345 (1998). Here, in his opinion, the judge addressed each
of the requisite statutory factors.
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Where the court finds that a spouse is voluntarily underemployed,
unemployed without just cause, or otherwise generating less income than could
be earned, the court may impute income to the spouse. Tannen, 416 N.J. Super.
at 262; see also Arribi v Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982)
(providing that "one cannot find himself in, and choose to remain in, a position
where he has diminished or no earning capacity and expect to be relieved of or
to be able to ignore the obligations of support to one's family.").
"Imputation of income is a discretionary matter not capable of precise or
exact determination[,] but rather require[es] a trial judge to realistically appraise
capacity to earn and job availability." Elrom v. Elrom, 439 N.J. Super. 424, 434
(App. Div. 2015) (quoting Gnall v. Gnall, 432 N.J. Super. 129, 158, rev'd on
other grounds, 222 N.J. 414 (2015); Storey v. Storey, 373 N.J. Super. 464, 474
(App. Div. 2004)).
The imputed income must be based on a "realistic[]" assessment of the
party's earning ability in light of the party's education, past work experience,
qualifications, prevailing job opportunities, and average earnings for the
occupation based on department of labor statistics. Elrom, 439 N.J. Super. at
435-46 (applying to an alimony determination the standard for imputing income
when determining child support). Central to the inquiry is whether one spouse
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45
is failing to fulfill "the obligation to deal fairly" with the other in terms of
contribution to the marital lifestyle. Tannen, 416 N.J. Super. at 262-63(discussing Kay v. Kay, 405 N.J. Super. 278, 285 (App. Div. 2009)).
The court's decision to impute income to a spouse is a discretionary one
that will not be disturbed on appeal "absent a finding the judge's decision rested
on an impermissible basis, considered irrelevant or inappropriate factors, . . .
failed to consider controlling legal principles or made findings inconsistent with
or unsupported by competent evidence." Elrom, 439 N.J. Super. at 434 (internal
quotations omitted). "Consequently, when a reviewing court concludes there is
satisfactory evidentiary support for the trial court's findings, its task is complete
and it should not disturb the result . . . ." Id. at 433 (internal quotations omitted).
In the matter under review, the judge found that plaintiff testified
truthfully to her monthly income and expenses, as reflected on her CIS, while
defendant did not. Defendant not only failed to provide specific amounts on his
CIS for his expenses, but also failed to include any rental income.
With respect to the alimony factors, the judge found that the marriage was
long-term, lasting over twenty years, and thus subject to open durational
alimony. The judge determined that the parties enjoyed a middle-class lifestyle
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during the marriage, and both would be able to maintain that standard "as
supplemented."
As a teacher, plaintiff earned $95,853.00 per year, while defendant earned
$110,000.00 as a firefighter. Defendant claimed that plaintiff should return to
the higher paying supervisory position she held from 2010 to 2013 and work
summers to earn additional income, but the judge found his position unjustified.
The judge credited plaintiff's reasons for leaving the supervisory position were
"reasonable and believable" and that requiring her to work during the summers
to supplement her income was "not warranted." Thus, the judge found no basis
to impute income to her.
Both parties were equally involved with the children and would share
custody of them. And, both parties equally contributed to the marriage and the
accumulation of assets during the marriage. Neither party had plans of ending
their employment in the near future. The equitable distribution award provided
for the equal distribution of assets.
The court concluded that plaintiff was entitled to $500.00 per month in
open durational alimony, placing emphasis on "the parties' incomes" and the
"unaccounted for rental incomes" defendant had been receiving.
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On appeal, defendant contends the alimony award was erroneous because
the judge should have imputed income to plaintiff and erroneously found that he
had failed to report rental income. In her cross-appeal, plaintiff contends that
the judge should have awarded her more than $500.00 monthly alimony because
contrary to the judge's finding that defendant earned $110,000.00 yearly income
as a firefighter, defendant had yearly incomes of $125,417.00 and $133,000.00
in 2020 and 2021, respectively.
We first address defendant's argument. The judge did not abuse his
discretion in declining to impute income to plaintiff. The uncontroverted
evidence showed she had not worked as a supervisor since 2013, and when she
held that position, it was only for a three-year period. As plaintiff credibly
testified, she left the position because it took too much time away from the
family and she did not believe the additional pay was worth the additional time
she had to devote to the job. The judge found her explanation reasonable and
truthful. We defer to the judge's findings, which are supported by substantial
credible evidence in the record.
Moreover, plaintiff has not violated her duty to deal fairly with defendant
in terms of contribution to the marital lifestyle, since she continues to work full-
time as a teacher. See Tannen, 416 N.J. Super. at 262-63 (discussing divorcing
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48
spouse's obligation to deal fairly with one another in terms of earning income).
Plaintiff always earned less than defendant. She has no obligation to seek other
employment, or have income imputed to her, to benefit defendant. Id. at 263("Certainly no reported decision in this State has ever characterized each party's
obligation to the other in a divorce proceeding as a 'fiduciary duty,' the essence
of which is 'to act primarily for another's benefit.'").
Defendant's claim that he did not fail to disclose rental income is not
supported by anything in the record, except his own self-serving testimony. He
produced no records or evidence to corroborate his testimony. Thus, the judge
was free to reject his testimony, and we are satisfied nothing in the record
suggests that rejection amounted to an abuse of discretion.
With respect to plaintiff's cross-appeal that the judge erred in finding that
defendant's income as a firefighter was only $110,000 per year, her argument
has merit. In 2020, defendant's W-2 showed gross income from his employment
as a firefighter was $125,417.00, and in 2021, that amount increased to
$133,313.00. The judge gave no reason why he used the $110,000.00 amount
for defendant's income when his 2020 and 2021 W-2 forms showed greater
amounts, and the judge issued the alimony award in November 2022.
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For these reasons, we agree the judge misapplied his discretion in
calculating the alimony award requiring remand to address that issue.
V.
Status Quo Post DJOD
Defendant contends the court erred in failing to order the parties to
maintain the status quo post DJOD, pending complete distribution of the parties'
assets. In particular, defendant claims that the judge should not have ordered
his alimony and child support payments to begin until after he moved out of the
marital home and stopped paying his share of expenses associated with the
home. Defendant claims that he could not move out until the other assets were
sold and plaintiff paid him his share of the home.
Plaintiff counters that defendant's challenge is based on a self-created
problem. She contends that she is fully prepared to pay all expenses associated
with the marital home once defendant moves out and that his refusal to leave
does not render the judge's decision erroneous. We agree.
Pursuant to Rule 5:7-4A, support obligations must be paid immediately
upon entry of final judgment with the limited exception that, for good cause, the
court may modify the time for payment to begin. In relevant part, the Rule
instructs:
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(a) Immediate Income Withholding. All orders that
include child support shall be paid through immediate
income withholding from the obligor's current and
future income, unless the parties agree in writing to an
alternative arrangement, or either party shows and the
court finds good cause for an alternative arrangement.
If included in the same order as child support, the court
may, in its discretion, garnish a separate amount for
alimony, maintenance or spousal support, in
accordance with N.J.S.A. 2A:17-50[] and include such
amount in the immediate income withholding order.
....
(2) Procedure. If an order or judgment contains a child
support provision, the child support shall be paid
through immediate income withholding and the
withholding may include amounts for alimony,
maintenance or spousal support, unless the parties
agree, in writing, to an alternative arrangement or either
party shows and the court finds good cause for an
alternative arrangement. The court shall forward the
order to the Probation Division which shall prepare and
send a Notice to Payor of Income Withholding to the
obligor's employer or other source of income.
[Rule 5:7-4A(a).]
Here, the judge ordered support payments to begin on November 1, 2022,
the date of the DJOD. Defendant's contention that he should not have been
required to pay support until after all the properties were sold as those sales were
necessary for plaintiff to pay him his equitable share of the former marital home,
is baseless, and we discern no error.
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VI.
Counsel Fees
Finally, in her cross-appeal, plaintiff contends the judge erred in denying
her request for counsel fees. An award of attorney's fees in a matrimonial action
rests in the discretion of the Family Part judge. R. 5:3-5(c); Tannen, 416 N.J.
Super. at 285 (citing Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004)).
On appeal, the Family Part judge's decision regarding attorney's fees will be
upheld absent a showing of abuse of discretion. Ibid.In deciding whether to award attorney's fees, the judge 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
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(9) any other factor bearing on the fairness of an award.
[R. 5:3-5(c).]
Here, the judge did not fully explain his reasons for rejecting both parties'
counsel fee requests consistent with these factors. The record only shows the
judge recognized plaintiff paid $41,185.00 in fees and defendant paid
$42,415.00. The judge stated each party could pay their own fees, and neither
acted in bad faith, but rather used a mediator to resolve certain issues.
Because we are remanding for reconsideration of the alimony and child
support issues, the judge shall consider the counsel fee issue anew, taking into
consideration the Rule 5:3-5(c) factors.
Affirmed in part, reversed and vacated in part, and remanded. We do not
retain jurisdiction.
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