K.S. VS. J.S. (FM-18-0685-15, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5362-17T4
K.S.,
Plaintiff-Appellant,
v.
J.S.,
Defendant-Respondent.
________________________
Submitted March 24, 2020 – Decided July 10, 2020
Before Judges Yannotti, Hoffman, and Currier
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0685-15.
DeTommaso Law Group LLC, attorneys for appellant
(John J. Hays II, on the briefs).
Ulrichsen Rosen & Freed, LLC, attorneys for
respondent (Rebecca Day and Derek Matthew Freed, of
counsel and on the brief).
PER CURIAM
Plaintiff K.S. appeals from the dual judgment of divorce (JOD) entered in
this action against defendant J.S. The trial judge entered the JOD on April 27,
2018, following an eleven-day trial.
Plaintiff argues the trial judge erred by: 1) requiring him to pay $900 per
week in child support; 2) awarding defendant $75,000 to make up for the
depletion of a joint marital investment account; 3) awarding defendant one-half
of his Individual Retirement Account (IRA); 4) finding that certain Restricted
Stock Units (RSU) are subject to equitable distribution; 5) awarding defendant
the entire value of a condominium in North Carolina; 6) denying him a credit
for overpayment of pendente lite support; and 7) ordering him to attend
individual and co-parenting therapy. Following our review of the record and
applicable law, we reject these arguments and affirm.
The parties married in February 2006. They had three daughters: V.S.,1
born in 2009; E.S., born in 2011; and A.S., born in 2012.
After the birth of V.S., defendant became a stay-at-home parent. In 2010,
defendant was charged with child endangerment and completed a pre-trial
intervention program. The charge stemmed from an incident in which defendant
1
To safeguard their privacy, we refer to the adult parties and their children by
their initials. R. 1:38-3(d).
A-5362-17T4
2
went into a supermarket to get yogurt for V.S., who was sick and asleep in the
car. In 2015, plaintiff was substantiated for abuse by the Department of Child
Protection and Permanency (DCPP) based on a report that he placed V.S. in a
closet. He was required to attend parenting classes. The DCPP subsequently
modified its finding to "not established," after determining the closet did not
lock and the child was permitted to go to the bathroom.
The parties separated in January 2015; the next month, plaintiff filed a
complaint for divorce. On February 5, 2015, the court denied plaintiff's
emergent request for custody, without prejudice, and denied his request for
exclusive possession of the marital residence.
On April 10, 2015, the court ordered the parties to attend mandatory
custody and parenting mediation and granted plaintiff's request for joint custody.
On May 20, 2015, the court signed a consent order appointing Laurie Poppe as
parenting coordinator (the parenting coordinator) for the parties. On May 28,
2015, the court entered an order appointing a psychologist, Donald Franklin,
Ph.D, to conduct an evaluation of the parties' children.
In a series of orders, the court required plaintiff to liquidate his entire First
Fidelity account (the Fidelity account), which totaled $575,980.53 at the time of
the filing of plaintiff's complaint, for the payment of the parties' legal and expert
A-5362-17T4
3
fees. On January 18, 2018, the court denied plaintiff's motion to terminate
pendente lite support retroactive to June 1, 2017, the date defendant began her
employment. The court further provided that plaintiff shall be entitled to a
Mallamo2 credit on his pendente lite obligations "at the time of equitable
distribution for any amount due and owing, as determined by the Trial Court ."
At the time of trial, plaintiff was forty-one with a Ph.D in statistics and
worked for Novartis since 2008.3 Between 2010 and 2017, his total salary and
bonus increased from approximately $185,000 to approximately $255,000.
Since 2008, he annually received three tranches of stock options and RSUs that
went into his Fidelity account when vested. Plaintiff estimated their value upon
vesting was between $20,000 and $30,000.
At the time of trial, defendant was thirty-nine with a master's degree in
statistics; in 2017, she resumed working as a statistical analyst for Bayer at an
annual salary of $120,000, plus a bonus. Prior to the marriage, defendant
acquired a condominium in North Carolina and lived there in 2008. She paid
the mortgage and the homeowners' association fee from money held in a
Wachovia Bank account that she maintained throughout the marriage while
2
Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995).
3
Plaintiff worked for Brisol-Myers Squib prior to Novartis.
A-5362-17T4
4
working for Bristol-Meyers Squibb. The parties disputed whether plaintiff ever
helped clean up the property or gave defendant money for maintenance.
Defendant estimated that monthly spending of $11,267 constituted the
marital lifestyle. She asked for alimony based on a $16,896 per month lifestyle.
She stated that her childcare expenses had increased because she went back to
work and the children were getting older. She sought child support of $1398
per week, claiming that childcare expenses were $9777 per month and she
allocated sixty-two percent of those expenses to defendant.
Plaintiff listed his annual salary as $181,468, plus variable annual
bonuses, and his current monthly expenses as $9556. Overall, he asserted total
assets subject to equitable distribution was $1,000,040, and total assets not
subject to equitable distribution was $285,692. The stipulated value of the
marital home was $505,000, with a mortgage of $359,000, as of the date of the
complaint.
Dr. Franklin testified that he found both parties to be fit parents, each with
minor psychological problems. Dr. Franklin was concerned that plaintiff
coached the children, which could lead to parental alienation. He further found
plaintiff could be rigid with a "very high need of being in control" and resistant
to cooperation; as a result, he needed to learn how to work cooperatively with
A-5362-17T4
5
defendant. Dr. Franklin recommended joint legal custody, with defendant as the
parent of primary residence, and recommended appointing a parenting
coordinator.
The parenting coordinator testified that plaintiff regularly did not respond
to defendant's request to participate in the children's activities; in addition, co-
parenting was non-existent because plaintiff refused to participate. As a result,
the parenting coordinator was unsure whether co-parenting therapy would prove
helpful. She further testified that plaintiff repeatedly challenged her
recommendations.
Psychiatrist Morton Fridman, who conducted a psychiatric examination of
plaintiff, testified that plaintiff had compulsive personality features that caused
him to be "rigid." Dr. Fridman recommended that plaintiff engage in individual
counseling; however, plaintiff failed to do so. Psychiatrist Roy Lubit, who
conducted a psychological examination of defendant, concluded that she had no
significant psychopathology that would adversely affect her parenting, other
than stress in reaction to the marital situation.
The judge adopted the parenting coordinator's conclusion and found that
the communication between the parties was poor and predominantly plaintiff's
fault; as a result, he granted joint custody on the condition that plaintiff comply
A-5362-17T4
6
with therapeutic and co-parenting therapy. The judge ordered plaintiff engage
in co-parenting therapy to "learn how to co[-]parent" and required plaintiff
complete co-parenting therapy within thirty days. If plaintiff failed to complete
the therapy successfully, the judge stated he would treat the failure as a
"substantial change in circumstances." The judge also ordered individual
therapy for plaintiff, "focusing on anger management and parental alienation,"
and made the therapies a condition of joint legal custody and parenting time.
The judge awarded defendant $44,000 a year in alimony for five years.
Turning to child support, the judge estimated the parties earned nearly $400,000
in combined salary. The judge then considered the factors set forth in N.J.S.A.
2A:34-23(a) and noted that because defendant was a stay-at-home parent for
over seven years, she required additional child support to maintain a proper
lifestyle for the three children. He determined that plaintiff could afford to pay
that additional amount. The judge reasoned that because "this is a high-income
case" he could deviate from child support guidelines and required plaintiff pay
$900 a week instead of $731.
In denying plaintiff's subsequent motion for reconsideration of the child
support award, the judge stated that he had
determined the reasonable needs of the children by
reference to schedule A, B, and C expenses as listed on
A-5362-17T4
7
both parties' CIS's,[4] but particularly those schedule C
expenses for the children as listed by defendant. The
court struck a reasonable balance between defendant's
certification of her current lifestyle and the joint
lifestyle of the parties during the marriage. The court
found that $847.00 per week was warranted as a
supplemental amount above the guidelines to meet the
reasonable needs of the children. The court used
$731.00 as the base support obligation. The court next
determined that an additional $847 per week would
satisfy the reasonable needs of the children. These
amounts combined to equal $1,578.00 per week, or
$6,785.00 per month. . . . The $1,578.00 per week
figure was then multiplied by plaintiff's 57% income
share, which set [plaintiff]'s share of child support
obligation at $900.00.
The judge found the North Carolina condominium constituted defendant's
premarital asset and plaintiff failed to prove marital funds were used to
contribute to the upkeep of the property. Turning to the Fidelity account valued
at $575,980.53, the judge found the funds in the account were marital assets and
subject to equitable distribution; however, he further found "plaintiff . . .
dissipate[d] a significant portion of that account," noting that "most of the
money went for his attorney[']s fees."
The judge reasoned plaintiff dissipated a "significant portion" of the
Fidelity account on attorney's fees by filing excessive and unnecessary motions
4
Case Information Statements.
A-5362-17T4
8
and additionally created "a ton of work for the experts by not cooperating with
them." Therefore, plaintiff received more of a benefit from the Fidelity account
than defendant. Based on equity and fairness, the judge found defendant should
"receive a credit of $75,000 from the value of [the Fidelity] account" but further
acknowledged he would not be awarding attorney's fees in the case because the
parties did not proceed in bad faith. The judge explained the $75,000
represented a "reclamation of the attorney[']s fees for defendant. . . ."
In his supplemental decision, the judge elaborated on his explanation of
the Fidelity account in relationship to not awarding attorney's fees. The judge
explained that plaintiff's expenses far exceeded defendant's and although he
declined to award attorney's fees, the $75,000 represented a "de facto counsel
fee award" because defendant had to borrow considerable money to finance the
litigation. Similarly, the judge denied defendant's request for attorney’s fees
because he found no bad faith existed on plaintiff's part. Rather, he found that
the attorney’s fee award was a matter of equity.
In denying plaintiff's motion for reconsideration, the judge stated,
regarding the Fidelity account,
[Plaintiff]'s aggressive 'scorched earth' approach to
motion practice and obstinate refusal to comply with
many of the experts' recommendations . . . required the
parties to expend significant marital funds to litigate the
A-5362-17T4
9
case. . . . Based on the numerous motions related to
compliance, reconsideration, and constant acrimony
that he often unilaterally imposed, the court found that
plaintiff intended to deprive [defendant] of her share of
several marital assets, including this account.
Therefore, the court found that as a matter of equity and
fairness that a modest $75,000 credit to defendant . . .
was warranted . . . .
The court notes that the value of this asset . . . as of the
filing of the complaint for dissolution, was
$575,980.53. Further, the court intended . . . this
restoration [as] . . . a partial award of attorney's fees
. . . that was clearly warranted under the circumstances
of this case.
The judge found plaintiff's $8,071.47 Fidelity IRA subject to equitable
distribution and ordered defendant receive $4,035.74. As for the 688 RSUs paid
out prior to the divorce, the judge held them subject to equitable distribution and
divided them equally. The judge found plaintiff was not eligible for any
Mallamo credits because he did not find it was warranted. He noted defendant
"was receiving $4,790 a month. As it turns out after the hearing, I think that
was low," and that plaintiff should have been paying more.
The judge also denied reconsideration of his rulings regarding plaintiff's
IRA and RSUs, reasoning that plaintiff failed to satisfy his burden that the
accounts were immune from equitable distribution.
A-5362-17T4
10
A. Child Support Issue.
Plaintiff argues the judge erred in ordering him to pay $900 a week in
child support, asserting he incorrectly determined the children's reasonable
needs. He contends the judge failed to issue sufficient findings to support its
conclusion in its motion for reconsideration decision that the children had an
overall reasonable support need of $1578 per week.
We review a trial court's award of child support for abuse of discretion.
Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012). If consistent with
the law, we will not disturb such an award unless we find it manifestly
unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the
result of whim or caprice. Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App.
Div. 2001). The findings of the trial court are binding on appeal when supported
by adequate, substantial and credible evidence. Id. at 316.
In determining the amount to be paid for child support, and the period of
support, the court in those cases not governed by court rule must consider the
following factors:
1) Needs of the child;
2) Standard of living and economic circumstances of
each parent;
3) All sources of income and assets of each parent;
A-5362-17T4
11
4) Earning ability of each parent, including educational
background, training, employment skills, work
experience, custodial responsibility for children
including the cost of providing child care and the
length of time and cost of each parent to obtain
training or experience for appropriate employment;
5) Need and capacity of the child for education,
including higher education;
6) Age and health of the child and each parent;
7) Income, assets and earning ability of the child;
8) Responsibility of the parents for the court-ordered
support of others;
9) Reasonable debts and liabilities of each child and
parent; and
10) Any other factors the court may deem relevant.
[N.J.S.A. 2A:34-23(a).]
Child support awards are ordinarily calculated pursuant to the guidelines
provided in the rules. Pascale v. Pascale, 140 N.J. 583, 593 (1995); Child
Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix
IX to R. 5:6A (2020). Where the parties' combined income exceeds the
threshold specified by the guidelines, the court must apply those guidelines up
to the threshold amount and supplement the resulting basic support award with
a discretionary sum based on the considerations outlined in N.J.S.A. 2A:34-
A-5362-17T4
12
23(a). Caplan v. Caplan, 182 N.J. 250, 270-71 (2005). The court is afforded a
great deal of discretion in that undertaking. Id. at 271-72.
In the context of high-income parents whose ability to pay is not an issue,
the dominant guideline for consideration is the reasonable needs of the children,
which must be addressed in the context of the standard of living of the parties.
Isaacson v. Isaacson, 348 N.J. Super. 560, 581 (App. Div. 2002). A balance
must be struck between the reasonable needs, in light of lifestyle, and an
inappropriate windfall. Id. at 582. The enhanced child support award in high
income cases accords with the general principle that children are "entitled to not
only the bare necessities, but the benefit of their parents' financial achievement."
Guglielmo v. Guglielmo, 253 N.J. Super. 531, 546 (App. Div. 1992). An award
for a family with net income in excess of $187,200 per year shall not be less
than the amount for a family with a net income of $187,200 per year. Child
Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix
Appendix IX-A to R. 5:6A at ¶ 20(b) (2020).
The parties' combined income exceeded the $187,200 yearly income
threshold set forth in Appendix IX-F, requiring a minimum of $731 per week of
child support for three children. Plaintiff's argument that the judge erred in
believing the $731 weekly figure constituted what plaintiff owed by himself,
A-5362-17T4
13
rather than as a total obligation for both parties, is misguided. In ruling on
plaintiff's motion for reconsideration, the judge explained the $847 weekly child
support figure, in addition to the maximum guideline figure of $731 per week,
for a total of $1578 per week, constituted the combined child support obligation
of both parties.
Nevertheless, plaintiff argues the judge failed to explain how he
determined the $1578 per week figure and similarly claims his $900 per week
support obligation was not supported by substantial credible evidence in the
record.
In ruling on plaintiff's motion for reconsideration, the judge stated he
determined the reasonable needs of the children based on both parties' CISs, but
primarily on defendant's $11,011 monthly schedule C expenses. Defendant's
overall schedule expenses were $16,896 per month. The judge used the $731
from the guidelines as a "base support obligation" and determined that an
additional $847 per week of supplemental support above the guidelines would
reasonably satisfy the parties' obligations to their children. Plaintiff 's obligation
of a $900 weekly child support payment represented fifty-seven percent of the
parties $1578 obligation.
A-5362-17T4
14
The judge attached a completed child support guideline worksheet to the
final order, but incorrectly indicated an $832 per week supplemental award,
rather than the $847 he ordered; however, a completed child support guideline
worksheet attached to the final order is not an acceptable substitute for judicial
findings on which the order must be based. Fodero v. Fodero, 355 N.J. Super.
168, 170 (App. Div. 2002).
The court's determination to supplement the child support obligation
above the Guidelines in this instance is distinguishable from Elrom v. Elrom,
439 N.J. Super. 424, 442-43 (App. Div. 2015), where we held that the "omission
of critical factual findings, supporting the basis to supplement the Guidelines
support award, impedes our review and requires a remand," and Fodero, 355
N.J. Super. at 170, where we ordered a remand because we could not "determine
the source of the figures used by the motion judge which form the foundation of
the child support calculations." Here, the judge specifically relied on each
party's CIS and plaintiff does not challenge the inclusion of any specific costs,
as was done in Elrom.
Plaintiff argues the judge cited the parties' schedule A, B and C expenses,
but did not utilize the specific numbers in those schedules in making his $847
weekly supplemental award and contends the child support award constituted a
A-5362-17T4
15
windfall to the defendant. He cites Strahan v. Strahan, 402 N.J. Super. 298, 305-
06 (App. Div. 2008), where we ordered the husband to pay ninety-one percent
of the child support award in a non-alimony divorce. In holding that the trial
court failed to make specific findings of fact necessary to sustain its decision
regarding the amount of supplemental child support, we noted that the court
failed to analyze the wife's CIS to determine what was essential for the children
or the accuracy and appropriateness of those needs. Id. at 310. "[T]he court did
not discuss what portion of those expenses was for the benefit of the children
and what portion was for the benefit of the [wife]." Ibid.Unlike in Strahan, alimony was awarded in this case. Thus, there is no
issue of whether the child support award was to benefit defendant rather than
the children, or other evidence to indicate the court's intention. In add ition,
plaintiff did not challenge defendant's claims regarding the needs of the children.
Therefore, while the judge's incorporation of the CIS by reference, without
further analysis, may not have been optimum, the factors that warranted a
remand for detailed breakdown in Strahan are absent here. Accordingly, we
affirm the trial judge's determination that plaintiff was required to pay $900
weekly in child support.
A-5362-17T4
16
B. Award of $75,000 to Defendant.
Plaintiff contends the trial judge erred in awarding defendant $75,000 as
compensation for the parties' unequal use of the Fidelity investment account to
meet their pendente lite counsel and expert fees. He argues the judge erred in
finding he dissipated the assets in the account because they were used pursuant
to court order, and if viewed as counsel fees, they were awarded without the
proper analysis. In the same vein, plaintiff maintains that the judge erred in
making new findings of fact when denying his motion for reconsideration.
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 court conducts a three-part analysis
when distributing a marital asset. Id. at 232. First, the court decides what
property is eligible for distribution, then it determines the value of the property,
and finally it 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 court 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.
A-5362-17T4
17
Thus, the court must consider, but is not limited to, the sixteen statutory
factors set forth in N.J.S.A. 2A:34-23.1. 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;
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;
A-5362-17T4
18
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;
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.]
Thus, one factor the court considers when making an equitable
distribution is the contributions of each party to the acquisition, dissipation, and
appreciation of the amount or value of the marital property. N.J.S.A. 2A:34-
A-5362-17T4
19
23.1(i). Furthermore, the court does not simply mechanically divide the marital
assets, but it weighs the unique circumstances of each case. Stout v. Stout, 155
N.J. Super. 196, 205 (App. Div. 1977). 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 applied is whether the trial
court's decision was supported by sufficient credible evidence in the record.
Rothman, 65 N.J. at 232-33. 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).
In making an equitable distribution of marital property, a court 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 his or her own benefit, with the intent of diminishing the
A-5362-17T4
20
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 directed the parties to utilize the Fidelity account, pursuant
to a court order. It is well settled that the family court may direct, pendente lite,
the parties to sell assets to fund the litigation. R. 5:3-5(c). Similarly, our
Supreme Court has specified that a trial court may exercise its discretion to order
the sale of marital assets and the utilization of the proceeds in a manner as "the
case shall render fit, reasonable, and just." Randazzo v. Randazzo, 184 N.J. 101,
113 (2005). The Court also recognized that while the proceeds could be used to
pay marital obligations, they could also be placed in escrow pending final
distribution, while emphasizing that the Family Part is a court of equity. Ibid.Plaintiff did not voluntarily dissipate the assets in the Fidelity account
with the intent to diminish defendant's share in the marital estate. Additionally,
plaintiff did not engage in any unapproved action to use the funds for his own
benefit. Thus, we cannot sustain the judge's reliance on dissipation of assets in
the equitable distribution context as the basis for the $75,000 award. See
Kothari, 255 N.J. Super. at 506 (explaining that dissipation of marital assets
occurs when a spouse uses marital property for his or her own gain, unrelated to
the marriage, when the continued relationship is in danger).
A-5362-17T4
21
Nor do we find it appropriate to undertake a counsel fee analysis. The
judge denied both parties' request for counsel fees, concluding neither a cted in
bad faith. Therefore, we view the judge's statements regarding counsel fees in
the context of the $75,000 award as dictum, but relevant in providing an
alternative basis for the award. This is particularly true since the record does
not reflect that defendant filed an affidavit of services, as required by Rule 5:3-
5(c), and the court stated that it did not have "the exact number" of the funds
that went for counsel fees. Nonetheless, a judgment will be affirmed on appeal
if it is correct, even if the court failed to provide correct reasons for the decision.
Govito v. W. Jersey Health Sys., Inc., 332 N.J. Super. 293, 321 (App. Div.
2000). Based upon our review of the record, we conclude the judge's $75,000
award should be upheld based on equitable principles. See Mamolen v.
Mamolen, 346 N.J. Super. 493, 498 (App. Div. 2002) (concluding that family
courts are courts of equity and can disregard form in favor of substance), and
we decline to disturb the court's ruling.
In this instance, the trial judge awarded defendant the $75,000 because
plaintiff filed unnecessary motions and was not cooperative with the experts,
thereby driving up the cost of attorney's and expert's fees. Since the court found
that plaintiff made greater use than plaintiff of the $575,000 in the Fidelity
A-5362-17T4
22
account, an account that would have been subject to equitable distribution, it
concluded that defendant was entitled to the $75,000 as a matter of equity.
Plaintiff asserts there is no evidence in the record to support the judge's
conclusion that he received more funds from the liquidation of the Fidelity
account to pay his counsel and expert fees. However, plaintiff filed two motions
to quash subpoenas for his employment records and two motions for
reconsiderations that he later acknowledged could have been resolved if he
communicated with defendant. In addition, he filed a motion to change the
children's pediatrician and filed a motion to dismiss the parenting coordinator
for failing to meet with him, even though he did not ask the coordinator for a
meeting.
Morover, plaintiff failed to comply with an order authorizing defendant’s
access to his bank accounts in India, did not consent to defendant's request to
have the children undergo a therapeutic evaluation, filed an order to show cause
in late 2017 to redact certain confidential information (bank account numbers),
without first asking that defendant do so voluntarily, and decided not to go ahead
with an expert's report without disclosing that fact to defendant.
We therefore find the record contains sufficient evidence to support the
judge's determination that plaintiff's conduct had an adverse impact upon the
A-5362-17T4
23
funds in the Fidelity account and the resulting equitable award in favor of
defendant. Equitable remedies are distinguished for their flexibility, unlimited
variety, and adaptability to circumstances. Sears Mortgage Corp. v. Rose, 134
N.J. 326, 354 (1993). The trial judge's application of such remedies is entitled
to deference and will not be reversed absent an abuse of discretion involving a
clear error in judgment. In re Estate of Hope, 390 N.J. Super. 533, 541 (App.
Div. 2007). Implicit in that exercise of discretion is the court's search for a just
result. Ibid. We therefore uphold the judge's $75,000 award to defendant as a
matter within the court's equitable discretion.
C. Individual Retirement Account.
Plaintiff argues the court erred in awarding defendant half of his Fidelity
IRA as part of its equitable distribution award, asserting the determination was
not supported by substantial credible evidence.
Plaintiff failed to point to any credible evidence in the record to establish
the IRA was a premarital asset. See Rothman, 65 N.J. at 232-33. The IRA was
liquidated by court order to pay for experts and fees. Plaintiff claims the account
was one that he acquired at Bristol-Myers before marriage and rolled over the
account, after he began working for Novartis. He maintains the pre-marriage
portion should be omitted from equitable distribution; however, he concedes that
A-5362-17T4
24
he did not possess any statements from Bristol-Myers Squib as to his pre-
marriage contributions.
Thus, plaintiff has failed to provide evidence in support of his partial
immunity claim. Pascale, 140 N.J. at 609; Cf. Winer v. Winer, 241 N.J. Super.
510, 526 (App. Div. 1990) (value of a plaintiff's retirement plan earned during
marriage was subject to equitable distribution where the defendant demonstrated
the amount the plan earned during that time). Without evidence of the amount
of the IRA pre-marriage, plaintiff failed to satisfy his burden of proof. We
therefore hold that the court did not err in subjecting the IRA to equitable
distribution.
D. Restricted Stock Units.
Plaintiff argues the court erred by holding the RSUs Novartis granted him
in January 2015, which vested in January 2018, were subject to equitable
distribution because the RSUs were not awarded as a result of what occurred
during the marriage. He further asserts the trial judge's findings were not
supported by adequate and credible evidence in the record.
Property qualifies for equitable distribution when it is attributable to the
expenditure of effort by either spouse during the marriage. Pascale, 140 N.J. at
609. In addition, property that is acquired after a party files for divorce but as
A-5362-17T4
25
a reward for or a result of efforts expended during the marriage, normally will
be the subject of equitable distribution. Id. at 612. The burden of establishing
the immunity of property from equitable distribution lies with the party seeking
exclusion. Id. at 609.
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).
Only where the findings were erroneous, or the determination could not
reasonably have been reached based on sufficient credible evidence in the
record, will an abuse of that discretion be found. M.G. v. S.M., 457 N.J. Super.
286, 294 (App. Div. 2018).
Assets subject to equitable distribution include stock options acquired
during the marriage. Heller-Loren v. Apuzzio, 371 N.J. Super. 518, 530 (App.
Div. 2004). The dispositive question is whether the stock options were granted
in consideration for actions undertaken during the marriage. Ibid. We recently
adopted the following "rubric":
(1) Where a stock award has been made during the
marriage and vests prior to the date of the complaint it
is subject to equitable distribution;
(2) Where an award is made during the marriage for
work performed during the marriage, but becomes
vested after the date of the complaint, it too is subject
to equitable distribution; and
A-5362-17T4
26
(3) Where the award is made during the marriage, but
vests following the date of the complaint, there is a
rebuttable presumption that the award is subject to
equitable distribution unless there is a material dispute
of fact regarding whether the stock, either in whole or
in part, is for future performance.
[M.G., 457 N.J. Super. at 302.]
The party seeking to exclude such assets from equitable distribution bears
the burden to prove that the stock award was made for services performed
outside of the marriage. Ibid. Objective evidence must be adduced to show that
the employer intended the stock to vest for future services and not as a form of
deferred compensation attributable to the award date. Ibid. Such evidence
should include, but is not limited to: testimony from the employed spouse;
testimony of the employer's representative; the stock plan; any employer
correspondence regarding the award; and the employed spouse's stock plan
statements from the commencement of the award and the date nearest to the
complaint, along with the vesting schedule. Ibid.
Plaintiff cites Robertson v. Robertson, 381 N.J. Super. 199, 203 (App.
Div. 2005), where the husband received stock options after the parties separated
and three days before the divorce complaint was filed. The stock options would
vest in one-fourth increments each year over the ensuing four years. We found
A-5362-17T4
27
the options were not subject to equitable distribution. Id. at 204-06. We noted
the husband moved from the marital home prior to starting at the job that
provided the stock options and reasoned,
[T]he conclusion is inescapable that they were offered
as an inducement to commence employment, not as
recognition for past performance with the company
. . . . There is no evidence that the vesting of these
options over a subsequent period of four years was
designed for any purpose other than as a means to
insure the [husband]'s continued employment with the
company. As such, the options in no fashion
represented compensation attributable to the couple's
joint marital endeavors.
[Id. at 205.]
However, we find the facts here are more comparable to Pascale, 140 N.J.
at 607-11, where the Court held that stock options awarded to the wife ten days
after she had filed for divorce were a form of deferred compensation obtained
as a result of efforts she had expended during the marriage, and were therefore
subject to equitable distribution. The Court rejected the wife's argument that the
majority of the shares were awarded in recognition of a job promotion that
imposed increased responsibility in the future. Id. at 607. Rather, it adopted the
trial court's conclusion that the promotion came from a result of the wife's
excellent job performance, which accrued during the marriage. Id. at 610.
A-5362-17T4
28
Plaintiff argues the 2015 RSUs were an enticement to remain at Novartis
because he could lose the RSUs if he left, and the majority of the vesting
occurred after the filing of the complaint. However, plaintiff only presented the
number of RSUs awarded and their vesting dates and failed to provide any
relevant evidence from his employer, the stock plan, or any related
correspondence, as set forth in M.G. Additionally, plaintiff failed to offer clear
evidence regarding the issue of whether the RSUs were an inducement to
continue working at Novartis or a reward for services rendered. Therefore,
plaintiff failed to overcome the rebuttable presumption that the RSUs were not
immune from equitable distribution.
Plaintiff now argues for the first time that the RSU issue should be
remanded for reconsideration in light of our decision in M.G., which was issued
after he filed his notice of appeal in this case. However, plaintiff failed to offer
sufficient evidence to support his claim that the RSUs were given in anticipation
of future services or as an inducement to continue working at the company.
Therefore, we find the judge did not abuse his discretion in determining
the 688 RSUs awarded prior to the filing of the complaint are subject to equitable
distribution. Under the circumstances, we will not upset the judge's findings
and remand simply to have him revisit this issue, particularly because the record
A-5362-17T4
29
contains sufficient evidence for us to conclude the RSUs are not immune from
equitable distribution.
E. North Carolina Condominium.
Plaintiff asserts the court erred by holding the entire value of the North
Carolina condominium was not subject to equitable distribution because
defendant paid the mortgage on the unit from marital funds. Plaintiff contends
defendant's payment of the mortgage from marital funds should subject the
condominium to equitable distribution.
In Valentino v. Valentino, 309 N.J. Super. 334, 338-39 (App. Div. 1998),
we held the wife was entitled to ten percent of the value of the husband's gas
station, even though it was a premarital asset. The mortgage on the property
was paid off throughout the marriage from income received through a separate
business. As a result, the property increased in value during the marriage. The
wife established her contributions to the home and children, and working at a
part-time job, permitted the husband to work at the gas station, which helped
increase its value. Id. at 340. See also Griffith v. Griffith, 185 N.J. Super. 382,
385 (Ch. Div. 1982) (non-owner's spouse's contribution to the enhancement of
a pre-owned asset, the marital home, could consist of mortgage pay-down during
A-5362-17T4
30
the marriage and could convert an immune, pre-acquired asset into one whose
appreciation is eligible for distribution).
Unlike Valentino, plaintiff failed to establish the condominium increased
in value during the marriage, or that his efforts allowed defendant to increase its
value. While plaintiff is accurate that defendant paid the mortgage from funds
acquired after marriage, like Griffith, the record also establishes that she
deposited the rent collected on the condominium in that same account. While
neither party established the complete value of each mortgage payment made,
or rental payment received, neither Valentino nor Griffith involved the receipt
of rental payments on the properties in question. Therefore, we find those cases
distinguishable. We conclude plaintiff failed to present substantial credible
evidence that the North Carolina condominium was not immune from equitable
distribution.
F. Mallamo Issue.
Plaintiff argues that the court erred in denying him a credit for
overpayment of pendente lite support. Plaintiff contends his pendente lite
support obligation should have terminated on June 1, 2017, after defendant
began her employment. In a January 31, 2018 order, the motion court denied
termination of the pendente lite support retroactive to June 1, 2017, but ordered
A-5362-17T4
31
plaintiff would be entitled to a Mallamo credit "at the time of equitable
distribution for any amount due and owing, as determined by the Trial Court."
However, the trial judge denied the credit after he found the $4790 monthly
pendente lite support was too low.
Plaintiff's argument that the trial judge erred in denying his request for a
Mallamo credit lacks sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E). The record clearly supports the judge's finding that the
credit was not warranted because, in light of the final decisions on alimony and
child support, plaintiff should have been paying higher pendente lite support.
As a result, plaintiff lacked any basis to claim he overpaid his pendente lite
support.
G. Therapy Issue.
Plaintiff argues the court erred in ordering him to attend individual
psychiatric therapy because it did not find parental alienation. Plaintiff contends
the court erred in requiring him to attend co-parenting therapy as a condition of
continued joint custody because the court impermissibly delegated its parens
patriae responsibility to decide custody and parenting time disputes to a co -
parenting therapist.
A-5362-17T4
32
A court may "make such order . . . as to the care, custody, education and
maintenance of the children, or any of them, as the circumstances of the case
shall render fit, reasonable and just." N.J.S.A. 2A:34-23. Pursuant to N.J.S.A.
9:2-4, a court may enter an order establishing joint custody, sole custody or any
other custody arrangement the court determines to be in the best interests of the
children. Thus, courts have "wide latitude to fashion creative remedies in
matrimonial custody cases." Beck v. Beck, 86 N.J. 480, 485 (1981). Custody
determinations are "acutely fact-sensitive." Id. at 490. Such determinations are
reviewed for abuse of discretion. Pascale, 140 N.J. at 611.
Joint custody requires that each parent "exhibit a potential for cooperation
in matters of child rearing." Beck, 86 N.J. at 498. A joint legal custodian has
an ongoing responsibility to act in a child's best interest. C. Madison v. W.
Davis, 438 N.J. Super. 20, 46 (Ch. Div. 2014). If either parent fails to meet this
responsibility, the court has the authority to order remedies including co -
parenting counseling. Id. at 45-46. As the court explained in Madison:
Joint legal custody is more than simply an honorary title
bestowed upon a parent. Rather, a joint legal custodian
has an ongoing responsibility to act in the child's best
interest, which includes reasonable communication and
cooperation with the other joint legal custodian in a
positive and constructive fashion. Hence, if two joint
legal custodians have ongoing difficulties in meeting
this very basic component of their roles, then the court
A-5362-17T4
33
may order . . . co-parenting counseling as a condition
of ongoing joint legal custody, consistent with parens
patriae jurisdiction and the court's own obligation to
protect the best interests of the child.
[Id. at 46.]
In this case, the record established well-founded concerns regarding
plaintiff's ability to co-parent and to deal with issues such as rigidity and a need
for control. Dr. Franklin expressed concern about negative comments plaintiff
made about defendant to the children, and that plaintiff appeared to be coaching
the children. Plaintiff 's own psychiatrist testified that plaintiff had compulsive
personality features and that he should engage in individual counseling.
The record established plaintiff was less than cooperative in co-parenting.
The parenting coordinator testified that co-parenting was basically non-existent
because plaintiff refused to engage with defendant. Dr. Franklin testified that
plaintiff needed to stop being resistant and to learn how to work cooperatively
with defendant. We conclude the record contains substantial credible evidence
to support the judge's decision to require individual and co-parenting
counseling. The judge did not delegate his authority to decide custody disputes.
Nor did he "improperly delegate[] unreviewable decision-making power to a
third party." P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999). The
A-5362-17T4
34
counselor only has the authority to determine plaintiff's progress, not whether
joint custody will be terminated, or parenting time reduced.
Affirmed.
A-5362-17T4
35