Opinion
DOCKET NO. A-1271-13T4
06-17-2015
SEAN K. MCNAMARA, Plaintiff-Respondent, v. ANCA MCNAMARA, Defendant-Appellant.
Michael S. Harwin argued the cause for appellant. Lynn S. Muller argued the cause for respondent (Muller & Muller, attorneys; Ms. Muller on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1711-13. Michael S. Harwin argued the cause for appellant. Lynn S. Muller argued the cause for respondent (Muller & Muller, attorneys; Ms. Muller on the brief). PER CURIAM
Defendant Anca McNamara appeals from her amended final judgment of divorce (FJOD) from plaintiff Sean K. McNamara. She challenges the family court's ruling that, for purposes of the Qualified Domestic Relations Order (QDRO) to allocate his pension, their marriage ended on their date of separation. Because governing case law precludes use of that date, we reverse and remand.
I.
The parties were married in June 2003. No children were born of the marriage. The parties separated in December 2006. Plaintiff fathered a child with another woman in November 2008.
Plaintiff filed his first complaint for divorce on June 13, 2008, but never effected service on defendant. He filed his second complaint for divorce on April 18, 2011, but again never effected service. He filed his third complaint for divorce on February 13, 2013, effected service, and commenced this action.
Defendant filed a motion for pendente lite support, certifying as follows. She attempted suicide in February 2006. This caused cardiac arrest, required a liver transplant, and put her in a month-long coma. After she was released from the hospital in April 2006, she discovered plaintiff was having an affair. Defendant was later declared disabled by the Social Security Administration, and she experienced ongoing medical issues requiring surgery. Although she had medical insurance coverage through plaintiff's employment as a police officer, he cancelled her coverage in September 2008. Plaintiff refused to endorse checks issued by the medical insurer for payment to defendant's providers, leaving her with large bills. Plaintiff denied these allegations in his certification.
The family court ordered plaintiff to reinstate defendant's medical insurance, and to endorse any checks reissued by the insurer. The court also ordered plaintiff to pay defendant support pendente lite.
On September 30, 2013, the day the divorce trial was scheduled to commence, the parties and the family court discussed a potential resolution of the case and settled almost every issue. Plaintiff's counsel stated their agreement as follows:
The parties were married on June 27, 2003; the marriage ended in December 2006. [Defendant] will get a QDRO, which will be — the cost of which will be shared by the parties for coverture during that time.
Secondly, there were certain bills that [defendant] incurred. She is going to file bankruptcy. We have picked — I have picked a law firm who specializes in bankruptcy to do it . . . . [Plaintiff] will pick up the retainer, which I have been told is $3,200.
There will be alimony for two and one half years at $1,000 a month. There will be an upfront payment of $3,500.
Although plaintiff's counsel stated "[t]hat's the entire settlement," defendant's counsel clarified three items. First, the $3200 was to cover the entire cost of the bankruptcy. Second, plaintiff was to provide proof he paid all the pendente lite support. Third, defendant's counsel stated, "the final issue is the Court said it was going to call a date for the QDRO . . . termination date."
The family court agreed "[t]he issue in this case, and virtually the only issue in this case, is the end date of the marriage." The court decided that issue in an oral opinion. The court noted the parties "ceased living in the same place together in December 2006." The court stated "the certifications indicate for some period of time [thereafter], you may have enjoyed a dinner together, [] you may have engaged in intimacy for some time thereafter, or there may have been some payments made by the plaintiff to the defendant as contribution to rental that was going on." "But, as far as the Court is concerned, the parties have maintained separate lives, separate economic lives, separate emotional lives." The court found nothing in the paperwork to indicate "that these parties ever lived jointly thereafter" or "discussed finances with one another. So, this Court's position is that the end date for the value of the asset is the date where there is no longer a marital partnership." The court found the date was December 31, 2006.
It is unclear to what certifications the court was referring. Both parties inform us the only certifications submitted in the case were those concerning the pendente lite motion.
The court added that because plaintiff's pension was a passive asset, defendant was entitled to share in "whatever goes in and what the increases are during the period of time that the two of you are a marital enterprise."
Defendant's counsel asked the family court: "for the equitable distribution, did you call the date as December of '06 rather than the filing of the first complaint?" The court agreed, repeating the date it chose was December 31, 2006. In reviewing the grounds for divorce, the court reiterated it "previously made a determination that" was the date.
The family court found grounds for divorce, noted the parties' oral agreement, and entered a FJOD. Plaintiff's counsel drafted a written settlement agreement stating that "the marriage ended on the 31st of December 2006," and that the QDRO for plaintiff's pension "shall cover the time of the marriage June 27, 2003 until December 31, 2006, the end date of the marriage, a[s] determined by the Court on September 30, 2013."
On October 23, 2013, the parties corrected and signed the settlement agreement in court. The family court found their agreement was knowingly and voluntarily. The court incorporated the agreement into an amended FJOD.
Pursuant to our June 10, 2014 order, plaintiff may seek compensation from plaintiff for the costs of obtaining and supplying the necessary October 23, 2013 transcript. Under our February 14, 2014 order, plaintiff may seek public reimbursement of the transcription cost. See R. 2:5-3(d).
On November 12, 2013, defendant filed a notice of appeal from the September 30 and October 23 orders. The family court filed a supplemental written opinion pursuant to Rule 2:5-1(b).
II.
In opposing defendant's appeal, plaintiff makes three preliminary contentions. First, he claims it was uncontroverted that the marriage ended in December 2006. However, defendant's filings merely stated that December 2006 was the date when plaintiff vacated the marital residence and the parties separated. In any event, the end date of the marriage remained at issue on the day of trial. When plaintiff's counsel said the marriage ended in December 2006, defendant's counsel corrected him and reiterated that the court would determine the marriage's termination date. The court decided that contested issue. In its supplemental opinion, the court reiterated that "[t]he only issue in this case was the termination date of the marriage," and that "[t]his Court determined that the parties' marriage terminated on December 31, 2006."
Plaintiff also notes that, in response to an interrogatory asking "the date, place and reason or cause of termination or dissolution" of "any marriages by you," defendant answered "December 3rd, 2006, reason for termination is abandonment and being unfaithful." It is unclear whether defendant was referring to something other than their physical separation. The family court made no reference to this interrogatory answer.
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Second, plaintiff argues that the parties' settlement agreement should be enforced. However, as set forth above and reiterated in the court's supplemental opinion, the parties could not agree on the marriage's termination date, and "entered into a voluntary settlement of all other issues." The court, not the parties, decided the termination date.
Plaintiff cites the questioning of defendant concerning the agreement. On September 30, she initially said she was "not sure" the agreement was fair and reasonable. However, after the court explained how the alimony amount was determined, she stated it was fair and she was voluntarily entering into the agreement. On October 23, she reiterated the settlement agreement was fair. Nonetheless, the marriage's termination date was decided not by agreement, but by the court. There was no questioning whether the parties thought the court's decision was fair.
Plaintiff notes the marriage termination date was incorporated into the written settlement agreement, and was not altered when the parties corrected other portions. However, as the agreement noted, the date was "determined by the Court." The parties could not correct the family court's decision, except by appeal.
Finally, plaintiff points out the written agreement's preliminary language that the parties "have agreed upon a full and complete property settlement which shall obtain and be binding both parties hereto." The court's supplemental opinion states that "the parties agreed to be bound by this Court's determination as to the termination date of the marriage."
If the parties had agreed to be bound by the family court's determination by waiving all rights of appeal, it arguably would be appropriate to hold them to that agreement. "'New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies.'" J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). Moreover, "'a party may, by express agreement or stipulation before trial or judgment, waive his right to appeal.'" Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 154 N.J. 141, 147 (1998) (citation omitted). "'The intention and agreement to waive the right of appeal must be clear, and there must be sufficient consideration.'" Ibid. (citation omitted).
There is nothing in the record demonstrating the parties waived their rights to appeal the trial court's determination of the marriage's termination date. There was no colloquy waiving such rights. Indeed, at oral argument before us, both counsel agreed there was no discussion about waiving the right to appeal. The court gave no indication that its decision was unappealable, either in its oral opinion, or in its supplemental opinion in response to defendant "appealing this Court's September 30, 2013 decision as to the termination date of the parties' marriage for purposes of equitable distribution of [plaintiff's] pension." Absent a waiver of appeal, the court's decision is appealable.
Third, plaintiff asserts that, pursuant to the parties' agreement, he gave up the right to trial and made alimony and other payments. However, plaintiff agreed to waive trial and make those payments before leaving the decision of the marriage termination date to the family court. Thus, plaintiff's claims of reliance and unjust enrichment fail. Accordingly, we reject plaintiff's preliminary arguments and address the merits.
III.
As we recently reiterated in N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288 (App. Div.), certif. denied, 218 N.J. 275 (2014):
"[W]e generally 'defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a "feel of the case" that can never be realized by a review of the cold record.' Moreover, we recognize that '[b]ecause of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding.' Nevertheless, when no hearing takes place, no evidence is admitted, and no findings of fact are made, different principles apply. On those rare occasions, appellate courts need not afford deference to the conclusions of the trial court."Appellate courts "do not pay special deference to [a family court's] interpretation of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012). We must hew to that standard of review.
Id. at 294 (quoting N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (citations omitted)).]
Under N.J.S.A. 2A:34-23(h), a court may award the parties "an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage." Interpreting the words "during the marriage," our Supreme Court decided it "would be unworkable" to have a rule that the marriage ends after "there was an irretrievable breakdown of the marriage or after a cause of action for divorce had arisen." Painter v. Painter, 65 N.J. 196, 217 (1974). The Court thought "the better rule to be that for purposes of determining what property will be eligible for distribution the period of acquisition should be deemed to terminate the day the complaint [for divorce] is filed." Id. at 218. "[T]he Painter rule remains the most practical rule to ascertain when a marriage has ended for the purposes of determining those assets acquired during the marriage and therefore, subject to equitable distribution." Genovese v. Genovese, 392 N.J. Super. 215, 225 (App. Div. 2007).
"The Painter rule was later modified in those instances where the parties entered into a written or oral agreement to separate and distribute marital assets prior to filing a complaint for divorce." Id. at 224 (citing DiGiacomo v. DiGiacomo, 80 N.J. 155, 159 (1979), Smith v. Smith, 72 N.J. 350, 361-62 (1977), and Carlsen v. Carlsen, 72 N.J. 363, 370-71 (1977)). Here, however, "[t]here is only a physical separation not accompanied by a written or oral separation agreement, as in Carlsen, Smith, and DiGiacomo, nor is there any actual distribution of the marital assets." Portner v. Portner, 93 N.J. 215, 220 (1983).
The Supreme Court has "consistently held that 'mere physical separation alone is an insufficient indication that a marriage is effectively at an end.'" Id. at 222 (quoting Brandenburg v. Brandenburg, 83 N.J. 198, 207 (1980)). In Painter, the Supreme Court "held that the terminal date of the marriage was not the date the [parties'] 18-month period of separation began, but the date the complaint was filed." Portner, supra, 93 N.J. at 221. The Court "reaffirmed this position in Brandenburg," and again in Portner. Id. at 221-23 (separation for over five years, including the husband's move out of state, did not terminate the marriage).
The family court here acknowledged the Painter rule, but instead relied on our opinion in Brandenburg v. Brandenburg, 167 N.J. Super. 256 (App. Div. 1979), rev'd, 83 N.J. 198 (1980). In Brandenburg, the parties "live[d] separate and apart from each other . . . and did not cohabit as husband and wife" for about ten years. Id. at 259. We regarded the ten-year separation as "'incontrovertible evidence that the marital enterprise is no longer viable.'" Id. at 262 (citation omitted). We held "the termination date for the identification of distributable assets is the point of time when it can be said that the marriage is factually dead." Id. at 261. We further ruled that, where "the parties separated under a mutual oral understanding and did not cohabit for a period of ten years, the marital enterprise is as lacking in viability as it would have been with an accompanying written agreement." Id. at 262. We found that "[u]nder such circumstances it would be 'clearly irrational' to include as distributable assets property acquired by the husband years after such a continuous and final breakdown of the normal marital relationship." Id. at 262-63 (quoting Smith, supra, 72 N.J. at 361). The family court here quoted these rationales to support its ruling.
However, the Supreme Court reversed our decision in Brandenburg, rejecting those rationales. Brandenburg, supra, 83 N.J. at 203, 206-11. The Supreme Court condemned our reasoning that "an oral agreement to separate accompanied by physical separation proves that the marriage is 'dead'" as "a virtual abandonment of the rule in Painter that designates the date of the divorce complaint as the end of the marital partnership." Id. at 206. The Court ruled a ten-year "separation alone is an insufficient indication that a marriage is effectively at an end." Id. at 207. The Court reiterated that Painter had rejected the "'breakdown of the marriage'" as an appropriate date, and that Smith found it "'clearly irrational'" only to ignore "a formal separation agreement." Id. at 205 (citation omitted). The Court added that "when an agreement is not written, only the actual division of marital property pursuant to that agreement will be considered sufficient evidence that the marital partnership is no longer viable." Id. at 208.
The family court recognized the Supreme Court reversed a portion of our decision in Brandenburg. Nonetheless, the family court found support in the Court's comments that "where the parties to a marriage have completely divided their assets, it would be grossly inequitable to include later acquired assets as part of the marital estate," and that "[i]f the parties have separated in fact and divided their property pursuant to an oral agreement, assets acquired afterwards are not eligible for equitable distribution." Id. at 208-10. However, nothing in the record here shows such an oral agreement or a complete division of assets.
The family court asserted "[a]ll personal belongings were divided." The court did not specify the source of that assertion. In any event, it is not dispositive. In Brandenburg, despite the parties' ten-year separation, the Supreme Court required "an actual distribution of assets" pursuant to an oral agreement. Id. at 208. The Court added "[s]ince a partial distribution would not necessarily demonstrate the end of the marital partnership, an agreed distribution must involve 'a large part of [the] marital assets.'" Id. at 209 (quoting DiGiacomo, supra, 80 N.J. at 159). Here, nothing in the record indicates the parties' personal belongings constituted all or a large part of their marital assets, especially as the distribution of the pension remained unresolved.
In addition, the family court stated that, after the parties separated in December 2006, "they lived separate lives, physically, emotionally, and financially from that date forward." The court also stated:
At no time from December 2006 until the filing of the third complaint did Defendant seek any form of support from the Plaintiff. Moreover, at no time from December 2006 until the filing of the third complaint did Defendant seek health insurance coverage from the Defendant despite significant health issues.
These statements are difficult to reconcile with the record. As set forth above, defendant certified she had medical insurance coverage from defendant from December 2006 until he cancelled it in September 2008, and that defendant refused to endorse the medical insurer's checks to pay for defendant's medical care, causing her to incur large debts. Based on that certification, the family court ordered plaintiff to reinstate defendant's medical insurance and to endorse the checks. Moreover, in deciding the marriage termination date, the court stated that after December 2006, the parties "may have enjoyed a dinner together" and "engaged in intimacy for some time" and that there "may have been some payments made by the plaintiff to the defendant." Such facts indicate the December 2006 separation did not immediately result in completely separate lives emotionally, physically, or financially.
It is thus unclear whether the family court properly reached that conclusion. However, resolution of such issues is precisely the inquiry the Supreme Court eschewed in Brandenburg:
Judicial inquiry into the circumstances of a separation would introduce all the difficulties we have consistently sought to avoid. Case-by-case searches for the elusive point when a marriage disintegrates would be necessary. Trial courts would be embroiled in analyzing the entire course of events during the period of separation. Any contact between the spouses would require scrutiny. Much of the evidence would come from the parties themselves; credibility and corroboration would be persistent problems. Any examination of the nature and meaning of the parties' separation would require extraordinary amounts of judicial time and energy. Because of the character of the evidence which would be involved, the resulting adjudications would be neither reliable nor consistent.To avoid such inquiries, the Court ruled that "[t]he pragmatic considerations which guided our choice of the termination date in [Painter] persuade us to retain the presumption that the marital partnership continues until a complaint for divorce is filed." Id. at 206 (citing Painter, supra, 65 N.J. at 217).
[Id. at 207.]
The Supreme Court's pragmatic considerations apply here. They bar the family court's reliance on the alleged completeness of the parties' separation. Given the absence of a written or oral separation agreement distributing all or most of the marital assets, we are compelled to reverse the family court's ruling that the parties' marriage ended on the date of their December 2006 separation. Instead, we must apply the Supreme Court's "bright line rule of Painter," Brandenburg, and Portner "that the date on which a divorce complaint was filed fixes the marital termination date for equitable distribution purposes." Pascale v. Pascale, 140 N.J. 583, 609 (1995).
IV.
Here, plaintiff filed three complaints for divorce. The Supreme Court has held, "under the Painter rule in order for a divorce complaint to mark the end of the marriage for the purposes of equitable distribution, the complaint must commence a proceeding which culminates in a final judgment for divorce." Portner, supra, 93 N.J. at 220. Thus, the Court in Portner refused to base the marriage termination date on the filing of a complaint for divorce that "was dismissed for lack of prosecution because the husband was unable to prove a cause of action." Id. at 216-17.
Unlike plaintiff's 2013 complaint, which alleged irreconcilable differences, plaintiff's 2008 and 2011 complaints alleged separation for eighteen months as the ground for divorce. Even if those earlier complaints pled a valid cause of action, Portner's holding still applies because neither of those earlier complaints "culminate[d] in a final judgment of divorce." Id. at 220.
Moreover, many of the justifications for the Court's holding in Portner are equally applicable where a party fails to serve a divorce complaint. "[A]n event that marks the end of a marriage for the purpose of equitable distribution should reflect an unconditional intent to end the marriage. The mere filing of [an unserved] complaint does not signify such unconditional intent." Id. at 221. Allowing unserved complaints to end the marriage would make it "legally possible for a spouse, by filing a [unserved] claim, to circumvent the Legislature's intent and deprive his or her spouse of the protection intended to continue during their marriage under N.J.S.A. 2A:34-23." Id. at 222. "A rule that allows one spouse to file an [unserved] divorce complaint unilaterally and thereby to terminate the other spouse's claim to marital assets is manifestly unfair." Id. at 221. "By adhering to the rule that only a [served] divorce complaint that culminates in a divorce is sufficient to terminate a marriage for purposes of equitable distribution, we significantly reduce the possibility for injustice and ensure that the Legislature's intent is not thwarted." Ibid.
We have found exceptions to the Portner bright-line rule in extreme cases. In Genovese, supra, the plaintiff filed a divorce complaint in New York State which resulted in the entry of a judgment of divorce (JOD), after which the plaintiff remarried. 392 N.J. Super. at 218. A New York appellate court reversed the JOD for insufficient evidence of abandonment. Ibid. Later, the plaintiff filed a divorce complaint in New Jersey which resulted in an FJOD. Ibid. The New Jersey family court used the filing date of the New York complaint as the end date of the marriage. Id. at 221. We affirmed, stressing that "not only was a contested divorce action filed and trial held, but also after entry of the New York JOD, defendant remarried." Id. at 226. We noted "it is without question that the New York divorce action was filed to end the marriage, not for the 'manifestly unfair' purpose of terminating defendant's interest in plaintiff's pension assets." Id. at 226-27 (quoting Portner, supra, 93 N.J. at 221). Further, we ruled "the mechanical application of the Painter bright-line rule works an injustice" given the plaintiff's remarriage. Id. at 227.
This case bears no resemblance to Genovese. Here, plaintiff's unserved 2008 and 2011 complaints did not lead to a contested divorce action, a trial, a JOD, or remarriage. Moreover, because plaintiff failed to serve those complaints, it is not clear they were "filed to end the marriage" rather than "for the 'manifestly unfair' purpose of terminating defendant's interest in plaintiff's pension assets." Id. at 226-27. Rather, the facts here merely evidence "a 'mere physical separation,'" and present "the problems posed in Painter, Brandenburg, and Portner in demarcating the end of the parties' marriage," to which the Painter rule "remains the most practical" and applicable standard. Id. at 225-26 (quoting Brandenburg, supra, 83 N.J. at 207).
Finally, we note the family court's supplemental opinion commented that after plaintiff filed his 2008 complaint, defendant "evaded service." An argument could be made that, just as one spouse cannot unilaterally terminate the other spouse's claim to marital assets by failing to serve a divorce complaint, a spouse cannot unilaterally prevent the termination of a claim to marital assets by evading service of a filed divorce complaint.
However, neither side has raised that argument. The family court made its comment only in relating the procedural history, and did not attach any significance to it. Further, the 2008 affidavit of service shows only three service attempts over two days, which would not necessarily show evasion. There is no indication plaintiff made renewed efforts at personal service, or employed alternate methods of service. See R. 4:4-4(b), -5. Rather, plaintiff waited almost three years before filing the 2011 complaint, which he made only a single attempt to serve at an apparently incorrect address. He then waited almost two more years before filing the 2013 complaint. See Portner, supra, 93 N.J. at 221 (finding no unconditional intent to end the marriage where the plaintiff waited four years after his two complaints for divorce were dismissed).
Accordingly, we hold that the parties' marriage did not terminate until February 11, 2013, when plaintiff filed the complaint which "commence[d] a proceeding which culminate[d] in a final judgment for divorce." Id. at 220. We reverse the order of the family court and remand for proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION