Opinion
DOCKET NO. A-4735-11T1
10-14-2015
LOIS B. KATZ, Plaintiff-Respondent/Cross-Appellant, v. DAVID MICHAEL KATZ, Defendant-Appellant/Cross-Respondent.
Bonnie C. Frost argued the cause for appellant/cross-respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost, on the briefs). Barbara Ulrichsen argued the cause for respondent/cross-appellant (Ulrichsen Rosen & Freed LLC, attorneys; Ms. Ulrichsen, of counsel and on the briefs; Rebecca C. Day, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-54-09. Bonnie C. Frost argued the cause for appellant/cross-respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Ms. Frost, on the briefs). Barbara Ulrichsen argued the cause for respondent/cross-appellant (Ulrichsen Rosen & Freed LLC, attorneys; Ms. Ulrichsen, of counsel and on the briefs; Rebecca C. Day, on the briefs). The opinion of the court was delivered by OSTRER, J.A.D.
Defendant David Michael Katz appeals from the Family Part's final judgment of divorce (FJD) entered on December 30, 2010; amended on June 30, 2011 (AFJD); and revised after motions for reconsideration on April 12, 2012 (RAFJD). Defendant challenges the limited duration and amount of the alimony awarded to him, as the lower earner of the two parties. He also challenges the court's equitable distribution of marital assets; in particular, he argues the court undervalued plaintiff's business. Plaintiff cross-appeals solely to contest the court's allocation to her of certain tax obligations. Having reviewed the parties' arguments in light of the record and applicable principles of law, we affirm.
I.
Plaintiff filed her complaint for divorce in July 2008 after over twenty-five years of marriage. Plaintiff is more than six-and-a-half years older than defendant; she was born in March 1953, he in December 1959. The parties have three children — two daughters, born in 1985 and 1991, and a son born in 1987. The two older children were emancipated as of entry of the AFJD. The eldest daughter graduated from law school in May 2010; the son graduated from college in May 2011. The youngest child was in the midst of her undergraduate education.
Both parties are college graduates. For most of the marriage, defendant was the primary earner, working principally as a producer and media professional with NBC, and then Prudential Insurance. In the years before the divorce filing, his income fluctuated between roughly $100,000 and $150,000, depending in large part on his earnings from a second job, which ended in 2007. The court declined to impute to defendant the income from the former second job, and determined defendant's income to be $102,000.
Plaintiff was in and out of the workplace during the marriage, taking time out to rear the children. She earned a very modest part-time income when she returned to the workforce in 1998. Her income rose after she established an independent public relations firm in 2004. She did so with defendant's assistance. Plaintiff's income soon significantly eclipsed defendant's income. The net income from her business was roughly $350,000 in 2007 and 2009, and topped $434,000 in 2008. The court predicated its alimony determination on an income of $348,000 for plaintiff.
Plaintiff's years of increased income coincided with the higher education of their two oldest children. The parties paid the entirety of their eldest child's college tuition, exceeding $20,000 annually, and contributed $55,000 a year toward her law school expenses. The two older children received automobiles and rent from one or both of their parents.
The FJD simply dissolved the marriage, and reserved decision on all issues in dispute. In the AFJD that followed, the court awarded defendant monthly alimony of $7000 for seven years, anticipating that it would cease when plaintiff reached sixty-five. The judge revised plaintiff's unallocated monthly pendente lite support obligation of $11,000, by allocating $7000 a month to alimony, retroactive to August 2010, at the end of presentation of evidence at the trial.
As for equitable distribution, the court valued plaintiff's business, Lois Katz Public Relations LLC, at $167,000, accepting the valuation offered by plaintiff's expert and rejecting the $711,000 valuation of defendant's expert. The court awarded plaintiff forty-three percent of that valuation. The parties were entitled to keep their respective retirement accounts, notwithstanding that plaintiff's accounts exceeded the value of defendant's accounts. Defendant retained other employment-related benefits, such as a stock account of $37,000, stock options, and cash accounts. The court ordered the parties to divide the "remaining balance" of a Scottrade account.
Plaintiff vacated the marital home in 2009, after defendant obtained a domestic violence restraining order against her. Defendant was permitted to remain in the home. The court ordered an equal division of the net equity in the marital home. The parties stipulated the residence's value to be $610,000. In the RAFJD, the court ordered net equity be calculated based on the mortgage debt as of the date the AFJD was entered, instead of the date of the trial. The court also set a deadline for defendant to refinance the mortgage to remove plaintiff as a debtor, and to purchase plaintiff's interest or list the property for sale.
The court ordered the parties to file a joint 2009 tax return, but provided that plaintiff was to hold defendant harmless from any additional tax liability. The court also denied plaintiff's request for contribution from defendant toward tax liabilities for 2008 and 2009. The court grounded its decision on plaintiff's failure to provide defendant full access to the books and records of her business, and her non-compliance, between November 2009 and February 2010, with the court's pendente lite order that she deposit her paycheck into the parties' joint account. At the same time, the court denied defendant's request for a credit based on plaintiff's failure to make those deposits.
The court ordered plaintiff to pay $1075 monthly support for the youngest child. The parties' income exceeded the maximum amounts under the child support guidelines. The court enhanced the guidelines amount of $194 weekly to $250 weekly. The youngest child's college expenses, including her share of rent of her own apartment, were allocated fifty-six percent to plaintiff, and forty-four to defendant.
The guidelines worksheet was apparently not attached to the AFJD, cf. R. 5:6A, and is not part of the record before us.
The court declined to compel plaintiff to contribute toward a $10,000 loan that defendant unilaterally obtained to defray part of the eldest child's expenses for her third year of law school. The court held that the child should be responsible for that debt, particularly inasmuch as the parties paid for the entirety of expenses for college, and the first two years of law school.
Aside from a credit for previously awarded fees, plus fees incurred in the domestic violence proceeding, the court ordered that the parties bear their own counsel fees.
On appeal, defendant presents the following points for our consideration:
POINT I
THE ALIMONY AWARD OF $7000/MONTH FOR SEVEN YEARS WAS INEQUITABLE AND UNJUST AFTER A 25+ YEAR MARRIAGE WHERE PLAINTIFF WAS EARNING BETWEEN $350,000/YEAR AND $450,000/YEAR AND DEFENDANT WAS EARNING $96,000/YEAR.
POINT II
JONES' AND SUBSEQUENTLY GOULD'S OPINION AS TO PLAINTIFF'S REASONABLE COMPENSATION WERE REPLETE WITH ERRORS INCLUDING MISCHARACTERIZING GOODWILL AND RISK AS COMPENSATION, MISSTATING PLAINTIFF'S EMPLOYMENT HISTORY, MARKET PRICING THE POSITION OF CEO/OWNER INSTEAD OF PUBLICIST/EMPLOYEE AND CREDITING PLAINTIFF WITH TASKS SHE DID NOT PERFORM IN 2008, THUS UNDERVALUING THE BUSINESS AND REDUCING DEFENDANT'S SHARE.
POINT III
THE COURT'S OTHER FINANCIAL DECISIONS ARE COLLECTIVELY UNFAIR AND UNJUST TO DEFENDANT ESPECIALLY CONSIDERING THE LENGTH OF THE MARRIAGE, THE ACTIVE ECONOMIC PARTNERSHIP THE PARTIES ENJOYED, PLAINTIFF'S INCOME AND HER INCOME POTENTIAL.
On cross-appeal, plaintiff contends:
The point-heading for the cross-appeal is preceded by the additional heading, "LEGAL ARGUMENT AS TO PROTECTIVE CROSS-APPEAL."
IV. THE TRIAL COURT ERRED WHEN IT FAILED TO REQUIRE DEFENDANT TO CONTRIBUTE TO THE TAXES THAT PLAINTIFF INCURRED ON INCOME UTILIZED FOR THE FAMILY'S SUPPORT IN 2008 AND 2009.
A. The Standard Of Review Governing The Allocation Of Tax Liability Is Abuse Of Discretion.
B. It Is Inconsistent And Inequitable To Permit Defendant To Share In Plaintiff's 2008 and 2009 Income Without Requiring Him To Contribute To Taxes On Said Income.
II.
A.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial courts interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
B.
We consider first defendant's challenge to the court's alimony decision.
A trial court exercises "great judicial discretion" in determining whether to award permanent alimony, "because 'no two cases are alike.'" Gnall v. Gnall, ___ N.J. ___, ___ (slip op. at 25) (2015) (quoting Bonanno v. Bonanno, 4 N.J. 268, 273 (1950)); see also Jacobitti v. Jacobitti, 135 N.J. 571, 575 (1994) ("[T]he Legislature gave courts substantial discretion in determining whether to grant alimony and in setting the amount and form in which to grant it"). We will not overturn an alimony award absent a clear abuse of discretion, a failure to correctly apply governing legal principles, or finding of facts that were clearly mistaken or lacking support in the record as a whole. Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).
Applying this deferential standard of review, we conclude defendant has presented an insufficient basis to disturb the court's alimony decision. The court reviewed each of the statutory factors provided in N.J.S.A. 2A:34-23(b). The court weighed the parties' unusual economic history. The court concluded that permanent alimony was inappropriate. In particular, the court noted that defendant had become the dependent spouse only recently; for most of the marriage, he was the primary breadwinner. Also, plaintiff was significantly older than defendant and was just seven years away from the standard retirement age of sixty-five. Plaintiff's earnings enabled the parties to rise from an upper-middle-class lifestyle to an upper-class lifestyle. The court concluded that defendant was "entitled to benefit from that increased lifestyle . . . but it should not be a permanent alimony award." The court denied reconsideration.
The judge misstated that plaintiff was eight years older than defendant, rather than six-and-a-half years older.
Defendant argues that the long-term nature of the parties' marriage compelled the award of permanent alimony. We disagree. Limited duration alimony may be appropriate only if permanent alimony is not. Gnall, supra, ___ N.J. at ___ (slip op. at 26) (citing Cox v. Cox, 335 N.J. 465, 477 (App. Div. 2000)). However, as the Court recently emphasized, the duration of the marriage "is only one factor to be considered" in the alimony determination; the court must consider all statutory factors in reaching its decision. Id. at ___ (slip op. at 32) (rejecting suggestion of a bright-line rule that permanent alimony is necessarily appropriate in the case of a marriage of long duration). "[T]he length of the marriage and the proper amount or duration of alimony do not correlate in any mathematical formula." Lynn v. Lynn, 91 N.J. 510, 518 (1982) (determining that some permanent alimony was appropriate in relatively short-term marriage, where wife had become permanently disabled). A trial court must weigh all factors, notwithstanding that "[a]ll other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded." Gnall, supra, ___ N.J. at ___ (slip op. at 26) (quoting Cox, supra, 335 N.J. Super. at 483).
What often makes the length of a marriage a significant factor in the alimony calculus is not simply the number of years two parties are joined in matrimony, but the length of time one party economically depends on the other. See Gonzalez-Posse v. Riccardulli, 410 N.J. Super. 340, 353 (App. Div. 2009) ("[p]ermanent alimony is generally awarded in a marriage of long duration when there is economic need, in recognition of the increased earning capacity of the supporting spouse at the cost of the supported spouse's lost economic opportunities."). Alimony is designed to address economic dependency. See Lepis v. Lepis, 83 N.J. 139, 155 (1980) ("The extent of actual economic dependency, not one's status as a [spouse], must determine the duration of support as well as its amount."); Reese v. Weis, 430 N.J. Super. 552, 569 (App. Div. 2013) ("It has long been held that alimony is awarded because of an 'actual economic dependency' and not because of one's status as a spouse.") (quoting Lepis, supra, 83 N.J. at 155). In a long-term period of economic dependency, the supported spouse becomes accustomed to a particular life-style, and may sacrifice his or her own economic potential, while supporting that of the partner.
Usually, the two time periods — of economic dependency and marriage — are the same. Unusually, in this case, they were not. While the overall length of the marriage was long, defendant's period of dependence on plaintiff was short. Also short-lived was the parties' higher end lifestyle. Defendant did not sacrifice the development of his own skills or earning capacity for the benefit of plaintiff's. Under these circumstances, and in view of the court's weighing of all the statutory factors, we discern no error in the court's decision that permanent alimony was unjustified.
This is so, notwithstanding that defendant may have ceased working second jobs when he contributed to "back office" functions of plaintiff's business. He also shared in the benefits of that business during the marriage.
We also reject defendant's challenge to the length of the limited duration period. The court anticipated that the period would end as plaintiff reached the usual retirement age. Whether plaintiff continued to work thereafter — at the same grueling pace that she had been working, or at a reduced pace — is of no moment. The court determined that a seven-year period of support was equitable. We note that the seven-year term would exceed the period of time in which defendant was supported by plaintiff during the marriage. Moreover, despite the parties' substantial pooled income, and their lack of debt other than the remainder of the mortgage on the marital home, plaintiff had relatively modest retirement savings. The court recognized that as a self-employed individual, she had a need to increase her retirement savings, and significantly less time than defendant in which to do so.
Defendant also challenges the court's determination of the $7000 monthly amount. Defendant argues that the court failed to adequately consider defendant's needs to replicate the marital lifestyle, and plaintiff's ability to pay. We are unpersuaded.
Alimony is intended to enable a supported spouse to "achiev[e] a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000); see also Steneken v. Steneken, 183 N.J. 290, 299 (2005) (following Crews "reasonably comparable" formulation); Weishaus v. Weishaus, 180 N.J. 131, 140 (2004) (same); J.E.V. v. K.V., 426 N.J. Super. 475, 485 (App. Div. 2012) (same); but cf. Gnall, supra, ___ N.J. at ___ (slip op. at 4) (citing Crews for the proposition that alimony is designed to "allow the dependent spouse to live the same lifestyle to which he or she grew accustomed during the marriage.") (emphasis added).
The court must also strive to maintain the marital lifestyle of the payor as well. Crews, supra, 164 N.J. at 26 ("The court should state whether the support authorized will enable each party to live a lifestyle 'reasonably comparable' to the marital standard of living.") (emphasis added) (citation omitted). Finally, after the court has applied the statutory factors and reached an alimony amount that achieves a reasonably comparable lifestyle, and also effected a "fair and just division of the marital assets," the court of equity must review the overall result to assure that it is "fair under the circumstances and congruent with the standards set forth in N.J.S.A. 2A:34-23 (alimony) and -23.1 (equitable distribution)." Steneken v. Steneken, 183 N.J. 290, 302 (2005).
The court's award of $7000 monthly was within its broad discretion. It was based on a weighing of the statutory factors, and findings of fact — in particular, findings regarding the parties' respective incomes — that were adequately supported by the record evidence. The court concluded that neither party would be able to replicate the marital lifestyle they enjoyed when they pooled their incomes in a unified household. The court considered the parties' respective claims regarding their budgets. The court found that plaintiff showed a budget of almost $27,000, of which $11,000 was allocated to pendente lite support, and $7000 to retirement contributions. The court noted that defendant contended he had a lifestyle of over $25,000 a month in a July 2010 case information statement. The court discounted that budget, noting that it included college expenses for the children that had been eliminated by the time of decision.
However, we note that the budget contained additional non-educational costs associated with the children. It also contained other questionable items. Several entries — such as the vacation budget — was virtually the same as it was for the joint marital lifestyle of five people. The sports and hobbies budget actually increased, from $829 to $1115 a month.
We recognize that the trial court in its decision did not scrutinize the parties' respective budgets line by line. However, the goal is to achieve a "reasonably comparable" lifestyle; not to replicate it dollar for dollar. Crews, supra, 164 N.J. at 11. Assuming an earned annual income of $102,000, and a monthly alimony award of $7000, defendant would have a gross income of $186,000 a year. The youngest and sole unemancipated child had just two years of college remaining. We are satisfied that with an income of $186,000 and soon no child support responsibilities, he would be able to enjoy a lifestyle reasonably comparable to the upper-middle-class lifestyle that he enjoyed during the marriage.
To the extent not addressed, defendant's remaining points regarding alimony lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
C.
We consider next defendant's challenge to the court's equitable distribution of marital assets. The distribution of marital assets is not a routine or mechanical exercise; it requires sensitivity to the equities of the case. See Rothman v. Rothman, 65 N.J. 219, 232 n.6 (1974) ("Rejecting any simple formula, we rather believe each case should be examined as an individual and particular entity."); Devane v. Devane, 280 N.J. Super. 488, 493 (App. Div. 1995); Stout v. Stout, 155 N.J. 196, 205 (App. Div. 1977); Gibbons v. Gibbons, 174 N.J. Super. 107, 114 (App. Div. 1980), rev'd on other grounds, 86 N.J. 515 (1981). An unequal division of assets may be appropriate under the circumstances. See, e.g., Winer v. Winer, 241 N.J. Super. 510, 522-24 (App. Div. 1990) (affirming a seventy-five percent allocation to husband, and twenty-five percent allocation to wife); Clark v. Clark, 324 N.J. Super. 587, 596-97 (Ch. Div. 1999) (stating that debts may be unequally allocated even where assets are not).
"The goal of equitable distribution . . . is to effect a fair and just division of marital assets." Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005). "In going about this task, the court must decide what specific property each spouse is eligible to receive by way of distribution; the value of such property for purposes of distribution; and how such allocation can most equitably be made after analysis of the factors set forth in N.J.S.A. 2A:34-23.1." Sauro v. Sauro, 425 N.J. Super. 555, 572-73 (App. Div. 2012), certif. denied, 213 N.J. 389 (2013). The end result need only reflect that the "trial judge . . . appl[ied] all the factors set forth in N.J.S.A. 2A:34-23.1 and distribute[d] the marital assets consistent with the unique needs of the parties." Devane, supra, 280 N.J. Super. at 493.
Our review is limited to determining whether the court abused its broad discretion, or reached a result "bottomed on a misconception of law or findings of fact that are contrary to the evidence." Sauro, supra, 425 N.J. Super. at 573 (internal quotation marks and citation omitted). We also apply a deferential standard of review to a trial court's assessment, as fact-finder, of expert testimony. The credibility of an expert and the weight or value to be accorded the expert's testimony lie within the exclusive province of the trier of fact. Cnty. of Middlesex v. Clearwater Vill., Inc., 163 N.J. Super. 166, 173-74 (App. Div. 1978) ("[T]he trial judge as the fact finder is not bound by the opinion valuation of the experts on either side."), certif. denied, 79 N.J. 483 (1979). A judge as fact-finder is free to accept or reject all or part of an expert's testimony. Ibid. See also State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005).
The principal issue on appeal pertaining to equitable distribution relates to the court's valuation of plaintiff's business. The parties' respective experts valued the business by using a capitalization of income approach. To calculate the income to be capitalized, each expert estimated the cost of replacing plaintiff, which was then subtracted, along with other expenses, from the gross income. Plaintiff's expert opined that the reasonable compensation of a replacement employee would equal no less than $374,000; defendant's expert set the compensation amount at $160,000. Consequently, plaintiff's expert posited a lower net income and a business value of $167,000. Defendant's expert found a value of $711,000.
The trial court accepted the opinion of plaintiff's expert. There was sufficient record evidence to support the judge's conclusion. Plaintiff's public relations firm was essentially a one-woman operation, although defendant assisted in the start-up and other tasks. The costs of sales were minimal. Plaintiff principally worked to place clients as interviewees on news programs. Ingredients to her success included her contacts in the news media, her ability to generate and maintain clients, and her dedication to servicing her clients. She was on call virtually any time there was breaking news that presented an opportunity for a client.
The judge discounted the opinion of defendant's valuation expert, who relied in turn on the opinion of a compensation expert. The court found that the compensation expert incorrectly assumed that plaintiff performed tasks limited to those she performed as a lesser-earning staffer of another public relations firm. The judge stated, "I am persuaded that Ms. Katz performed a much greater role in generating clients and in maintaining those clients and servicing them in a way that maintained their satisfaction with her firm" than she did in her previous position. The court found that plaintiff also worked longer hours, on weekends and nights. The court concluded that the more reasonable compensation figure, to be used in the business valuation calculation, was $375,000. Consequently, the court accepted the valuation based thereon of $167,000.
The record supported the finding that plaintiff was not just any employee. She left a staff-position of another firm, where she was paid less than $20 an hour, and quickly built a business which generated an income of over $350,000. She did so based on an apparently special skill-set that involved not only doing the job, but attracting clients and maintaining relationships with them. The court was justified in rejecting the premise that $160,000 would be enough to attract someone of similar skills; and rejecting the valuation based thereon.
D.
We briefly consider other issues raised by defendant pertaining to equitable distribution. The court did not abuse its discretion in declining to allocate half of the $10,000 debt that defendant incurred to assist the eldest child in defraying the cost of attending her last year of law school. Cf. Jacoby v. Jacoby, 427 N.J. Super. 109, 116 (App. Div. 2012) (stating that courts have broad discretion in allocating college expenses). We recognize that the parties were dedicated to supporting their children's college and graduate education. However, as the court noted, it was not unreasonable to require the child to assume responsibility for the loan, in light of the substantial contributions of her parents. We note as well the estranged relationship between the daughter and her mother; and her presumed capacity to repay the loan. Cf. Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).
Defendant also contends the court erred in using the parties' pretrial stipulation of $610,000 as the value of the home, but the mortgage balance as of the date of the AFJD, as the basis for calculating the price defendant must pay plaintiff to remain in the home. Defendant argues the home decreased in value between the close of evidence and entry of the AFJD. We discern no abuse of discretion. There is no record evidence to support the claim of a reduction in value. Moreover, both sides shared the risk of fluctuation while decision was pending. Furthermore, the revision of the mortgage balance was not unwarranted, inasmuch as plaintiff's support payments contributed to the reduction, and defendant enjoyed the use of the home.
We also reject defendant's challenge to the court's distribution of retirement assets. Plaintiff's account in 2008 exceeded the value of defendant's, but defendant was also permitted to retain all the value of his employer's stock plan. Although that did not entirely equalize the value of these assets, the remaining difference was not unjustified. Plaintiff had fewer years to accumulate retirement savings. Moreover, as discussed above, the division of assets in equitable distribution is not a mechanical exercise. We are satisfied that the trial court did not mistakenly exercise its discretion in dividing retirement assets.
Defendant also contends the court should have awarded a credit of almost $30,000 in pendente lite spending he incurred between November 2009 and February 2010, when plaintiff failed to deposit her income into their joint account as ordered by the court. We discern no error, particularly inasmuch as the court held plaintiff solely responsible for paying the parties' incomes taxes for 2008 and 2009 as a result of her failure to comply with court orders.
On cross-appeal, plaintiff urges us to reverse the court's denial of plaintiff's request for contribution of $65,000, toward the tax liability she incurred in 2008 and 2009.
Defendant's remaining arguments with respect to equitable distribution lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
E.
Defendant argues the trial court erred in declining to award him $95,000 in attorney fees. "We will disturb a trial court's determination on counsel fees only on the rarest occasion, and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (internal quotation marks and citation omitted). Defendant has failed to surmount that high threshold. The court found that both parties incurred substantial fees and defendant had the ability to pay his fees from his assets and alimony. The court did not find bad faith on either side. The court noted that plaintiff was slightly more successful than defendant. Defendant did incur fees related to enforcement, but those were separately awarded.
A certification of services for this amount was not provided in the record. --------
F.
Plaintiff argues on cross-appeal that the court erred when it determined that defendant should not be liable for any of the parties' taxes for 2008 and 2009. Plaintiff expressly presents the argument as a "protective cross-appeal," stating that "[i]f any portion of [defendant's] cross-appeal is granted," then we should reverse the court's determination as to plaintiff's responsibility for the taxes in 2008 and 2009. Given our disposition of defendant's appeal, we decline to address in any detail the cross-appeal, and affirm the court's allocation of tax liability for the reasons stated in the court's opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION