EQUITABLE DISTRIBUTION
Susan L. Suessman, et. al. v. James R. Suessman, et. al. U.S. Dist. Ct. (5 pp.) In an action wherein wife sues former husband, his accounting firm, and various firm associates, alleging that the defendants all conspired to undervalue her husband’s accounting firm to deprive her of her fair share of equitable distribution in divorce proceedings, the court denies husband’s motion to dismiss without prejudice, ordering plaintiffs to amend their complaint to submit a RICO case statement containing details of the proposed RICO claims. {Filed Sept. 16, 1996}
Marilyn Militscher v. Darren Militscher, App. Div. (9 pp.) On defendant’s challenge to certain aspects of divorce judgement: (1) Judge mistakenly exempted certain monies from the marital estate just because plaintiff possessed the fund prior to marriage, but the court rejects the defendant’s argument that the funds were converted into a joint asset simply by virtue of the commingled status of the account; judge must consider plaintiff’s intent on remand and ascertain whether she clearly manifested an unequivocal intent that the funds be returned to her despite the fact that she added her husband’s name on the account and thereby created a joint account. (2) Judge erred in crediting plaintiff with a hypothetical broker’s commission in connection with her exercising her right to purchase defendant’s interest in the marital residence, since plaintiff planned to remain in the property and no sale was contemplated. (3) College education trust provision is affirmed. (4) remand is required of provision in judgement giving plaintiff a credit for the sum she allegedly paid to the IRS for delinquent taxes and a penalty.
Maskovsky v. Black, App. Div. (5 pp.) Judge correctly denied defendant’s motion to set aside as unfair and unconscionable final judgement allowing equitable distribution of his military pension – a premarital asset – since the pension was not “disturbed” at all, but was merely designated as the fund from which the alimony was to be paid
Fazzio v. Fazzio, App. Div. (6 pp.) The court affirms that portion of the judgement of divorce which awarded wife a fifteen percent interest in the net profit that resulted from the sale of real property jointly owned by the parties, the commercial buildings on the property, and an auto salvage license and forklift, where wife had worked for her husband din his auto salvage business during the marriage.
Johnston v. Johnston, App. Div. (per curiam) (3 pp.) Under the circumstances of this case, the judge properly allowed the incorporation of a handwritten property settlement agreement into the judgement of divorce, finding that the wife expressly had waived alimony, an interest in the husband’s pension, counsel fees and rights to most of the personal property in consideration for 40% of “all” monies collected in husband’s workers’ compensation award which is for pain, suffering, and disability is not subject to equitable distribution, this does not mean that the parties cannot privately negotiate for inclusion of those amounts in their own settlement.
Kartanos v. Kartanos, App. Div. (per curiam) (5 pp.) (1) The trial court correctly rejected wife’s allegations that her husband and his father had engaged in a conspiracy to drain marital assets otherwise subject to distribution, and found that he marital estate was depleted due to significant debt resulted from a pattern of excessive spending by both parties. (2) Shares of stock in husband’s family corporation transferred to the husband during the marriage were not joint gifts subject to equitable distribution.
Vuolo v. Vuolo, App. Div. (per curiam) (11 pp.) Various aspects in this are affirmed, and other aspects are reversed, the court finding fact issues regarding whether title to certain furniture inherited by the defendant and he merely permitted it to be used in the marital home, in which case it ________ equitable distribution, or whether there had been a gift of one-half interest or implied by the joint use of the furniture, in which case it could be distributed. Insurance should not automatically have been considered a marital asset; and consideration must be given to the issue of officer loans and , on remand, the amount of the loans that can be proven, and which loans, if traced to defendant should properly be considered his assets. (4) The court affirms the judge’s issue in favor of plaintiff on the issue of the division of the business real _______ partnership agreement gave her one-half interest in that real estate, over the real estate was a non-marital asset because he owned half of it prior to the other half from his mother.
Magnapera v. Magnapera, App. Div. (per curiam) (8 pp.) (1) The court did not abuse its discretion in formulating the equitable distribution award with a percentage allocation of 55/45 in favor of defendant, when viewed against the economic background of this nine-year marriage. (2) Where motion judge clearly reserved defendant’s right to seek enforcement of the pendente lite order following the dismissal of the complaint, it was till extant and enforceable at the time of the final judgement, and any arrears that accrued to that point were clearly due and owing to defendant. (3) The judge erred in making an award of permanent alimony on the facts of this case.
Sherman v. Sherman, App. Div. (per curiam) (10 pp.) (1) Portions of judgement are affirmed as supported, however, defendant’s refusal to submit to cross-examination requires that the judge reconsider some issues; although the judge said he would not accord defendant’s direct testimony little weight in those areas on which she had not been cross-examined, he made determinations respecting several issues based in whole or in part on her testimony. (2) Judge erred in exempting defendant’s federal personal injury award from equitable distribution.
Valentino v. Valentino, App. Div. (Carchman, J.S.C., t/a) (5 pp.) Although non-owners wife’s participation in the actual working of the husband’s pre-maritally-owned gas station business was minimal, the trail judge properly considered that her contributions to the home and family allowed the defendant to work at the business and pay down the mortgage, and his holding that the wife was entitled to ten percent of its value is affirmed. [Approved for publication Mar. 30, 1998.]
Enright v. Enright, App. Div. (per curiam) (6 pp.) Despite defendants challenge, the court finds that the trial judge did not make a mechanical equal division of assets without reference to the statutory criteria in violation of Devane, but preformed the analysis necessary to assure that the distribution was not presumptively equal, and equitable ward is affirmed.
Morse v. Morse, App. Div. (per curiam) (5 pp.) Judge properly rejected ex-husband’s claim seeking equitable distribution of a life insurance policy.
Christian v. Christian, App. Div. (per curiam) (3 pp.) Where judge agreed that “there appears to be shenanigans going on here,” plaintiff was erroneously denied permission to seek discovery and have a hearing based on her allegation that here ex-husband materially misrepresented his financial situation at the time the parties entered in equitable distribution agreement.
Civello v. Civello, App. Div. (per curiam) (3 pp.) The portion of defendant’s monthly retirement income that reflects the value of the pension that plaintiff has already received in equitable distribution id not includible in the calculation of his available income fore alimony purposes.
Koff v. Koff, App. Div. (per curiam) (5 pp.) Even assuming that the wife’s allegations were true – that her husband’s former business financial manager had unreported sales and earnings to devalue the business for purposes of the divorce – the court correctly found that this would have no material effect upon the valuation of the wife’s distributable share and there was no abuse of discretion in the denial of the wife’s application under R. 4:50-1 to vacate the final judgement of divorce.
Schwartz v. Schwartz, et al., App. Div. (per curiam) (5 pp.) (1) While it may be unusual for a judge to grant the entire primary marital asset to one spouse, that distribution is not improper provided, as here the record justifies that award, and judge did not abuse his discretion on awarding wife the entire marital residence after forty-four year marriage. (2) Judge did not err in finding that trust had been established for the benefit of the parties’ son, and was an asset subject to equitable distribution.
McGowan v. McGowan, App. Div. (per curiam) (9 pp.) Although the panel affirms the enforcement of the order for delinquent counsel fees, it reverses the remaining provisions and remands for a plenary hearing, finding unresolved issues of material fact regarding, inter alia, (1) defendant’s assertions that he made significant cash payments towards due equitable distribution payments and support not reflected in plaintiff’s computations; and (2) what was done by the daughter under her obligation to apply for financial aid and student loans for college.
Ditzel v. Ditzel, App. Div (per curiam) (5 pp.) Judge did not err in denying defendant’s application to set aside the equitable distribution agreement incorporated into the judgement of divorce, where defendant received a full hearing respecting the terms of the agreement in open court and where the terms of the agreement were placed on the record in his presence, an he made no objection.
Vastardis v. Vastardis, App. Div. (per curiam) (9 pp.) Merely because plaintiff did not fully investigate the tax consequences of his receipt in equitable distribution of the parties’ U.S. Savings Bonds does not render the settlement agreement inequitable or unfair, nor has the plaintiff proved mutual mistake on the basis of which the agreement should be invalidated.
Neigel v. Neigel, et al., App. Div. In factually complex post-divorce matter involving prior appeals and remand orders for the judges’ determination on equitable distribution – specifically their orders regarding distribution of various real estate owned by the defendant – the court finds that (1) the judge on remand had the authority to increase the prior award and make new credibility findings to support the increase, and affirms certain of the awards while reversing other; (2) the value of mortgage forgiven by defendant’s mother should not have been deducted from the value of one of the properties in distribution; and (3) matter is remanded for a determination of defendant’s request for reconsideration of alimony in light of the new equitable distribution award.
Fulton v. Fulton, App. Div. Court affirms divorce judgement awarding, inter alia, one-half of defendant’s lottery winnings to plaintiff after a forty-one year marriage, after non-compliance with many discovery orders, inexplicably, neither defendant nor his counsel appeared at the plenary hearing scheduled (three times) by the judge to examine the issues regarding the underlying marriage and defendant knowingly forfeited his right to any further hearing. The panel is constrained to note that, in its collective judicial experience, the incompetence, contumacious conduct, and ethical improprieties of defendant’s counsel are unparalleled by far, and a copy of the opinion is ordered transmitted to the office of attorney Ethics at the trial judge has filed ethics charges – for the first time in his nineteen years on the bench against that attorney.
Vasnovich v. Vasnovich, App. Div. (per curiam) Judge properly found that both parties, then represented by counsel, knowingly executed in their Pennsylvania divorce an affidavit of consent with full knowledge of their property settlement and support agreement, thus barring, as res judicata, any further consideration of equitable distribution of marital property contrary to the terms of the PSA; any relief from the divorce judgement must be sought in the state courts of Pennsylvania.
Richards v. Richards, App. Div. (per curiam) (6 pp.) (1) Court affirms trial judge’s finding that defendant’s plumbing corporation was subject to equitable distribution since, although the entity was incorporated four years before the marriage, the parties were cohabiting at the time; and (2) court affirms trial judge’s crediting of plaintiff’s proofs presented in support of her contention that she contributed $15,000 from the sale of her earlier residence to renovate and furnish the marital residence titled in the name of the plumbing corporation; however (3) the panel is troubled by the trail judge’s wholesale implementation of defendant’s theory that the value of the corporation should be reduced by the cost of sales and taxes, since the appellate court had consistently held that, for purposes of equitable distribution, an asset’s present value should not be discounted for future, contingent tax consequences or expenses. Since matter must be remanded for a calculation of the business alimony award is also remanded, since it may be affected by any change in the equitable distribution award.
Friend v. Friend, App. Div. (per curiam) (4 pp.) Although the details of the parties’ settlement was very poorly set forth on the record, there is not doubt that the agreement contemplated that two independent persons would act on certain valuation questions before there could be nay certainty or finality to the case; thus, setting aside or modifying the settlement at this point would not be appropriate as the independent valuation opinions may refine and narrow the actual areas of dispute.
Miller v. Smarrito, App. Div. (per curiam) (24 pp.) (1) Judge was justified in finding time-barred defendant’s motion for relief from the conforming equitable distribution order, rejecting his argument that his prior attorney’s disbarment and subsequent retention of new counsel constituted exceptional circumstances justifying his delay in filing for relief. (2) regardless of what distribution method the court might have used, the parties settlement agreement must prevail as to the calculations under the CEDO, since both parties took a risk at the time the agreement was made, and entered into the agreement voluntarily and with the assistance of counsel. (3) Judge did not articulate his reasoning behind granting plaintiff’s request for counsel fees, and the award is reversed.
Evey v. Evey, App. Div. (per curiam) (4
pp.) After making further determinations
regarding defendant’s incredibility on reconsideration, the judge properly
revised his original 35% to 65% property distribution to a redistribution in
almost equal shares, strongly chastising defendant and his attorney for their
unilateral appropriation of escrowed marital funds while reconsideration was
pending, and explaining how defendant’s course of conduct throughout the
litigation evidenced his bad faith toward plaintiff, his wife for forty years.
Mailman v. Mailman, App. Div. (per curiam) (33 pp.) Inter alia, the
panel holds that the motion judge interpreted R. 4:50-1 too restrictively in denying, as time barred, plaintiff’s
application to vacate or reopen the final judgment of divorce or to modify the
property settlement agreement to seek equitable distribution of a post-divorce cash
and stock option bonus received by defendant from his employer after the
divorce, but allegedly earned as a result of efforts expended during coverture;
plaintiff has produced sufficient information to afford her the right to
discovery concerning the awarding of the stock bonus monies.
Bolger v. Bolger, App. Div. (per curiam) (5 pp.) Judge erred in
ordering a sale of defendant’s real estate tax shelter and investment business,
rather than grappling with the admittedly difficult task of valuing the
business assets; the judge had the obligation to resolve the valuation issue,
since neither party requested the sale of the business, and should have used
independent experts to assist him if necessary in making the required
determination of value.
Billera v. Billera, App. Div. (per curiam) (6 pp.) From the colloquy between the unrepresented defendant and the judge, it appears that the defendant was misled into believing that equitable distribution of the marital residence was not an issue in the case; inasmuch as the issue was very much in the case, as was the question of his mother’s participation in the purchase of the property, the judge erred in refusing to hear the mother’s testimony, and matter is remanded.
Scull, Jr. v. Scull, App. Div. (per curiam) (3 pp.) The trial court erred in determining that a down payment on the parties’ marital home – taken from the parties joint checking account into which the plaintiff had deposited proceeds of a personal injury settlement – was not subject to equitable distribution.
Oldham v. Oldham, App. Div. (per curiam) (7 pp.) The trial judge abused his discretion when he refused, despite the parties’ request that he do so, to grant equitable distribution of two jointly-owned properties when he granted a dual judgment of divorce. [Decision dated Dec. 14, 1999.]
Lauda v. Lauda, App. Div. (per curiam) (8 pp.) (1) Court affirms the trial judge’s distribution of stock obtained as a result of plaintiff’s employment, finding the judge’s approach a reasoned one designated to solve a problem not of plaintiff’s own making – to wit – the employer’s failure to indicate a particular purchase date for any of the original shares received by plaintiff. (2) Court reverses, however, the judge’s distribution of plaintiff’s mutual funds, holding that the judge erred: (a) in concluding there was no evidence that plaintiff had commingled any of the money she inherited from her parents with marital property; and (b) in drawing an adverse inference against defendant because he did not testify.
Schieve v. Schieve, App. Div. (per curiam) (8 pp.) In ordering the sale of the marital premises by a receiver, the panel affirms most of the actions by the trial judge, finding that: (1) the trial court had an extremely sound basis for concluding that plaintiff’s claimed desire to purchase the home was highly questionable; (2) although the judge’s method of determining the value of the property was questionable, plaintiff is judicially estopped from arguing that she was entitled to a plenary hearing on the issue, as her counsel agreed that such a hearing was not required and that the judge should decide the issue based on the evidence before him; and (3) the judge balance the equities and determined that fairness dictated denial of both plaintiff’s request for interest on arrearages due from defendant (to be deducted from his share of the proceeds) and defendant’s request that plaintiff pay compensation for her continuing to live in the marital premises which were supposed to have been sold over twenty years ago; however, (4) since the judge gave no reasons for his decision ordering that plaintiff bear the entire cost of the receiver, this matter must be remanded.
Behrens, etc. v. Behrens, App. Div. (per curiam) (5 pp.) The judge erred in denying plaintiff equitable distribution of defendant’s pension, but did not err in denying plaintiff’s request for an award of counsel fees. Plaintiff’s claim of error regarding the judge’s denying her a share of defendant’s settlement of a wrongful termination of employment suit is dismissed. [Decision dated Jan. 26, 2000.]
Schwartz v. Schwartz, App. Div. (per curiam) (12 pp.) in this appeal in which the focal points are defendant income from his law practice, has control over disbursement of that income, and his personal fiscal accounting practices after the parties’ separation, the court affirms the judge’s identification and valuation of assets eligible for equitable distribution, with a few exceptions as noted, which require remand for further findings.
McAndrew v. McAndrew, App. Div. (per curiam) (6
pp.) The panel affirms the judge’s equitable distribution award to defendant of
$69,000, representing her share of market business owned by the parties and run
by plaintiff. The court also affirms the
$12 per week child support order.
Crawley v. Crawley, App. Div. (per
curiam) (12 pp.) The court properly granted wife's motion to enforce litigant's
rights under the parties' PSA, requiring husband to transfer to wife additional
securities with a face value making up the difference in value of securities
she was to have received under the PSA, and the value that the husband, in
fact, transferred to her. In so doing, the court rejects the husband's
contention that, although the PSA stated that the wife was entitled to
securities with a face value of $700,000 as of the date of the settlement, he
was entitled to give her the declined value of $630,000 because the securities
declined in value between the date of the settlement and the date of actual
transfer. Obviously aware of the potential fluctuation in value, the parties
agreed to a specific face value amount as opposed to a percentage of the
securities or a valuation as of a specific date; there is nothing particularly
inequitable in the enforcement of that aspect of the PSA. The panel does,
however, find that the award of counsel fees to plaintiff was erroneous.
Karecky v. Karecky, App. Div. (per curiam) (8 pp.) The trial court did not abuse its discretion in declining to award counsel fees to either party in this case; but it did err by not equitably distributing the marital home. Here, the defendant voluntarily gifted joint ownership of the home to plaintiff, despite his testimony that he never expected her to assert her rights as a joint owner; as a matter of law, therefore, in the absence of fraud or other misconduct on behalf of plaintiff, defendant's execution of the deed rendered the property marital and subject to equitable distribution.
Hughes v. Hughes, App. Div. (per curiam) (2 pp.) The court rejects defendant's argument that plaintiff's thrift plan appreciation was improperly distributed, since the record reflects defense counsel's stipulation -- never disavowed -- that the parties agreed to 50% division of that asset.
Mizell v. Mizell, App. Div. (per curiam) (6 pp.) Where the wife's contributions to the marriage dwarfed the husband's and those contributions and her management of the family's finances were primarily responsible for the family's accumulation of assets, and the husband's contribution's to household management and child care were relatively small, the husband is entitled to 25%, not 50% (as awarded by the trial court) of the wife's pension in equitable distribution.
Roddy v. Roddy, App. Div. (per curiam) (2 pp.) Over the ex-husband's objections, the panel affirms the economic elements of the judgment of divorce entered after trial. Inter alia, there was sufficient evidence to support the trial judge's determinations concerning the husband's income and business expenses, and the judge's rulings regarding equitable distribution.
Estate of Dolge, etc. v. Dolge, App. Div. (per curiam) (9 pp.) The appellate court finds that remand is necessary with respect to most of the issues raised in defendant's appeal. The only issue which can be affirmed is the judge's allocation of the parties' credit card debt; while most of the debt was incurred by plaintiff unilaterally after the separation, the evidence supports the judge's conclusion that approximately one-third of the debt was incurred due to defendant's failure to pay full support. As to the remainder of the appeal, the panel remands for further consideration on, inter alia, the issues of: (1) the valuation of defendant's pension; (2) plaintiff's motion to reduce her share of defendant's retirement accounts to a monetary judgment; (3) defendant's contention that the vacation property, half of which he inherited from his intestate parents, and half of which he bought out from his brother, was exempt from equitable distribution; and (4) defendant's request for a credit for overpayment of child support during the period in which his son was emancipated. The judge should also consider whether the equitable distribution scheme should be somehow recast in light of plaintiff's death.
Bobrowski v. Bobrowski, App. Div. (per curiam) (6 pp.) The Family Part judge erred in denying defendant's motion to enforce litigant's rights, where the QDRO entered, prepared by a specialist and not one of the parties' attorneys, clearly included a provision that did not accord with the parties' settlement agreement. The motion judge erroneously felt that the critical issue was whether the thrift plan was a passive or active asset, and concluded that it was a passive asset for which both parties should share in the enhanced value from the date of the complaint to the date of distribution. Generally, this would be true, except where, as here, the parties have otherwise agreed. The parties here agreed as to the date of valuation for the purposes of determining plaintiff's share, which included a contemporaneous reduction of that amount to offset what plaintiff owed defendant for his interest in the marital home, based on a value as of the date of the agreement. Whether the thrift plan asset was active or passive, therefore, was immaterial.
Samouhos v. Samouhos, App. Div. (per curiam) (5 pp.) The motion judge erroneously overlooked an obvious ambiguity in the parties' property settlement agreement when he denied the wife's motion to enforce the terms of a paragraph dealing with the parties' investment income property; remand is required.
Behrens, etc. v. Behrens, App. Div. (per curiam) (2 pp.) Although plaintiff -- the estate of the deceased wife -- asserts that the judge should have awarded it 50 percent of the defendant's pension, the court affirms supplemental judgment of equitable distribution awarding the estate a 20 percent interest therein.
Hamed v. Hamed, App.
Div. (per curiam) (3 pp.) Having observed the witnesses and evaluated their
credibility, the judge justifiably concluded that plaintiff had already
received her share of the proceeds from the equitable distribution of the
marital home, after defendant was given credit for various costs pertaining to
the purchase and improvement of the property.
Anderson v. Anderson, etc., App. Div. (per curiam) (3 pp.) In the parties' settlement, the defendant was to buy out the plaintiff's share of the marital premises and the amount of the buyout was specified in the PSA. Subsequently, however, defendant allowed the property to go into foreclosure and filed for bankruptcy. Through plaintiff's efforts, the property was sold to a third party for an increased amount, due to the surge in the real estate market; and plaintiff requested an increase in his original share. The panel holds that the Family Part judge erred in refusing to reopen the equitable distribution issue on the increased value of the house, leaving plaintiff to what he had agreed to in the settlement. The increase in the asset between the time of the settlement evaluation and actual distribution should be equally divided by the parties where the increase is fortuitous and due merely to inflation or other economic factors.
Zanghi, etc. v. Palmonari, App. Div. (per curiam) (21 pp.) The judge erred in determining, without a plenary hearing, that plaintiff was not entitled to enforce that portion of the parties' PSA which directed defendant to pay her $100,000 upon the "sale" of defendant's interest in a marina property. Although the marina was not sold, but was foreclosed upon, a plenary hearing is required to determine the parties' intention with respect to whether the "sale" of the property triggered plaintiff's entitlement to the money, or just defined the timing of the payment of such entitlement.
Logiudice v.
Logiudice, App. Div. (per curiam) (12 pp.) Where the judgment of divorce
provided that defendant sell the gas station and split the net proceeds with
plaintiff, but instead defendant's parents formed a corporation and proceeded
to levy an execution on the station and purchase it at a sheriff's sale, the
lower court's order that defendant, his parents and their corporation pay
plaintiff for her interest in the property is affirmed.
Reccoppa v. Reccoppa, App. Div. (per curiam) (9pp.) The trial court order directing defendant-former husband to contribute one-half of the costs of bringing the former marital home up to the local building code, permitting him to obtain his own estimate of those costs, and requiring plaintiff-former wife to prove that the home was in violation of the code is affirmed but modified for consideration, on remand, whether defendant engaged in spoilation of evidence of water damage resulting in the denial of her insurance claim and whether plaintiff is therefore entitled to some credit for the reasonable value of the claim had it been properly presented.
Bank v. Bank, App. Div. (per curiam) (9 pp.) Where the parties' PSA was not a model of clarity with regard to the sale of the family business, the record supports the judge's conclusions that defendant had a fiduciary duty to protect not only his own interest, but that of plaintiff as the other shareholder; that he had failed in that duty to produce a "suitable third party buyer" within the time period allowed under the agreement because he could not obtain the proposed purchasers' personal guarantees that the purchase price would be paid; and, therefore, plaintiff was entitled to buy out defendant's interest in the business.
Savio v. Savio, App. Div. (per curiam) (4 pp.) The court rejects the appeal of the plaintiff-ex-wife to the equitable distribution award contained in the parties' final judgment of divorce, including her challenges to the valuation of the marital assets, allocation of assets between the parties and the denial of her request for counsel fees.
Hyatt v. Estate of Hyatt, et al., App. Div. (per curiam) (7 pp.) The panel is satisfied from its review of the voluminous record in this matter that it should affirm the substantive provisions of the judgments challenged -- the equitable distribution of the marital residence (the parties' only asset) and the requirement that plaintiff be substituted for defendant's parents as trustee of the irrevocable trust for the two children of the marriage established by defendant's life insurance policy. The judge properly ordered the sale of the residence, and directed that defendant's parents' mortgage -- of uncertain and unproved remaining balance -- be deducted from defendant's half share of the net proceeds. In so doing, she took into consideration that defendant and his parents had continued to live rent-free in the home since plaintiff's departure, and that defendant had failed to maintain the property after plaintiff left.
Polillo v. Polillo, App. Div. (per curiam) (11 pp.) The trial court correctly found that the parties had originally intended that defendant receive a certain parcel of real estate in equitable distribution. However, the panel finds no basis in fact or law to support the trial court's conclusion that defendant's ownership should then be burdened by a grant of an easement to plaintiff. The panel reverses, as well, the modification of the divorce judgment granting two credits, one to defendant, and one to plaintiff, which sums reflect inappropriate re-determinations by the judge of computations he had performed at the time of the divorce regarding some of the parties' properties. Given the parties' stipulation of settlement resolving a number of financial claims based on those determinations, there was no justification for revisiting just those two issues and leaving the agreement otherwise intact.
Clarke v. Clarke, App. Div. (Kestin, J.A.D.) (9 pp.) As to the issues bearing upon equitable distribution of pension rights, where the pension was not in pay status, the court finds that the matter was not completely adjudicated, and therefore dismisses the appeal as interlocutory. The trial judge erred in relying on his own unpublished opinion in another matter. He also erred in ruling that a motion for reconsideration of the judgment of divorce was untimely because it was filed months after his oral disposition, although only one week after the judgment of divorce was entered. The time frame for making a motion for reconsideration runs from the entry of a signed order or judgment, not from the oral disposition preceding it. [Approved for publication Mar. 8, 2002.]
Sculler v. Sculler, Law Div. (Perri, J.S.C.) (10 pp.) The court entertains the defendant's motion in limine seeking a clarification of the relative burdens that the parties bear when one spouse seeks equitable distribution of the increase in value of a pre-marital asset owned by the other spouse -- here, a manufacturing and marketing business. Proof that the asset is immune from equitable distribution raises a rebuttable presumption that any subsequent increase in value will also be immune. The burden then shifts to the non-owner spouse to demonstrate that (1) there has been an increase in the value of the asset during the term of the marriage; (2) the asset was one which had the capacity to increase in value as a result of the parties' effort; and (3) the increase in value can be linked in some fashion to the efforts of the non-owner spouse. If this is shown, the presumption has been rebutted successfully and the matter is to be resolved by the trier of fact. [Decision dated Jul. 9, 2001.][Approved for publication Mar. 11, 2002.]
Monteforte v. Monteforte, App. Div. (per curiam) (11 pp.) Trial court correctly distributed spouse's Public Employees Retirement System and military pensions by entering QDRO's which applied a coverture fraction to his final salary and final military rank, rather than the salary and military rank that existed at the time the divorce complaint was filed.
Hanson v. Hanson, App. Div. (per curiam) (18 pp.) Although most of the Family Part judge's determinations in his detailed 84-page opinion are supported by the record, the appellate court reverses the equitable distribution award and the judge's determination of the trial date as the cut-off date for determining what assets were subject to equitable distribution. While the judge did not err in using the term "momentum" to describe the impressive consistent upward trend in defendant's earnings over a period of several years as to issues other than equitable distribution, such as spousal support, the court is unable to approve the employment of "momentum" as a legal doctrine or a rule of law on which a court can predicate a determination of the assets or liabilities of the marital estate or fix the date for determining the distributable assets and liabilities of the marriage. It may be that the judge's equitable distribution findings are sustainable under the correct principles of law, but the panel is unable to determine whether this is the case on the record before it. Remand is required for consideration of equitable distribution under the correct principles of law, and not the "momentum" approach.
Kaplan v. Kaplan, App. Div. (per curiam) (10 pp.) The court affirms the Family Part judge's determination that plaintiff's income-producing activities as reflected on his federal income tax form -- Schedule C income -- was not income earned from a "business" subject to equitable distribution. It also rejects defendant's challenge to the "grossing up" of her Gruntal account, adding an amount representing monies withdrawn by her pendente lite for taxes and expert fees. The court also affirms the alimony award. It does reverse, however, that aspect of the judgment crediting plaintiff with a hypothetical 6% broker's commission in connection with the award of the marital home to him.
ALIMONY & EQUITABLE DISTRIBUTION
Wilson v. Wilson, App. Div. (7 pp.) Order finding defendant in violation of litigant’s rights and requiring him to pay attorney’s fees and equitable distribution to wife within thirty days or risk the issuance of a bench warrant is reversed, since the record indicates that defendant did not willingly violate the terms of a prior court order, and shows that he was making a good faith attempt to pay his financial obligations to the wife.
Stiffler v. Stiffler, Chanc. Div. (9 pp.) In a case discussing the extent to which the existence of an asset, exempt from equitable distribution, may be considered in the creation of an alimony award, the court extends Aronson, which held that the interest income generated by an inheritance could be considered in modifying an earlier alimony award, and finds that plaintiff cannot insulate his inheritance from the alimony calculus by transforming it into a non-income producing asset- here, a new home – and modifies the alimony award based upon the imputed income of that portion of plaintiff’s new $495,000 home which exceeded the value of his actual need for shelter after the sale of the $230,000 marital home. [Decided May 15, 1997; Approved for publication Aug. 12, 1997.]
Sarwin v. Sarwin, App. Div. (per curiam) (6 pp.) Judge appropriately: (1) denied an adjustment of equitable distribution to allow defendant a credit for capital maintenance costs with respect to a commercial building he owned because defendant failed to submit sufficient evidence that he had incurred to claimed expenses; (2) rejected defendant’s request for an adjustment of attorney’s fees he was required to pay under the final judgment, noting numerous instances where defendant had operated with punitive design, stonewalled, and litigated in bad faith; (3) denied reimbursement of the overpayment of alimony by defendant, noting his unwarranted delay in satisfying his equitable distribution obligations under the judgment, and the protracted litigation required to obtain his compliance; and (4) denied defendant a QDRO, concluding that he had not produced any relevant tax returns information, or other financial documentation or analysis that could guide the court.
Smith v. Smith, App. Div. (per curiam) (45 pp.) The panel once again considers this matter on appeal, following its remand to the trial court on the issues of equitable distribution, alimony and counsel fees. Inter alia, the panel holds that the trial court mistakenly focused solely on the income from plaintiff's disability benefits and failed to look at the income available to him from proper investment of his portfolio. Although defendant is not blameless for her own depressed financial state, in light of the parties' marital history, the panel finds relief is warranted and modifies the judge's reduction of permanent alimony -- from $10,000 to $3250 -- to $5000 per month, retroactive to the date of the judge's decision. The panel also adds $36,000 to defendant's equitable distribution award, finding that the judge erred in reevaluating plaintiff's medical practice. Finally, the panel confirms the counsel fee award in favor of defendant of $50,000 on the original appeal, and $25,000 on the remand hearing.
Mele v. Mele, App. Div. (per curiam) (16 pp.) (1) Interpreting the unambiguous and clear terms of the PSA, the Family Part judge did not err in denying defendant a credit of approximately $165,000 against his equitable distribution obligation to plaintiff for her alleged "rental" obligation on the marital premises during the four-year delay of her purchase of a new home. (2) The judge clearly erred, however, in accelerating payment of the equitable distribution debt and requiring a lump sum payment, rather than the monthly installment payout provided for in the PSA.
EQUITABLE DISTRIBUTION ALLOCATION – ALIMONY
Magnapera v. Magnapera, App. Div. (per curiam) (8 pp.) (1) The court did not abuse its discretion in formulating the equitable distribution award with a percentage allocation of 55/45 in favor of defendant, when viewed against the economic background of this nine-year marriage. (2) Where motion judge clearly reserved defendant’s right to seek enforcement of the pendente lite order following the dismissal of the complaint, it was still extant and enforceable at the time of the final judgment, and any arrears that accrued to that point were clearly due and owing to defendant. (3) The judge erred in making an award of permanent alimony on the facts of this case.
EQUITABLE DISTRIBUTION – IMPUTED INCOME
Sobel v. Sobel, App. Div. (per curiam) (20 pp.) (1) Trail judge, finding the parties’ history to be a classic example of shared enterprises by spouses in advancing and enhancing the career of a professional spouse, properly determined that wife was entitled to fifty percent of the net assets, including husband’s veterinary practice. (2) Judge did not err in refusing to impute income to wife based in husband’s claim that has had deliberately avoided returning to her former school teacher’s job, since the judge found that she had tried, but, due to her age and experience, could not find work; permanent alimony award is affirmed.
EQUITABLE DISTRIBUTION – STOCK OPTIONS
Klein v. Klein, App. Div. (per curiam) (10 pp.) On plaintiff’s motion to clarify the
equitable distribution portions of the divorce judgement with respect the
defendant’s employee stock options, the judge did not err in (1) awarding fifty
percent of all defendant’s stock options; (2) awarding plaintiff fifty percent
of all of the option grants for certain years; (3) awarding plaintiff a credit
on one year’s option grants as of their maturity date; and (4) valuing the
options as of the date of trial.
EQUITABLE DISTRIBUTION – PUBLIC PENSIONS
La Salla v. La Salla, et al., Chancery Div. (DePascale, J.S.C.) (30 pp.) Analyzing the interrelationship between, the histories of, and the policies behind, the statutes governing public retirement systems and equitable distribution, the court considers the appropriate limit of its authority when distributing a Police and Fire Retirement System pension between divorcing spouses; the court finds that the non-employee spouse’s interest is secured by operation of law, and that she, in effect, becomes a limited member of the PFRS, her right to her distributive share is independent and fixed by the court. [Decided April 28, 1999; Approved for publication Aug. 4, 1999.]
La Sala v. La
Sala, et al., App. Div. (Lefelt, J.A.D.) (13 pp.) Although acknowledging
that the plaintiff was entitled to her equitable share of defendant's pension,
and mindful of the judge's concern that this was the only significant marital
asset and that plaintiff might be destitute without some immediate
compensation, the panel finds that the judge erred by ordering the Police and
Firemen's Retirement System to commence immediate monthly payments to
plaintiff, despite the fact that defendant had not yet retired. In so ordering,
the trial judge granted plaintiff rights in defendant's pension that no member
of PFRS enjoys. [Approved for publication Nov. 3, 2000.]
PARENTING PLANS – EQUITABLE DISTRIBUTION
Scarrone v. Coran, App. Div. (per curiam) (9 pp.) (1) The judge did not err in failing to divide parenting time equally in the face of his finding that both parties were equally fit parents; the award of more than half the parenting time to defendant does not have to be supported by findings that she was a better caretaker, that the children fared better under her care, both socially and academically, or that she was the more cooperative party. (2) The judge did not mistakenly exercise his discretion in dividing the IBM stock and stock options.
EQUITABLE DISTRIBUTION – CHILD SUPPORT
Kahn, etc. v. Abramovici, App. Div. (per curiam) (9 pp.) (1) The judge accurately granted plaintiff's motion for enforcement of litigant's rights, requiring defendant to pay a portion of his pension benefits pursuant to the agreement of equitable distribution, where it appeared that defendant took a lump sum payment of his pension in violation of the divorce judgment and refused all of plaintiff's requests for her ordered share thereof. (2) The judge also properly ordered defendant to pay additional sums related to his children's college expenses, and denied his cross-request for reimbursement of amounts he contended he overpaid. The PSA and a subsequent order clearly tied the college expense obligation to the ability to pay; and without income information from defendant, his claims for these extraordinary bills raised no factual basis or context in which to evaluate them.
Ehrenkranz v. Ehrenkranz, App. Div. (per curiam) (10 pp.) The panel affirms the actions of the lower court denying plaintiff's motion, inter alia, seeking to vacate or modify that portion of the equitable distribution determination in the final judgment of divorce pertaining to the former marital residence and seeking to modify the responsibility for payment of his son's college costs. The parties, with full knowledge, disclosure, and representation of counsel, had agreed that plaintiff would receive the first $50,000 of the net proceeds of the sale of the residence, and defendant the balance, in consideration for which she waived alimony. Plaintiff argued that the house sold for almost $150,000 higher than the value used to fix his $50,000 entitlement, and sought an additional distribution, alleging "newly-discovered evidence." The judge properly rejected this approach. Further, he properly rejected plaintiff's challenge to his son's college costs, noting that the costs were paid from trust monies, and plaintiff had not spent "one nickel" toward these allegedly excessive costs.
EQUITABLE DISTRIBUTION – PENSION VALUATION
Collins v. Collins, App. Div. (per curiam) (10 pp.) Where parties jointly retained an expert actuary to evaluate a pension, and the expert utilized a number of assumptions which were clearly stated, including the anticipated date of retirement, the fact that subsequent events, including pensioner's forced early retirement later diminished the value of the pension, the evaluation made part of the final judgment was not the result of mistake sufficient to compel reformation of the agreement.
EQUITABLE DISITRBUTION – SPOUSAL SUPPORT
Mutchko, Jr. v. Mutchko, App. Div. (per curiam) (23 pp.) In challenging the judgment of divorce, defendant complained that, when she relinquished her rights to most of the marital assets in exchange for plaintiff being responsible for the significant marital debts, she believed that she would be "debt free"; since she was still legally obligated on the debts, her credit rating, and consequent financial posture, were adversely affected, and she moved to reopen the equitable distribution and spousal support provisions of the judgment. The judge found that defendant was not entitled to relief under either R. 4:50-1(f) or Lepis. The appellate court notes that defendant cannot regain a credit-worthy status by agreement with her former spouse, since she participated in the accumulation of the debt, and had filed for bankruptcy. The judge, therefore, did not abuse his discretion in denying defendant's motion to reopen the equitable distribution provision of the judgment under R. 4:50-1(f). With respect to the Lepis application, however, because of intervening procedural circumstances arising as a result of an emergent application and remand order entered subsequent to the filing of the appeal, the appellate court modifies the order and remands for further proceedings in the Family Part. Defendant's subsequent filings document unemployment, mental health and housing crises, which may suggest that she can demonstrate sufficient changed circumstances to warrant further proceedings.
EQUITABLE DISTRIBUTION – COUNSEL FEES
Foy v. Foy, App. Div. (per curiam) (7 pp.) Over plaintiff's objections, the panel affirms that portion of the final judgment of divorce addressing equitable distribution of assets and debt, as well as the judge's decision not to award counsel fees to plaintiff. Despite plaintiff's contention that defendant's repeated non-compliance with orders caused her to file numerous enforcement applications, the judge found that both parties had violated court orders.
EQUITABLE DISTRIBUTION – ENFORCEMENT
Buscemi v. Buscemi, etc., App. Div. (per curiam) (8 pp.) The arguments of plaintiff to set aside the PSA incorporated into the divorce judgment are without merit; however, the court reverses that part of the order directing probation enforcement of equitable distribution payments under R. 1:10-3. The amount of plaintiff's obligation has been reduced to judgment, and is comprised of payments due to defendant as equitable distribution as opposed to support. Therefore, there is no basis for probation enforcement of the obligation.
EQUITABLE DISTRIBUTION – CORPORATIONS – GIFTS
Brown v. Brown, App. Div. (Wecker, J.A.D.) (35 pp.) Under the rationale of Balsamides v. Protameen Chemicals, Inc. and Lawson Mardon Wheaton, Inc. v. Smith, which adopt the position of the American Law Institute, neither marketability nor minority discounts apply to the valuation of defendant's 47 ½ percent interest in a closely-held corporation for purposes of equitable distribution. However, reversing the trial judge, the court also holds that the uncontroverted evidence established that defendant's shares in the corporation were gifted to him by his parents on various dates during the marriage, and that only the increase in the value of those shares is subject to equitable distribution. The court agrees with the trial judge that defendant failed to prove that his one-third interest in a family-owned real estate partnership was acquired by gift. Although affirming the child support and alimony awards, the court recognizes the interplay between these concerns and equitable distribution, and permits the judge on remand to reconsider these awards, in his discretion, in light of any substantial change in the equitable distribution award on remand. Finally, because the judge considered defendant's position on the gifting issues to evidence bad faith, which he factored into the counsel and expert fee award to plaintiff, those awards are remanded for reconsideration as well. [Approved for publication Feb. 28, 2002.]
EQUITABLE DISTRIBUTION – CORPORATIONS
Sirot v. Sirot v. Sirot, et al., App. Div. (per curiam) (10 pp.) This matter was remanded to allow the parties to cross-examine the court-appointed expert with respect to his valuation of plaintiff's interest in the closely-held corporation in which he and the co-defendant -- his brother -- each held one-half interest. The panel finds that the Family Part judge was well within the bounds of her discretion to accept the court-appointed expert's methodology and his conclusions in that regard, and affirms her order directing that plaintiff and the co-defendant pay an additional $78,000 in equitable distribution to defendant, bringing her total distribution to $245,000, representing 35 percent of one-half value of the corporation.
EQUITABLE DISTRIBUTION – IRAs
Pierzchala v. Pierzchala, App. Div. (per curiam) (9 pp.) The Family Part judge mistakenly exercised his discretion in affording inconsistent treatment in the valuation of the parties' retirement accounts, both of which consisted of stocks. The panel agrees with defendant that plaintiff's IRA was a passive, rather than an active asset, as was his retirement account; both assets should have been valued as of the date of the hearing (distribution). The judge thus erred in excluding from equitable distribution the additional $53,000 which had accrued in plaintiff's IRA between the date the complaint was filed and the date of distribution.
EQUITABLE DISTRIBUTION – PENSIONS
Matlack, etc. v. Matlack, App. Div. (per curiam) (5 pp.) Given the language of the parties' agreement, the panel finds that the Family Part judge erred in declining to apply the "coverture fraction" in the deferred equitable distribution of defendant's two pensions to plaintiff, his former wife.
Kunz v. Kunz, App. Div. (per curiam) (6 pp.) Despite defendant's objections, the Family Part judge's equitable distribution determinations are fully supported by the record, including his decisions: (1) to award defendant only a 40% credit in the distribution of the equity of the marital home and (2) to reject defendant's assertion of a "present value" payout as to his share of plaintiff's unvested PERS pension.
EQUITABLE DISTRIBUTION – SETTLEMENTS
Falk v. Falk, App. Div. (per curiam) (9 pp.) The court justly enforced the settlement defendant reached with her husband during a hearing regarding equitable distribution, rejecting her contention that the settlement was coerced. The judge's determination in the remand proceeding, that defendant freely and voluntarily entered into the settlement without coercion or duress is entitled to substantial deference because the evidence introduced on that issue was almost entirely testimonial and involved assessments of credibility. The fact that the agreement was entered into in the midst of trial after the judge indicated his intent to cause the marital home to be sold in order to avoid foreclosure does not necessarily entitle defendant to relief.
Lane v. Lane, App. Div. (per curiam) (11 pp.) Initially the court questions whether this action challenging the divorce judgment was brought by plaintiff or his son of the same name. If the action was brought by the son, he has no standing as he is not the party aggrieved; and the court has not been provided with the alleged power of attorney to determine its scope. Additionally, if, as plaintiff alleges, he was incompetent at the time of the divorce, he would have been incompetent at the time he signed the power of attorney the following month. Even if the action had been brought by the plaintiff himself, however, the court would still affirm the trial judge's denial of plaintiff's motion. The judge's determination that defendant was entitled to a greater percentage of the marital assets was properly based on statutory criteria, and included his noting her age and health problems, and his finding that defendant had made more significant contributions to the marital home; faced a reduced standard of living as a result of the divorce; and had minimal income.
Capuano v. Capuano, App. Div. (per curiam) (30 pp.) The trial judge did not err in invalidating the parties' property settlement agreement as unfair under the circumstances of this case. The judge considered the duress and coercion argument advanced by the defendant -- that she signed the agreement under threat that the plaintiff would reveal her affair with another to alienate the children against her -- and, while the duress argument alone might not uphold the invalidation, the judge also found it unfair because of the financial imbalance between the parties, specifically, that the husband received 55% of the assets and that defendant waived alimony and child support, the latter being against "public policy." Additionally, the judge found that plaintiff knew his income would increase dramatically, and delayed his additional earnings until the PSA was executed. The matter must be remanded, however, for a recalculation of child support for one son; rectification of the judge's error in "double counting" the proceeds of the sale of the marital home in equitable distribution; and the judge's application of the wrong interest rate on existing arrearages. [Decision dated Jul. 2, 2002.]