Opinion
DOCKET NO. A-4009-14T4
12-07-2016
SUSAN BARBIERI BERGER, Plaintiff-Respondent, v. MARK J. BERGER, Defendant-Appellant.
Heymann & Fletcher, attorneys for appellant (Sandra N. Lomenzo, on the briefs). Haber Silver & Simpson, attorneys for respondent (Karin Duchin Haber, of counsel; Jani Wase Vinick, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fuentes, Carroll and Gooden Brown. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-856-12. Heymann & Fletcher, attorneys for appellant (Sandra N. Lomenzo, on the briefs). Haber Silver & Simpson, attorneys for respondent (Karin Duchin Haber, of counsel; Jani Wase Vinick, on the brief). PER CURIAM
Defendant Mark J. Berger appeals from certain provisions of the final judgment of divorce (JOD) entered in this matter on February 19, 2015, as well as companion orders entered on the parties' motions for reconsideration. He challenges the court's determinations regarding the imputation of income that was used to calculate his alimony and child support obligations; equitable distribution; counsel fees; and other matters. For the reasons that follow, we affirm in part and reverse and remand in part.
I.
We summarize the most pertinent portions of the testimony and evidence presented during the parties' divorce trial, which was held on June 10, 11, and 12, 2014; November 19 and 20, 2014; December 3 and 19, 2014; and January 12, 2015. The parties were married on September 13, 1987. At the time of trial, they owned three residences together, none of which were encumbered by a mortgage. The properties have been equitably distributed and are not at issue in this appeal.
The parties have two adopted children, a son born in November 1997 and a daughter born in September 2000. Both suffer from certain disabilities and have special needs. The son suffers from Attention Deficit Disorder (ADD) for which he is prescribed medication, and he meets with a psychiatrist every two months. The daughter suffers from Attention Deficit Hyperactivity Disorder (ADHD), language impairment, and anxiety. She meets with a psychiatrist every two months and receives speech therapy twice per week.
Plaintiff was fifty-eight years old at the time of the divorce. She is a medical doctor and was employed as a physician until 1997, when the oldest child was adopted. By agreement of the parties, plaintiff did not return to work and has remained at home attending to the children's numerous medical and educational needs.
Defendant was fifty-six years old at the time of the divorce and he too is a medical doctor. He completed his radiology residency at Memorial Hospital in Morristown in 1989, and a Body Imaging Fellowship at Beth Israel Medical Center in New York in 1990. In 1996, defendant established Hoboken MRI and thereafter served as its radiologist, medical director, and office manager.
Hoboken MRI maintained two sister companies for legal and accounting purposes: Magnetic Services Inc. (Magnetic), and Tesla Imaging Inc. (Tesla). Magnetic owned the equipment and paid all costs including the debt related to the equipment. Tesla employed the staff of Hoboken MRI, held the lease for the office space, and paid the general operating expenses of the business.
Defendant maintained a 100% interest in Hoboken MRI. He contended that his brother, Sheldon Berger, maintained a 20.5% interest in both Magnetic and Tesla that he acquired via a $94,000 capital contribution to the companies in approximately 2005 or 2006. Defendant's income at Hoboken MRI in the years preceding the divorce was $502,152 in 2007, $370,000 in 2008, $440,775 in 2009, $439,625 in 2010, and $399,906 in 2011, or an average of $430,492 annually.
It is undisputed that Hoboken MRI's business was destroyed by flood waters as a result of Hurricane Sandy in October 2012, including its MRI equipment that could not be repaired. Although the business maintained commercial insurance, it did not maintain flood insurance and the insurance carrier denied virtually all claims. Due to the destruction of the facility and its equipment, opening a new center was not a financially viable solution.
Just prior to trial, defendant's expert, Brian Corcoran, provided a reconciliation of the business accounts maintained by Hoboken MRI and its two sister entities, Magnetic and Tesla (collectively, Hoboken MRI), from December 2012 to April 2014. According to his analysis, Hoboken MRI's business accounts totaled $1,016,270 in December 2012, and $703,116 on April 30, 2014.
Defendant testified that Hoboken MRI's ongoing lease obligation will continue until 2018, and consequently the business will be required to pay approximately $2,000 per month for the remainder of the lease term. He also testified as to his efforts to secure employment after the destruction of the business. He stated that he applied for numerous positions with little success. He received only one offer of employment as an associate medical director with a radiology benefit management company at an annual starting salary of $160,000, which he declined. Instead, he enrolled in New York University's Masters of Public Health program.
Defendant presented testimony from a vocational expert who opined that if defendant was accepted into a fellowship program he could expect to earn $214,000 annually. Otherwise, defendant could likely earn between $146,000 and $201,000 as a medical director serving in an administrative capacity.
In addition to his interest in Hoboken MRI, defendant also maintained a twenty-percent interest in Hoboken Radiology, LLC. Another brother, Gary Berger, held a thirty-percent interest in the company. The remaining fifty-percent interest in Hoboken MRI was held by a group of investors called the "Gettinger Group." The only information defendant produced during discovery regarding the value of Hoboken Radiology was his income tax returns. However, evidence at the trial indicated that two of the Gettinger investors, including Ruth Madoff, each paid $850,000 for a 21.5% share of the company. According to defendant, he obtained his interest in Hoboken Radiology in exchange for the expertise he provided to the company; he never received any distributions from Hoboken Radiology; and he does not work at Hoboken Radiology.
The trial judge entered a final JOD and an amended final JOD on February 19, 2015, accompanied by a comprehensive written opinion. We focus only on the provisions of the JOD that pertain to the issues raised on appeal.
Plaintiff was awarded open durational alimony of $1,850 per week and child support of $400 per week for the two children. Both support calculations were based on an imputation of income to defendant in the amount of $312,000 annually, and no imputation of income to plaintiff.
With respect to equitable distribution, the court assigned an $800,000 value to defendant's twenty-percent interest in Hoboken Radiology, "based upon the value of Ruth Madoff's investment interest." The court then subtracted $500,000, which was the amount that Hoboken Radiology was required to pay back to the Madoff bankruptcy trustee. The court concluded "the net effect is that [d]efendant's [twenty-percent] share[] is now worth $300,000 and [fifty-percent] is an appropriate sum for equitable distribution to [] [p]laintiff." Accordingly, the JOD ordered defendant to pay plaintiff $150,000 for her one-half share of defendant's twenty-percent interest in Hoboken Radiology.
With respect to Hoboken MRI, the court reviewed various expenditures from the business accounts and concluded that $652,516 remained to be equitably divided. The court then awarded plaintiff forty percent, or $261,006.40, with defendant to retain the remaining balance. Additionally, the court concluded that the business had a "good will" value of $196,000, and awarded plaintiff $65,000, or approximately one-third, of the good will value.
Defendant does not challenge this good will award on appeal. --------
Finally, the court ordered defendant to pay plaintiff $60,000 "as a partial award of counsel fees." The court also ordered defendant to reimburse plaintiff $10,000 toward her expert fees.
On March 2, 2015, plaintiff filed a motion for reconsideration seeking, among other things, a correction of the calculation of her equitable distribution interest in Hoboken Radiology; a recalculation of alimony, child support, and collateral contributions toward child related expenses based upon an imputation of income to defendant of $430,692 annually; a fifty-percent interest in a $150,000 loan made from the Hoboken MRI business accounts; and counsel fees and costs related to her application.
On March 26, 2015, defendant cross-moved for reconsideration. He sought the recalculation of alimony, child support, and contribution toward child-related expenses based upon an imputation of income to him consistent with his vocational expert's assessment of $146,000, and an imputation of income to plaintiff based on part-time wages for a physician; recalculation of alimony based upon consideration of the correct value of plaintiff's share of equitable distribution; recalculation of plaintiff's equitable distribution interest in Hoboken Radiology based upon the $250,000 value of Ruth Madoff's 21.5% interest as determined by the United States Government or, alternatively, division of defendant's interest in Hoboken Radiology in kind; recalculation of plaintiff's equitable distribution interest in Hoboken MRI's business accounts with proper consideration of Sheldon Berger's 20.5% interest; and reversal of the counsel fee and expert fee awards.
On April 10, 2015, the court entered companion orders reapportioning the parties' responsibility for the children's unreimbursed medical expenses. The court also "[c]orrect[ed] the mathematical calculation related to [p]laintiff's equitable distribution interest in Hoboken Radiology by properly allocating 20% of the $500,000 debt of Hoboken Radiology to [] [d]efendant instead of 100% of said debt." Consequently, the court awarded plaintiff $350,000, rather than $150,000, for her one-half share of defendant's interest in Hoboken Radiology. All other relief was denied. This appeal followed.
II.
We begin by setting forth the principles that guide our analysis of a Family Part bench trial. Our standard of review requires us to 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) (additional citations omitted)). When the judge has made findings of fact after considering the testimony and documents the parties have presented during a non-jury trial, those 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. of Am., 65 N.J. 474, 484 (1979)).
That is so "[b]ecause 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). Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand[;]" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). 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.'" Clark, supra, 429 N.J. Super. at 70 (quoting Rova Farms Resort, Inc., supra, 65 N.J. at 484 (internal quotation marks and additional citation omitted)).
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) (internal quotation marks omitted)). 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.
Furthermore, "[t]rial judges are under a duty to make findings of fact and to state reasons in support of their conclusions." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (citation omitted); R. 1:7-4(a). "'Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion.'" Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990)). "Naked conclusions do not satisfy the purposes of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980) (additional citation omitted). We will be guided by these principles.
A.
We first address defendant's contentions with respect to the imputation of income. Defendant argues, among other things, that the trial court erred: in imputing $312,000 annual income to him while not imputing any income to plaintiff for purposes of calculating his alimony and child support obligations; in failing to issue specific factual findings to support the imputation of income, contrary to Rule 1:7-4; and in finding that he was earning significant income from Hackensack Radiology. We do not find these arguments persuasive.
For purposes of calculating alimony and child support awards, a trial court may impute income to one or both spouses. Mowery v. Mowery, 38 N.J. Super. 92, 104-05 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956); see Tannen v. Tannen, 416 N.J. Super. 248, 261 (App. Div. 2010) (noting that a trial judge "may impute income" in the process of "determining an appropriate alimony award"), aff'd o.b., 208 N.J. 409 (2011); Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002) ("Both the [child support] guidelines and the case law of this State explicitly permit the imputation of income where earnings cannot be determined [for child support purposes].").
In determining the amount of income to impute to a party, the court considers the party's potential employment and earning capacity, based on that individual's "work history, occupational qualifications, educational background, and prevailing job opportunities in the region." Pressler & Verniero, Current N.J. Court Rules, "Child Support Guidelines," Appendix IX-A to R. 5:6A (2017). Unearned income, i.e., income that can be generated from assets, may also be used to determine the appropriate support obligation. Stiffler v. Stiffler, 304 N.J. Super. 96, 101 (Ch. Div. 1997).
"Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). Accordingly, "[a] trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Overbay v. Overbay, 376 N.J. Super. 99, 106-07 (App. Div. 2005) (internal quotation marks omitted).
Here, in his initial decision, the judge stated, "It is simply unfair to conclude that [] [d]efendant can only earn $146,000. The court determines that [] [d]efendant should be earning $312,000 per year and will impute that sum to him." On reconsideration, the court elaborated, "Defendant should be earning $312,000 per year based upon his years of experience and track record of earnings."
We agree with defendant that the court's precise reasoning regarding the amount of income to be imputed to him is far from a model of clarity. Nonetheless, on this record, we conclude that the determination to impute $312,000 per year income to defendant does not constitute an abuse of discretion.
Initially, we note that the trial judge found that "[t]he preponderance of the evidence leads the court to believe that [] [d]efendant is intentionally unemployed and is pursuing a career that is not commensurate with his skill set." The judge found "it [] abundantly clear that [defendant] has taken a bad faith position concerning his lack of pursuit of meaningful employment. His testimony was also less than credible as to his ability to retrain and resume his radiology business." On reconsideration, the judge again rejected defendant's claim "that since he has been out of work [for] 2 1/2 years, he cannot find a meaningful job until he is totally retrained," finding "[h]is credibility in this regard is zero."
The judge also noted that both plaintiff's expert and defendant's own expert agreed that defendant's average annual income from 2007 through 2011 was $430,492. Notably, this amount did not include any additional earnings or distributions from Hoboken Radiology. Taking into account the destruction of defendant's business, the judge concluded that defendant should be imputed $312,000 annually rather than a higher amount. We are satisfied that the judge considered the proper factors in arriving at the amount of income to impute to defendant. Moreover, the judge's determination finds support in defendant's earnings history and earnings capacity, as well as the judge's evaluation of defendant's credibility.
While a somewhat closer question, we also find no abuse of discretion in the court's decision not to impute income to plaintiff. The judge found "[t]he evidence established that once the parties adopted their children, that [p]laintiff was designated as the stay-at-home mom and sole care taker. She has been solely responsible for caring for and managing the significant needs of both children throughout the marriage and continues to do so." On reconsideration, the judge amplified that this remained the case despite the children's ages. The judge further noted that while plaintiff is a trained physician, she was fifty-eight-years old and had not worked in over seventeen years. He concluded "[t]here is no believable evidence that [] [p]laintiff should be imputed any income whatsoever." Accordingly, at this time, we decline to disturb the judge's determination. We note that defendant is free in the future to seek modification of his alimony and child support obligations based on a demonstration of changed circumstances with respect to plaintiff's responsibilities for the children's medical and educational needs. See, e.g., Lepis v. Lepis, 83 N.J. 139, 148 (1980).
B.
Defendant argues that the trial court erred in calculating alimony and child support due to its erroneous reliance on the "reasonable compensation" calculation used by the parties' experts for purposes of determining defendant's good will. Defendant also argues that the court failed to properly consider plaintiff's share of equitable distribution when awarding alimony. Neither of these contentions warrant extended discussion.
Both experts concurred that $535,000 was the "reasonable compensation" amount to be utilized when calculating the value of defendant's good will in Hoboken MRI. Plaintiff urged the trial court to impute that annual compensation amount to defendant when calculating his alimony and child support obligations. The court disagreed, stating:
Defendant's expert, Mr. Corcoran, agreed with [plaintiff's expert,] Mr. Hoberman[,] that reasonable compensation equating to $535,000 should be used for purposes of calculating goodwill. However, this figure is inconsistent with Dr. Berger's historical W-2 earnings as a radiologist, there is no
basis for the [c]ourt to utilize this figure for purposes of determining support.Instead, as noted, the court imputed annual income of $312,000 to defendant for support purposes, an amount that is substantially lower than defendant's $430,492 average earnings from Hoboken MRI or the $535,000 "reasonable compensation" amount arrived at when calculating good will.
[(Emphasis added).]
In awarding alimony, the judge conducted a thorough analysis of the factors set forth in N.J.S.A. 2A:34-23. In his initial decision, the judge noted that one such factor was "[t]he equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, and of current income, to the extent its consideration is reasonable, just, and fair." Although in his initial written opinion the judge misstated the precise assets being distributed and their values, earlier in the opinion he noted, "it is abundantly clear that there is about $4 — 5 million at play. This is an important factor to consider."
In any event, any misstatement by the court was corrected on reconsideration, when the court noted "plaintiff will receive $1,645,974 in cash not including the unencumbered home ($800,000) or the $403,570 in retirement assets. Whereas the court [previously] referenced her receiving only $500,000 in liquid assets." The court also amplified its prior findings by noting that "the cash component of equitable distribution can be invested to generate additional savings should the need arise." Viewing the record as a whole, we do not conclude that the court improperly or unfairly considered plaintiff's share of equitable distribution in fashioning its alimony award.
C.
We next turn to defendant's arguments pertaining to the judge's determinations with regard to equitable distribution. The goal of equitable distribution is to bring about a "fair and just division of marital assets." Steneken v. Steneken, 183 N.J. 290, 299 (2005) (internal quotation marks and citation omitted). When distributing marital assets, a court must: (1) identify the property subject to equitable distribution; (2) determine the value of each asset; and (3) decide how to allocate each asset most equitably. Rothman v. Rothman, 65 N.J. 219, 232 (1974). "In every case, . . . the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution . . . ." N.J.S.A. 2A:34-23.1. A court should apply all the factors set forth in N.J.S.A. 2A:34-23.1, and distribute marital assets consistent with the parties' unique needs. DeVane v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995).
"Equitable" does not necessarily mean "equal." Rothman, supra, 65 N.J. at 232 n.6. An appellate court will affirm an equitable distribution provided "the trial court could reasonably have reached its result from the evidence presented, and the award is not distorted by legal or factual mistake." La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).
(i) Hoboken Radiology
Defendant first asserts error in the court's valuation and distribution of his interest in Hoboken Radiology. Specifically, he contends that the court erred in not considering plaintiff's failure to secure an appraisal of his interest in Hoboken Radiology, and by not valuing that interest as of the time of trial. Alternatively, defendant argues that the court erred in not dividing his interest in Hoboken Radiology in kind.
In his initial written opinion, the judge determined that "[t]he value of the Hoboken Radiology shares was established based upon the value of Ruth Madoff's investment interest. She paid $850,000 for [a] 21.5% [share]." The judge calculated defendant's relatively comparable 20% share at $800,000. On reconsideration, the judge rejected defendant's request to recalculate the value of his interest in Hoboken Radiology based upon a settlement with the Department of Justice rather than the actual amount paid by Ruth Madoff. The court found "[t]his has been and remains a valuable asset" and that "[t]he Madoff purchase price was an excellent barometer of the fair market value of said business entity."
Plaintiff notes that defendant refused to produce the financial records of Hoboken Radiology that would have enabled an evaluation of the business to be conducted. Importantly, also, defendant did not adduce any competent proof to dispute the value of his interest in Hoboken Radiology. Additionally, contrary to defendant's contention, the judge specifically found that "[t]his is a passive asset and therefore it is valued as of the date of trial, not the date of the filing of the divorce complaint[,]" citing Scavone v. Scavone, 243 N.J. Super. 134, 137 (App. Div. 1990) and Platt v. Platt, 384 N.J. Super. 418 (App. Div. 2006). Accordingly, on this record, we discern no abuse of discretion in the court's valuation of defendant's interest in Hoboken Radiology.
We similarly find no abuse of discretion in the court's determination not to distribute defendant's interest in Hoboken Radiology among the parties in kind. To do so would essentially continue plaintiff in a business partnership with defendant and his brother, notwithstanding the severance of the parties' spousal relationship. As defendant acknowledges in his brief, we have recognized that "it is unreasonable to place former spouses into a partnership status with each other." Borodinsky v. Borodinsky, 162 N.J. Super. 437, 446 (App. Div. 1978).
(ii) Hoboken MRI
We reach a different result, however, with respect to the distribution of the business accounts of Hoboken MRI and its related entities. Preliminarily, we note that, at trial, the parties and their experts essentially agreed that Hoboken MRI, Magnetic, and Tesla were defunct, thus leaving their tangible assets and defendant's good will to be valued and distributed. Both parties treated the three companies as a single entity, rather than separately valuing and distributing each company's assets.
In its equitable distribution analysis, the court reasoned:
The bank account balance, according to [p]laintiff, was $1,013,116 and she seeks 50% or $506,558. Defendant asserts that only $570,282 should be subject to equitable distribution and believes [p]laintiff should receive 25% of same or $142,570. The testimony of [] [d]efendant was that he saved cash in 2010, 2011[,] and 2012 for build outs of the new equipment which was required. Since the summer of 2013 he had taken money for himself and [] [p]laintiff so she could run the household. He stated that he took about $50,000 over that [eighteen-]month period and paid $180,000 to [p]laintiff over that same time period. He also paid $50,000, $30,600 and another $50,000 to his brother Sheldon in November [] 2012 and January [] 2013 shortly after the storm. He also paid $150,000 to Winne [and] Rich Chipchase. Rich
Chipchase is [] [p]laintiff's brother. The court is satisfied that the $150,000 paid by [d]efendant to Winne [and] Rich Chipchase should be deducted from the $1,013,116. The court is not satisfied that the payments by [d]efendant to Sheldon were arms' length transactions and therefore this $180,600 is disallowed. The $180,000 distributions to the parties [were] entirely appropriate and should further reduce the bank balance leaving $652,516 to be equitably divided. The court is satisfied that from this sum [] [p]laintiff should be awarded $261,006.40 (40%) and [] [d]efendant should retain the remaining balance.
Having reviewed the record, we find the following shortcomings in the court's analysis:
(1) The distributions to the parties totaled $230,000, not $180,000. It is unclear whether the court intended to include the $50,000 taken by defendant in the category of "appropriate" distributions to the parties. If so, then the balance available for distribution must be reduced by that amount.
(2) The payments to Sheldon Berger that the court disallowed totaled $130,600, yet the court erroneously calculated them as $180,600. This mathematical error should be corrected on remand so that $130,600 rather than $180,600 is added back to the total cash available for distribution.
(3) At trial, plaintiff contended that he maintained a 100% interest in Hoboken MRI but only a 79.5% interest in its sister companies and that his brother Sheldon held the remaining 20.5% interest in those companies. Although, as noted, the trial court disallowed certain payments made to Sheldon, it failed to make any findings as to whether the evidence established Sheldon's ownership interest in the companies. Accordingly, on remand, the court must state its findings regarding Sheldon's ownership interest. If such membership interest is established, the court must then reduce the amount available for distribution to the parties by the percentage amount attributed to Sheldon's interest.
(4) The court failed to make any findings regarding defendant's claim that Hoboken MRI had an ongoing lease obligation of approximately $2000 per month. On remand, the court should review the evidence and determine the viability of this claim. Should the court find the lease claim valid, it should further consider establishing a reserve account to fund this ongoing obligation.
Accordingly, for the reasons stated, we remand the issue of the equitable distribution of the Hoboken MRI account balance for additional fact-finding and, where appropriate, recalculation of the equitable distribution award.
D.
Defendant argues that the court erred in awarding plaintiff counsel and expert fees. He contends that the trial judge abused his discretion and that the award is unsupported by the record.
A judge in a matrimonial action may award a party reasonable attorney's fees and costs. In making that determination, a judge "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. See R. 5:3-5(c). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court[,]" Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007), and will be disturbed "only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan, supra, 402 N.J. Super. at 317 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Here, the trial judge weighed the appropriate factors and ordered defendant to pay plaintiff $60,000 toward her counsel fees of $94,404.53, and $10,000 toward her $23,941.70 expert fee. The judge also found defendant had the ability to pay his own fees and to contribute to plaintiff's fees. In contrast, the judge found that "[p]laintiff has limited ability to pay her own fees and that ability would be from her equitable distribution and alimony payments." The court also considered defendant's "bad faith position concerning his lack of pursuit of meaningful employment" and his lack of candor "as to his ability to retrain and resume his radiology business." Under these circumstances, we find no abuse of discretion in the court's award of counsel fees and costs.
To the extent that we have not specifically addressed any of defendant's remaining arguments on appeal, we conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and reversed and remanded in part. 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