Opinion
DOCKET NO. A-3786-12T4
11-05-2015
CAROL ANN MIREIDER, Plaintiff-Appellant/Cross-Respondent, v. STEPHEN J. LANGAN, Defendant-Respondent/Cross-Appellant.
Robert A. Abrams, P.A., attorneys for appellant/cross-respondent (Mr. Abrams, on the brief). Law Offices of O'Toole & Gunteski, LLC, attorneys for respondent/cross-appellant (Michael J. Gunteski, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent, Accurso and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. FM-13-1250-08. Robert A. Abrams, P.A., attorneys for appellant/cross-respondent (Mr. Abrams, on the brief). Law Offices of O'Toole & Gunteski, LLC, attorneys for respondent/cross-appellant (Michael J. Gunteski, on the brief). The opinion of the court was delivered by NUGENT, J.A.D.
This is a divorce action. Plaintiff Carol Ann Mireider appeals, and defendant Stephen J. Langan cross-appeals, from a dual judgment of divorce (DJOD) and from an amended DJOD. Although the parties agreed before trial to the terms of custody and parenting time concerning their two children, a daughter and a son, they agreed on little else. On appeal, plaintiff challenges the provisions of the judgment concerning: limited duration alimony, arguing the award is too low; child support, arguing the award is too low; and equitable distribution, arguing the court wrongly included a pre-marital asset and wrongly ordered the sale of the marital residence. Defendant contends the trial court erred by: awarding excessive alimony; not alternating the tax deduction for the children; not ordering plaintiff to obtain life insurance; and awarding plaintiff half the value of his business, TrendWatch, LLC. Both parties contend the court incorrectly awarded attorney's fees.
Having considered their arguments in light of the record and applicable law, we affirm the alimony award but reverse the child support award and remand for further proceedings. We also reverse and remand for further proceedings certain provisions of the final judgment concerning equitable distribution. In view of the need for the remand, we also reverse the award of attorney's fees.
I.
This is the relevant procedural history. On February 19, 2008, plaintiff filed a divorce complaint, signaling the end of the parties' ten-year marriage. Defendant filed an answer and counterclaim, and thereafter plaintiff filed a motion for pendente lite relief. She sought, among other things, payment of alimony, child support, and the children's private school tuition and fees, as well as the mortgage and utility expenses on the marital home and the children's past due school expenses. The court entered an order requiring that defendant: pay plaintiff $3300 in non-taxable monthly support and maintenance; pay outstanding mortgage, repair, and utility expenses on the marital home; and pay the children's outstanding and future school tuition and expenses.
One month after entering that order, the court granted plaintiff additional pendente lite relief. The court ordered defendant to pay plaintiff $900 per month for the utility expenses for the marital home. The court also permitted defendant to invade certain marital funds, "either from savings or by way of a home equity loan," to satisfy outstanding marital home expenses.
Thereafter, the court entered a case management order directing the parties to obtain and use a home equity line of credit (HELOC) to pay for forensic accounting and marital lifestyle experts, the marital home utility expenses, and cellular phone bills. The order also required the parties to document HELOC withdrawals. After plaintiff drew down $50,000 of the HELOC, the court entered an order restraining her from further accessing it.
Before giving their opening statements at trial, the parties agreed to joint custody of the children and shared parenting time. Following a lengthy trial on the remaining disputed issues, including alimony, child support, equitable distribution, and counsel fees, the court issued a written opinion and entered a dual final judgment of divorce on March 4, 2013. Plaintiff appealed and defendant cross-appealed. Following the appeals, the court signed an amended dual judgment of divorce on June 24, 2013. Both parties amended their respective notices of appeal to include the June 2013 order.
We derive the following facts from the trial record. When plaintiff filed the divorce complaint the parties were in their mid-forties, had been married ten years, had two children who attended private school, and were jointly earning substantial income. Both had significant educational and employment backgrounds.
Plaintiff held an associate's degree in fashion buying, merchandising, and consumer marketing, as well as a Bachelor of Arts degree in marketing. After completing her education and working in New York for two cosmetics companies in marketing and sales management, she began working as a product manager for a pharmaceutical company specializing in the manufacture of clean room products. Two years after starting that job, she was hired by another pharmaceutical company as product manager of ophthalmology and hand-surgical instrumentation. When she left shortly before marrying, she was the director of worldwide business development in the department of a division specializing in medical devices. Her annual salary was $100,000 plus bonuses.
In February 1998, four months after marrying defendant, plaintiff was offered a job at a Johnson & Johnson subsidiary, at a salary of $95,000 per year plus a signing bonus of $10,000. Two years later, she left due to complications with her second pregnancy. According to plaintiff, at defendant's urging, she remained at home to care for the children after their son's birth. She believed that had she continued to work, she would have been promoted to director of marketing at an annual salary between $170,000 and $180,000.
While a homemaker, plaintiff did "some consulting work" in 2004 and 2005. Her gross earnings in those years were $2687 and $9379, respectively. She worked at Abbott Laboratories (Abbott) in 2006 for "[a] couple months." Her independently-filed 2006 tax return reported her adjusted gross income as $60,460.
In "[a]bout 2007," plaintiff returned to work part-time as a manager of medical education at Abbott, a medical device company. She primarily worked at home. For seven months during 2007, plaintiff worked full-time, but she went back to part-time in 2008 due to a lack of childcare.
When the trial began, plaintiff was working part-time at Abbott. In 2008, she earned $105,362 in gross wages; in 2009, $110,624; and in 2010, $85,232 plus a bonus of $17,874 for her performance in 2009. According to the trial court's written opinion, plaintiff's 2011 gross income was $188,000.
Defendant worked in the securities industry on Wall Street after earning his business degree. In the early 1990s, he was a sole proprietor floor trader at the American Stock Exchange. Between 1990 and 1994, his income ranged from nothing to $51,000 due to market fluctuations. In 1992 or 1993, he filed for bankruptcy, lost his two homes, and damaged his credit rating. He was discharged in 1993.
After the parties married in October 1997, defendant continued working for various investment management firms in New York. His gross earnings for 2003 and 2004 were $319,242 and $377,145. Beginning in April 2005 through trial, he worked at Rochdale Securities as a technical analyst, where his annual compensation included a fixed annual salary of $150,000 plus a bonus, which typically increased due to market volatility. His total gross earnings for 2005 through 2010 were: $270,273; $356,698; $498,338; $912,480; $1,240,498; and $712,298. At trial in May 2011, defendant believed he would earn only his annual base salary that year. At the end of the summer of 2011, his base salary had decreased to $75,000.
The parties' incomes supported their comfortable lifestyle. They resided in a 3700 square foot home located on a three-acre lot in Middletown. From 2000 through the date plaintiff filed the complaint, defendant paid all the home expenses.
During most of the marriage, the parties employed nannies and housekeepers, which they paid for from a joint account funded by defendant. Defendant also paid the tuition and fees for the children's private school, as well as the fees for their extracurricular activities, including sports and music lessons.
The parties drove luxury automobiles. According to plaintiff, she traded her Lexus truck for a newer, pre-owned one in 2006 that cost $70,000; she paid $30,000 with her funds. Defendant said he contributed, paying $17,000 or $18,000. Also in 2006, defendant began leasing an Infinity SUV, which he later purchased. In 2007, he purchased a Dodge Ram pickup truck.
Plaintiff testified that the family annually visited Florida, Saint Thomas, Long Beach Island, and upstate New York. Defendant testified that the family visited Saint Thomas six times, and each of the remaining destinations (excluding Long Beach Island) once.
The parties had differing recollections about the extent to which they went to restaurants, where they shopped for groceries, and whether they regularly purchased clothing from high-end and custom retailers. They belonged to various clubs and recreational facilities during their marriage. In 2007, the parties had an in-ground, salt water swimming pool constructed in the backyard of the marital home.
The parties both retained accounting experts to quantify the marital standard of living. Plaintiff's expert, Scot Pannepacker, analyzed the parties' lifestyle from the latter part of the marriage to six months after their separation. He included taxes but excluded savings from his calculations. Pannepacker computed the monthly shelter cost at $5995, the monthly transportation cost of two vehicles at $2336, and the monthly personal expenditure cost at $18,286, totaling $26,617. He also estimated a post-marital monthly cost at $20,877, which reflected plaintiff's and the children's continued residence in the marital home ($5995), half of the martial transportation cost ($1168), and three-quarters of the marital personal expenditure cost ($13,714).
Plaintiff testified that Pannepacker's computation of the marital standard of living was accurate. In her October 25, 2010 Case Information Statement (CIS), she reported her current monthly lifestyle expenses as $25,945.
Defendant's expert, Alan Hirschfeld, disagreed with Pannepacker's opinion. Among other things, Hirschfeld found that Pannepacker's computation of the marital standard of living included some of defendant's business expenses. After deducting what he deemed to be inflated expenses, Hirschfeld computed the parties' marital standard of living in 2007 as $211,292.
In defendant's September 18, 2008 CIS he reported the parties' monthly marital lifestyle as $9,929.85, which he testified was accurate. His June 4, 2010, CIS reported it as $11,360. Defendant's current monthly lifestyle expenses were reported in his June 2010 CIS as $15,665, which included his pendente lite obligation.
During the time the case was tried, defendant resided in a home in Monmouth Beach which he rented for $3750 per month. Plaintiff chose to continue residing in the marital home, which defendant had vacated in July 2008. The court awarded plaintiff eight years of limited duration alimony at $5000 per month.
The parties disputed whether certain assets were marital assets, and the extent to which each was entitled to share in assets developed or acquired by the other. The dispute began with the marital home in Middletown. Although the parties stipulated to the marital home's value as $852,000, they disputed whether the home should be sold and how the proceeds should be distributed. Their dispute was based on who contributed the funds to purchase the home.
When the parties were engaged in December 1996, plaintiff lived in a home in Princeton and defendant lived in an apartment. Plaintiff testified she "hardly" discussed purchasing a new home with defendant; rather, she was looking for employment and a new home in Monmouth County where her family and friends lived. Defendant disputed plaintiff's family lived in Monmouth County. He claimed he and plaintiff discussed purchasing a home "in anticipation of getting married" in a location where he could continue commuting on the high speed ferry to New York City. They ultimately decided to purchase the marital home, which at the time was subject to foreclosure proceedings.
The parties eventually purchased the marital home in plaintiff's name. Defendant testified that he looked at the home in May 1997, had the home inspected, and paid for a title report, which listed him as the sole purchaser. Defendant also testified that he made a $9,000 escrow deposit. However, due to defendant's bankruptcy and consequent damaged credit, the home was titled in plaintiff's name.
Plaintiff testified she paid $108,102.51 toward the purchase of the home and mortgaged the remaining amount. She claimed to have wired $40,000 from her money market account as an escrow deposit to her attorneys at the law firm of Venezia & Nolan. On the day of settlement, she brought a cashier's check in the amount of $60,102.51 to satisfy the $58,102.51 outstanding balance. Plaintiff's Uniform Residential Loan application showed that she had $122,052.03 in liquid assets. Defendant claimed that he funded the cashier's check.
The attorney who represented the parties at closing testified at the divorce trial. The attorney corroborated that defendant wrote a check for $9,000 as an escrow deposit.
Plaintiff sold her Princeton home and used the net proceeds for marital home renovations. According to plaintiff, she also paid $45,000 to have an additional porch constructed on the home, and $7,000 for the redesign of the front door. Plaintiff claimed she received no contribution from defendant for construction of the front porch and the re-design of the front door. Defendant claimed he paid for construction of the additional porch, transferring money from his bank account to plaintiff's bank account.
Later, plaintiff refinanced the mortgage. At the closing, she signed a promissory note to Chevy Chase Bank, F.S.B., and spent the $62,000 proceeds to renovate portions of the marital home, including the kitchen, septic tank, basement, and office.
During the divorce trial, plaintiff maintained that the home was exempt from equitable distribution. Defendant insisted otherwise, and also insisted that the home be sold and the proceeds divided equally. The court ordered the parties to immediately sell the home and equally divide the profits.
In 2005 the parties opened a home equity credit line of $250,000. In April 2010, six months before the trial began, the balance was $140,160.33. The court entered a pendente lite order on May 7, 2010, directing the parties to use the line of credit to retain certain experts, pay the marital home's utility expenses, and pay for the parties' cellular phone bills, "subject to allocation at the end of the case." Plaintiff testified she transferred $50,000 to her checking account to pay for those expenses.
In October 2010, before the trial commenced, defendant moved to restrain plaintiff from further accessing the line of credit, contending she "used the funds for reasons previously denied by the court." The court granted defendant's motion.
Notwithstanding the court's order, plaintiff accessed an additional $45,000 from the line of credit. She testified at trial that she had spent $95,000 of the credit line since May 2009, and $11,000 of credit remained. On cross-examination, however, she said no credit remained. The court ordered plaintiff to reimburse defendant $95,000 upon the sale of the marital home.
Although the parties disputed other issues, only three are involved in this appeal. Plaintiff testified that "right after" she left a pharmaceutical company in December 1997, she rolled over acquired stock options to an IRA with Fidelity. In 1998, the IRA was valued at $197,945.34. At trial, it was worth $120,000. The stock acquired no value between October and December 1997. Plaintiff acknowledged during cross-examination that the parties' 2004 joint income tax return reported a $20,000 IRA distribution, but she denied it was from her IRA. The court concluded plaintiff's Fidelity IRA was subject to equitable distribution and awarded half its value to defendant.
Defendant operated a business called TrendWatch, which he started in 2004. The purpose of TrendWatch was to analyze stock market trends and advise clients about them. Plaintiff claimed defendant started the business during their first year of marriage and later incorporated it. Plaintiff also claimed that she was TrendWatch's vice-president of marketing, and that in that position, she e-mailed daily newsletters, answered phone calls from the marital home, and entertained clients with defendant. Defendant denied employing plaintiff and paying her wages. The parties' 2005 joint income tax return reported $4,056 as plaintiff's wages for her work at TrendWatch, but plaintiff denied receiving the money.
Defendant claimed he stopped operating the business in December 2007, even though he certified in December 2008 that the TrendWatch newsletter was last published in March 2008. Plaintiff, on the other hand, testified that she believed the business was still operating because the company had sponsored their son's baseball team. Defendant said he had agreed in 2005 or 2006 to have TrendWatch sponsor the team for three years.
Based on the testimony of an accountant jointly retained by the parties to value TrendWatch, the court valued the business at $92,300. The court awarded plaintiff $46,150.
Lastly, plaintiff testified defendant received $538,500 in commissions in 2008. Defendant's CIS dated September 18, 2008, also reported that he received a bonus of $538,500.
II.
Because the parties' attack on the trial court's decision is broad, but the scope of our review narrow, we begin by emphasizing for the parties' benefit the well-established principles that guide our review of Family Part judgments. We give considerable deference to the discretionary decisions of Family Part judges. Donnelly v . Donnelly, 405 N . J . Super . 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). When a Family Part judge has made findings of fact after considering the testimony and documents the parties have presented during a non-jury trial, the judge's findings are generally "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).
That is so because of "the family courts' special jurisdiction and expertise in family matters." Id. at 413. Just as important, the trial judge is in the best position to make judgments as to whether witnesses are believable. Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). For those reasons, we will not reverse a trial judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 70 (quoting Rova, supra, 65 N.J. at 484).
Unlike a trial judge's fact and credibility findings, the judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). A trial judge "is in no better position than we are when interpreting a statute or divining the meaning of the law." D.W. v. R.W., 212 N.J. 232, 245 (2012). We review the legal issues anew. Id. at 245-46.
Guided by these principles, we first address the parties' contentions concerning alimony. Plaintiff contends the trial court erred "in only awarding [her] $60,000.00 per year in limited duration alimony for eight years." Specifically, she argues that the award of $60,000 annually is too low because the court: failed to determine whether the alimony award would enable her and the children to live in a lifestyle reasonably comparable to the marital standard of living; failed to consider the testimony of her forensic expert and quantify the marital standard of living; miscalculated defendant's income; and improperly analyzed the tax consequences under N.J.S.A. 2A:34-23(b)(12).
In his cross-appeal, defendant argues the court erred "in ordering limited duration alimony in the term of [eight] years and failing to consider there were over [four] years of pendente lite support paid by [him]." He also claims that, based on the court's monthly award of alimony and child support ($6,827.50 total), he overpaid his pendente lite obligation by $2,792.50 monthly, and thus the court should have ordered a retroactive reduction in the amount of $150,795.
Alimony is "an economic right that arises out of the marital relationship." Mani v. Mani, 183 N.J. 70, 80 (2005). Its general purpose is to enable the supported spouse to maintain a standard of living comparable to the one enjoyed during the marriage. Heinl v. Heinl, 287 N.J. Super. 337, 344 (App. Div. 1996). In awarding alimony, the judge must consider the thirteen factors enumerated in at N.J.S.A. 2A:34-23(b), along with any other factor deemed relevant.
"To vacate a trial court's finding concerning alimony," an appellate court
must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.
[Heinl, supra, 287 N.J. Super. at 345 (citing Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993)).]
In awarding limited duration alimony, the court made specific fact findings with respect to each of the factors enumerated in N.J.S.A. 2A:34-23(b). The court noted that defendant was the family's primary wage earner from 2000 to 2006. While defendant made considerably more money than plaintiff during the marriage, his business was more volatile and his income "may very well continue to have drastic fluctuations." The court concluded that "[d]efendant still has the ability to make a living, albeit not at the income level he has been known to achieve in the past."
Regarding the marital standard of living and the likelihood of each party maintaining a reasonably comparable standard, the court found:
Based on the evidence and testimony presented the parties enjoyed a middle class standard of living for the majority of the marriage. The standard of living got considerably better as the marriage endured. The testimony revealed that the parties purchased a large home on three acres of property in the Locust section of Middletown. As time went by and the [p]laintiff no longer worked, significant improvements were made to the property which included renovations to the home, landscaping and the addition of a salt water pool. The children both enjoy the benefits of private schooling. The children are also both involved in a variety of athletic and social activities which involve dues and registration fees. The family also enjoyed memberships in various clubs such as a summer beach club, golf club, social club
and gymnasium. The parties also enjoyed regular high end vacations. It is clear from the testimony that the parties were able to enjoy this lifestyle as a result of the income [d]efendant generated.
In addition, the court considered the parties' earning capacities, education backgrounds, vocational levels, and employability. The court found that defendant "enjoys an income level sufficient to maintain a comfortable lifestyle for a family of four. Plaintiff, similarly, appears to be well educated, and has considerable managerial and sales experience in the pharmaceutical and medical industry."
The court set plaintiff's current annual income at $150,000, and defendant's at $500,000. To compute defendant's income, the court averaged his gross earnings from 2005 to 2008. The court concluded that limited duration alimony of $5000 per month for eight years was appropriate because the parties' youngest child (then age thirteen) would presumably be close to graduating from college by then, and thus the award "will assist [p]laintiff transitioning to financial independence while maintaining a lifestyle that is reasonable." Moreover, the court found:
[A] limited duration alimony award would give [p]laintiff the supplementary income she would need until she can earn sufficient income to allow her to live in the same marital life style she enjoyed during the marriage. This award will enable
[p]laintiff to maintain a reasonable lifestyle, while pursuing full-time employment in her area of education and training.
Based upon our review of the record, we cannot conclude the trial court clearly abused its discretion, failed to consider controlling legal principles, or made findings that could not reasonably have been reached on sufficient credible evidence in the record.
The trial court carefully and comprehensively evaluated the evidence in light of each factor contained in N.J.S.A. 2A:34-23(b). One factor is "[t]he standard of living established in the marriage . . . and the likelihood that each party can maintain a reasonably comparable standard of living." N.J.S.A. 2A:34-23(b)(4). In her first argument concerning alimony, plaintiff seizes on the court's use of phrases such as "the same marital lifestyle" and "a reasonable lifestyle" and asserts that such standards are at variance with the statutory terms "standard of living established in the marriage" and "a reasonably comparable standard of living." We are unpersuaded by plaintiff's argument.
In reviewing the court's decision, we consider "the proofs as a whole," Heinl, supra, 287 N.J. Super. at 345, and avoid becoming mired in linguistic nuances. A consideration of the record as a whole and the entirety of the trial court's opinion readily demonstrates that the court was well-acquainted with the statutory factors respecting alimony and evaluated those factors, notwithstanding the occasional use of language that did not mirror precisely the statutory language. We reject plaintiff's attempt to have us decide the issue on form rather than on substance.
Plaintiff next argues that she "would need to earn over $650,000 per year in order to live in the comparable marital lifestyle she enjoyed during the marriage." She apparently uses that figure based on the court's finding following trial "that her current income is $150,000 per year" and "[d]efendant's income shall be set at $500,000 per year." Although the respective incomes are relevant to "[t]he actual need and ability of the parties to pay," N.J.S.A. 2A:34-23(b)(1), the parties never earned, collectively, $650,000 during their marriage, before plaintiff filed the divorce complaint.
Moreover, considering plaintiff's equitable distribution award, post-divorce annual income, alimony, and child support, we cannot conclude the trial court abused its discretion. The court appears to have provided plaintiff with a lifestyle comparable to the marital standard of living testified to by defendant's expert. See Lynn v. Lynn, 165 N.J. Super. 328, 342 (App. Div.) (noting the necessary inter-relationship between property distribution, alimony, and child support), certif. denied, 81 N.J. 52 (1979).
Plaintiff contends the court did not consider the testimony of her forensic expert and did not quantify the marital standard of living. As previously noted, plaintiff's expert calculated the parties' annual lifestyle from January 1, 2007 to December 31, 2008 at $319,404. Defendant's expert concluded the cost of the parties' annual lifestyle was $211,292. The trial court did not mention the expert's testimony in its opinion.
The court should have expressly resolved the credibility issues raised by the conflicting experts' opinions and explicitly made standard-of-living findings. "The finding of the marital standard is just that — a finding that is put to use in one of two settings: at the time of the court's equitable determination of an initial alimony award . . . or later when a party seeks a modification of alimony." Weishaus v. Weishaus, 180 N.J. 131, 145 (2004 ); see also R. 1:7-4(a) ("The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury.").
Nevertheless, it is readily ascertainable that the court's decision is supported by the record. It is also inferential that the court credited defendant's expert's testimony. The income the court attributed to plaintiff, plus the annual alimony award totaled $210,000, which was within $2,000 of the amount calculated by defendant's expert without consideration of other income generating assets or child support. See e.g. Gomez v. Murdoch, 193 N.J. Super. 595, 601 (App. Div. 1984) (explaining that a remand serves no useful purpose if the proofs support the trial court's conclusions and the result would remain unchanged). For that reason, we decline to reverse and remand the limited duration alimony award.
Plaintiff further contends the court erred by setting defendant's annual income at $500,000 because it failed to include in its income averaging calculation his post-complaint 2009 income of $1,240,498. The judge found that defendant's income peaked in 2009 and thereafter declined due to the "general poor state of the economy," which is supported by the record.
In general, an obligor's income both before and after the filing of the divorce complaint is relevant to the determination of alimony. Dudas v. Dudas, 423 N.J. Super. 69, 72-74 (Ch. Div. 2011). However, in this case, the court did not err by excluding defendant's 2009 income because that year was an outlier. See e.g. Platt v. Platt, 384 N.J. Super. 418, 424-27 (App. Div. 2006) (affirming court's exclusion of the husband's highest income earning year in determining his alimony obligation because it "did not constitute a true reflection of [his] income.").
Finally, plaintiff asserts that the court failed to determine the tax consequences of the limited duration alimony award, which consequently made the amount "even more unreasonable." In determining alimony, a court is obligated to consider "[t]he tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment." N.J.S.A. 2A:34-23(b)(12). The court found: "there does not appear to be any circumstance which exists to justify any designated non-taxable alimony. Accordingly any alimony award will be deductible to the payor and taxable to the payee and will terminate on the death of either party." The court's finding demonstrates that it satisfied its statutory obligation.
Defendant contends on his cross-appeal that the eight-year duration of the limited alimony award was excessive. Defendant asserts that in calculating the award, the court erroneously failed to consider defendant's payment for four-and-one-half years of pendente lite support. We reject defendant's argument for two reasons: first, the court considered the issue, stating in the "other factors" section of its alimony decision that defendant had been "paying $3,300 per month in pendente lite support." More significantly, we fail to discern in the record where defendant raised the issue. Although he asserts in his brief that "[i]t was set forth in the trial and further both parties argued that a Mallamo credit may be due and owed," he has not substantiated that assertion by a citation to the record as required by Rule 2:6-2(a)(4). Because defendant has failed to cite to the portion of the record in which he raised the argument, and because we generally will not consider issues that have not been properly presented to the trial court, we decline to address the issue. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995).
III.
The trial court awarded plaintiff weekly child support of $425. In support of its decision, the court stated:
For all the reasons set forth [in the alimony portion of the decision], for purposes of setting child support, [p]laintiff's income shall be set at $150,000 per year and [d]efendant's income shall be set at $500,000 per year. Plaintiff shall be permitted to claim the children as tax deductions on her tax returns each year. Therefore, in accordance with the Child Support Guidelines, [d]efendant shall pay child support in the amount of $425.00 per week or $1,827.50 per
month. Child support payments shall be made through probation.
Plaintiff argues the court erred by not "supplement[ing] the guidelines-based award with a discretionary amount based on the remaining income (i.e., income in excess of $187,200) and the factors specified in N.J.S.A. 2A:34-23." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at www.Gannlaw.com (2016).
Thus, the appropriate approach is to use the guidelines for the combined net income of [$187,200] and to consider the factors delineated in N.J.S.A. 2A:34-23(a), for an additional discretionary child support award. This combined approach should result in a fair award of child support that is in the best interest of the child.
[Caplan v. Caplan, 182 N.J. 250, 266 (2005); see also, Tannen v. Tannen, 416 N.J. Super. 248, 280 (App. Div. 2010) (reversing trial court's refusal to supplement child support as required by paragraph 20(b) of Appendix 9-A because, among other reasons, the trial court "failed to conduct any analysis of the children's needs as required by N.J.S.A. 2A:34-23(a)).]
Here, the court addressed the factors in N.J.S.A. 2A:34-23(b) when determining alimony. There is certainly some overlap between these factors and those in N.J.S.A. 2A:34-23(a) concerning child support, but they are not identical. Significantly, "'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.'" Tannen, supra, 416 N.J. Super. at 280 (quoting Isaacson v. Isaacson, 348 N.J. Super. 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002). The trial court simply did not address the factors set forth in N.J.S.A. 2A:34-23, as required by paragraph 20(b) of the Guidelines.
The parties do not appear to contest that the $425 weekly child support award was calculated correctly under the Guidelines. The parties have not included a completed child support guideline worksheet. See R. 5:6A. --------
Defendant argues the court decided not to supplement the child support award because it allowed plaintiff to claim the children as tax deductions, ordered defendant to pay their health insurance and contribute to their unreimbursed medical expenses, and ordered defendant to contribute to their secondary schooling and college expenses. If that were so, the court should have given such explanations in its opinion. R. 1:7-4(a). Because the court did not do so, we cannot assess the validity of defendant's argument. Accordingly, we remand the child support award for additional findings. If the court intended not to award an additional discretionary amount of child support, it should explain its reasons so that there is an adequate basis for appellate review of its decision. If the issue was overlooked, the court should address it.
Defendant argues on his cross-appeal that the court erred by failing to alternate the children as dependents for federal and state income tax purposes. A trial court's decision in allocating tax exemptions, subject to the acceptance by the Internal Revenue Service, is discretionary. Heinl, supra, 287 N.J. Super. at 353. Plaintiff, as the parent of primary residence, appears to meet the IRS criteria of a custodial parent. Accordingly, we discern no abuse of discretion by the trial court in allowing plaintiff to take the deductions for the two children.
IV.
We turn to the parties' contentions concerning equitable distribution. Plaintiff's arguments concerning the marital home — that the court erred by not requiring defendant to return the down payment and costs of improvements made by plaintiff, and by requiring that the home be sold — are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only these comments. The parties presented conflicting testimony about the down payment of the marital home and who paid for improvements to the home during the course of their marriage. The trial court's decision turned on its resolution of credibility issues. As to those issues, the court's findings are supported by adequate, substantial, credible evidence and thus binding on appeal. Cesare, supra, 154 N.J. at 411-12.
Plaintiff also argues that the trial court erred by requiring the parties to sell the marital home immediately, rather than when their children finished high school. Plaintiff contends the court failed to consider other options, including permitting her to remain in the house and giving defendant a mortgage, as described in Gemignani v. Gemignani, 14 6 N.J. Super. 278 (App. Div. 1977); or giving plaintiff the right to buy the defendant's interest in the marital home. We fail to discern from the record where plaintiff either requested such relief or offered to buy out defendant's interest. Consequently, we decline to address the issue. Nieder, supra, 62 N.J. at 234.
We find merit in plaintiff's remaining contentions concerning the equitable distribution of her IRA, requiring her to repay the $95,000 she utilized from the home equity loan, and the trial court's failure to address defendant's 2007 bonus of $538,500. The court's findings of fact and conclusions of law are simply inadequate to permit review of those issues.
As to the IRA, "[i]n order to determine whether property is subject to equitable distribution, it is necessary to assess whether it was 'legally and beneficially acquired' by the parties during the marriage." Reinbold v. Reinbold, 311 N.J. Super. 460, 467 (App. Div. 1998) (quoting Kikkert v. Kikkert, 177 N.J. Super. 471, 474-475 (App. Div.), aff'd o.b., 88 N.J. 4 (1981)). "Only those benefits to which an employee's entitlement arises out of labors during the marriage are distributable." Id. at 471; see also Genovese v. Genovese, 392 N.J. Super. 215, 223 (App. Div. 2007) ("Pension benefits derived from the joint efforts of the parties are subject to equitable distribution.").
The trial court stated in its opinion that the parties had, "over the course of the marriage, accumulated retirement accounts in their names. The following accounts are subject to equitable distribution: . . . Fidelity IRA in the name of the [p]laintiff." The court cites no testimony or factual evidence in support of the conclusion that the stock options plaintiff later rolled over into an IRA were accumulated over the course of the marriage, and we have failed to discern any in the record. Plaintiff testified she acquired stock options before she married defendant, and rolled them over into an IRA after leaving her employer shortly after she married defendant. The trial court's decision does not address that testimony and is devoid of any fact findings as to whether the stock options were plaintiff's pre-marital assets, whether they were comingled with marital assets during the marriage, or whether any accretions directly resulted from the parties' work or efforts during the marriage. Stated differently, the trial court's conclusion concerning plaintiff's IRA is not supported by credible evidence in the record. For that reason, we reverse that part of the opinion and remand for an expansion of the court's reasoning with respect to that asset.
We further conclude the court made insufficient findings concerning plaintiff's use of the home equity line of credit (HELOC). In its opinion, the court summarized the parties' positions:
The amount of the HELOC at the inception of the case was $145,000. The evidence presented by the Defendant suggests that the [p]laintiff, who was living in the marital home, borrowed funds from the HELOC without Court permission. Defendant maintains that the funds that the [p]laintiff borrowed, beyond which she had Court permission, are her responsibility and not his.The court concluded:
Plaintiff maintains that her borrowing against the HELOC was in fact justified as she was permitted by the Court to use these monies to pay utilities and expenses on the marital home.
After having heard testimony from both sides while it is clear that the HELOC monies were used for utilities, expenses on the marital home and the family, the [c]ourt is convinced that the [p]laintiff not only used these funds for legitimate purposes, but the
record supports that she also used HELOC money without any justification and contrary to [c]ourt order. Plaintiff has not provided sufficient justification for invading the HELOC beyond that which was permitted by prior Court order. When the marital home is sold $95,000 will be reimbursed to the [d]efendant.
The court's conclusion that plaintiff impermissibly accessed $95,000 of the HELOC is not supported by the record. Both parties testified that plaintiff accessed a total of $95,000 of HELOC funds. The court acknowledged that plaintiff used some of those monies "for legitimate purposes," which is supported by her documented expenditures submitted during trial. The court, however, did not make findings as to what expenses it considered to be "legitimate." Plaintiff's expenditure list included some permissible expenses pursuant to the May 7, 2010, pendente lite order, such as electricity, water, cell phone, and retainers for marital lifestyle experts. The court should have quantified the extent to which plaintiff permissibly used HELOC funds, in light of its finding that she used a portion of those monies for "legitimate purposes." Additionally, if the court intended that plaintiff return the funds expended from the HELOC pursuant to the court's pendente lite order, then the court should have explained its rationale for doing so.
Lastly, with respect to defendant's 2007 bonus, the court made no findings at all. It should address the bonus on remand and explain how the bonus was factored into the court's decision.
On his cross-appeal, in addition to those arguments we have previously addressed, defendant argues the judge erred by awarding plaintiff 40% of the value of TrendWatch, and by failing to require plaintiff to obtain a life insurance policy for the benefit of the minor children. These arguments have insufficient merit to warrant discussion in a written opinion. R. 2:11-2(e)(1)(E). The court's decision concerning TrendWatch was amply supported by sufficient credible evidence on the record as a whole. We discern no abuse of discretion by the court in ordering defendant, not plaintiff, to maintain life insurance for the protection of the children.
V.
Both parties challenge the court's award of counsel fees as well as the court's entry of an amended final judgment of divorce. Although the court properly considered relevant factors in awarding attorney's fees, our decision here as well as the court's decision on remand may change the evaluation of those factors. Moreover, the provisions in the dual final judgment of divorce affected by our opinion — including the paragraphs concerning attorney's fees — will have to be amended following the court's decision on remand. The court will undoubtedly amend the FJOD following its findings.
We have considered the parties' remaining arguments and conclude they are without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
VI.
To summarize, we affirm the court's award of alimony. We reverse and remand the provisions in the final judgment concerning child support for further proceedings consistent with this opinion. As to equitable distribution, we reverse the court's decision concerning plaintiff's IRA, as well as the provision of the judgment requiring plaintiff to repay the $95,000 home equity loan. We direct the trial court to address plaintiff's claim concerning defendant's 2007 bonus. If, as the result of the court's decisions on those issues, adjustments to the equitable distribution award become necessary, the court may, in its discretion, make such adjustments.
The provisions of the judgment awarding counsel fees are vacated. The issue of fees shall be addressed by the trial court following its decision on the remanded issues.
We leave to the trial court's discretion the manner in which it addresses the issues on remand.
Affirmed in part, reversed in part, and remanded to the trial court for further 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