Opinion
DOCKET NO. A-4825-10T2
01-29-2013
LAUREN SKLAR, f/k/a LAUREN S. WOLFSON, Plaintiff-Respondent, v. WILLIAM E. WOLFSON, Defendant-Appellant.
Timothy J. McIlwain argued the cause for appellant (McKenna McIlwain, LLP, attorneys; Mr. McIlwain, on the briefs). Michael D. Sklar argued the cause for respondent (Levine, Staller, Sklar, Chan, Brown & Donnelly, P.A., attorneys; Mr. Sklar and Arthur E. Sklar, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and St. John.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-0863-09.
Timothy J. McIlwain argued the cause for appellant (McKenna McIlwain, LLP, attorneys; Mr. McIlwain, on the briefs).
Michael D. Sklar argued the cause for respondent (Levine, Staller, Sklar, Chan, Brown & Donnelly, P.A., attorneys; Mr. Sklar and Arthur E. Sklar, on the briefs). PER CURIAM
Defendant William E. Wolfson appeals from a May 17, 2011 order, directing him to pay counsel fees accumulated during the divorce action of plaintiff Lauren Sklar Wolfson, and from the Amended Dual Final Judgment of Divorce (AJOD) entered after a four-day bench trial. In regard to the issues raised in this appeal, which were addressed by the trial judge, we affirm for the reasons stated by Judge John T. Kelly in his cogent, thorough, and comprehensive written opinion. We make only the following brief comments.
For ease of reference, we refer to the parties by their first names.
By way of background, the parties were married on July 5, 2003. The divorce complaint was filed on November 18, 2008. One child was born of the marriage. The trial judge characterized the marriage as "tumultuous," which is amply supported by the record. William initially earned a substantial annual income, reaching nearly $500,000. However, subsequently his income significantly declined. The trial judge determined that a fair figure to assign to William as his current earnings was $160,000 per year and imputed income to Lauren in the sum of $32,500 per year. During the course of the litigation, William filed a petition for bankruptcy.
We are guided by our standard of review. "We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998) (holding that family courts have special jurisdiction and expertise in family matters to which we generally defer). Further, "[w]e give deference to a trial court's findings as to [the] issue of alimony, if those findings are supported by substantial credible evidence in the record as a whole." Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998); see also Cesare, supra, 154 N.J. at 411-12 ("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.").
We turn to the first contention raised by William in his reply brief, which asserts the judge was biased against William and his attorney, and abused his discretion by failing to recuse himself. The caustic content of William's reply brief regarding this point, however, pales in comparison to the scope of the allegation; the reply brief instead largely cites to the colloquy between the court and counsel which reveals only that the judge was attempting, through his rigorous and insightful questioning, to focus counsel on the issues before the court and obtain responsive answers. We view this as nothing more than appropriate direction between a diligent judge and a recalcitrant attorney, and note that this was helpful in the court's attaining of a true understanding of the parties' contentions. We find the judge's comments to be entirely appropriate.
The contention in Point II of the reply brief that the judge abused his discretion "by awarding seven (7) years of alimony on an approximate three (3) year marriage," is more troubling. William does not cite to the record as required to support these facts. The judge's written decision indicates a marriage of over five years and an award of "alimony in the sum of $900.00 per week for forty (40) months . . . ." or three years and four months, not the time periods represented in William's reply brief. We also admonish William's counsel for not including a required copy of the judge's opinion as an appendix to his brief. R. 2:6-1(a)(1)(C).
Both points raised in the reply brief are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add the following comment.
As a result, we deny M-5460-11.
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These points were raised for the first time in William's reply brief. To raise issues initially in a reply brief is improper. State v. Smith, 55 N.J. 476, 488 (1970), cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970). Accord City of Elizabeth v. Elizabeth Fire Off., 198 N.J. Super. 382, 384-85 n.2 (App. Div. 1985); Brown v. Shaw, 174 N.J. Super. 32, 39 (App. Div. 1980).
Although we are affirming for the reasons set forth in Judge Kelly's written opinion, we address for clarification certain issues raised by William.
He contends that the trial court lost or ignored nine in limine motions. Other then the reference in the pretrial information exchange, no supporting memoranda were attached as an appendix to his exchange as prescribed by Appendix XXIII with regard to Rule 4:25-7(d), and none are included in the record before us. However, assuming compliant formal in limine motions were made, we have warned that requests for in limine rulings should be granted only sparingly. Bellardin v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988). Here, the requested rulings should not have been made in the abstract but more appropriately in the context of the facts elicited at trial. Ratner v. General Motors Corp., 241 N.J. Super. 197 (App. Div. 1990). We discern no prejudice to William that those rulings were made at trial.
The trial judge determined that William drew down $200,000 of their joint home equity line of credit, without Lauren's knowledge or consent, invested it, and lost the entire amount. In making an equitable distribution of marital property, the court must consider, among other things, "[t]he contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property." N.J.S.A. 2A:34-23.1(i). In Kothari v. Kothari, 255 N.J. Super. 500, 506 (App. Div. 1992), we noted the Legislature did not define "dissipation" of marital property, but found that the term was "a plastic one, suited to fit the demands of the individual case." In Painter v. Painter, 65 N.J. 196, 218 n.6 (1974), the Court stated that "any disposition of property in fraud of the other spouse could be promptly made the subject of appropriate judicial action," and in Monte v. Monte, 212 N.J. Super. 557, 567-68 (App. Div. 1986), we stated that an intentional dissipation of marital assets by one spouse would constitute a fraud on the marital rights of the other spouse.
In a matrimonial matter, "dissipated funds are subject to equitable distribution, as if the funds were not dissipated at all." Wasserman v. Schwartz, 364 N.J. Super. 399, 414 (Law Div. 2001). A trial court has sole discretion to determine the dissipation of assets, and its decision will not be reversed absent an abuse of discretion. Kothari, supra, 255 N.J. Super. at 506 (citations omitted). We discern no abuse of discretion in granting Lauren one-half of the dissipated amount.
William also contends that by denying his motion for a jury trial his due process rights were violated. In Brennan v. Orban, 145 N.J. 282 (1996), the plaintiff filed a divorce complaint and later filed a separate tort action in the Law Division for physical abuse allegedly suffered at the hands of her husband, the defendant. Brennan makes it clear that the scope of the Family Court's ancillary jurisdiction is indeed broad. Under the doctrine of ancillary jurisdiction, "once the Chancery Division asserts jurisdiction over a complaint seeking equitable relief, it has the power to dispose of ancillary legal claim and award money damages. Legal issues are ancillary if they are germane to or grow out of the subject-matter of the equitable jurisdiction." Id. at 293 (citation and quotation omitted).
Given the issues of child welfare, child support and child parenting present in this matter (which were not present in Brennan), the trial judge correctly denied a jury trial concluding that the marital tort should be resolved in conjunction with the divorce action as part of the overall dispute between the parties.
Finally, William argues that awarding attorney fees to Lauren violated his due process rights. Lauren complied with the applicable procedures. R. 5:3-5; R. 4:42-9(b). The judge considered the factors under Rule 5:3-5, held a hearing, and ordered William to pay $62,000 toward Lauren's legal fees. The judge's decision is amply supported by credible evidence in the record. We discern no abuse of the judge's discretion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION