Opinion
DOCKET NO. A-3190-12T2
04-02-2015
DOROTHY HARVEY, Plaintiff-Respondent/Cross-Appellant, v. ROBERT HARVEY, SR., Defendant-Appellant/Cross-Respondent.
Mensching & Lucarini, P.C., attorneys for appellant/cross-respondent (John J. Mensching, on the briefs). Trace & Jenkins, L.L.C., attorneys for respondent/cross-appellant (AllynMarie Smedley and Mary Cay Trace, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Nugent, and Accurso. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FM-17-74-11. Mensching & Lucarini, P.C., attorneys for appellant/cross-respondent (John J. Mensching, on the briefs). Trace & Jenkins, L.L.C., attorneys for respondent/cross-appellant (AllynMarie Smedley and Mary Cay Trace, on the briefs). The opinion of the court was delivered by NUGENT, J.A.D.
During more than thirty-four years of marriage, plaintiff Dorothy Harvey and defendant Robert Harvey, Sr., devoted their lives to raising three children and building a beekeeping hobby into an interstate business. Unfortunately, when the parties separated, they could not agree about who should own and operate the bee business or how to equitably divide their marital assets, so a judge decided those issues, among others, at their divorce trial.
When judges are called upon to divide marital assets, "frequently there are neither assets nor wisdom sufficient to satisfy the expectations of each party." Perkins v. Perkins, 159 N.J. Super. 243, 248 (App. Div. 1978). Such appears to be the case here. Both parties appeal from the Final Judgment of Divorce (FJOD).
In his appeal, defendant contends the court committed numerous errors when it distributed marital assets in a disproportionate manner that favored plaintiff; and further erred by not awarding him alimony, an oppressed shareholder's remedy, reimbursement for fees he paid to plaintiff's expert, and counsel fees. In her cross-appeal, plaintiff contends the court committed errors by failing to give her a greater share of the parties' marital assets, by requiring her to give defendant certain financial information about the family business, and by not awarding her counsel fees. Having considered the parties' arguments in light of the record and controlling law, we conclude that the trial judge's decision "simply represents the best a fair-minded, conscientious judge can make of the law and the intangible equities on each side." Ibid. Accordingly, we affirm the judgment.
I.
The parties married in November 1976 and have three children, all emancipated. Plaintiff filed the divorce complaint on September 1, 2010. The following month defendant filed an answer and counterclaim. During discovery, which was not always harmonious, the court entered a series of orders, including, orders requiring plaintiff to pay defendant advances toward equitable distribution and give him certain business assets; and a consent order requiring plaintiff to pay to defendant's attorney, in trust, a sum representing what both parties "acknowledge as being the defendant's 50% share of the money previously loaned by the plaintiff to the parties' son . . . for the purchase of certain real property . . . ." The court tried the divorce action sporadically over six days throughout June, August, and November 2012. Three witnesses testified: the parties and a business valuation expert, Michael A. Saccomanno.
The parties' testimony about the first thirty years of their relationship and marriage was, for the most part, undisputed. Plaintiff was an eighteen-year-old high school student when she met defendant, age twenty-four, a builder who remodeled houses and built churches. They married in November 1976. During the early years of their marriage, plaintiff worked part-time cleaning houses and helped defendant in his construction business. Defendant's hobby was beekeeping, which he had begun when he was nine years old. The bees produced honey, which plaintiff and defendant would bottle and market. They labeled the product "Harvey's Honey."
In 1979, defendant was forced to close the construction company. As a result, his beekeeping hobby became his full-time business. He taught the business to plaintiff and ultimately to the children.
Through much hard work and perseverance, and with the assistance of loans from the Farmer's Home Administration, the parties expanded their bee business. Plaintiff continued to devote substantial time to the business, but in 1988 she went to work as a bus driver for the Upper Pittsgrove School District to provide health insurance for the family. In between her morning and afternoon bus routes, she would work on the farm, extracting honey, bottling honey, and delivering it. By 1990, the year the parties purchased their Monroeville farm, they had 3000 hives. They were not only selling honey from the bees, but they also used the bees to pollinate crops. As they expanded their business, they added to the equipment and structures needed to keep up with the business, and they also improved their marital residence. Defendant, with the assistance of his brother and son, did most of the construction.
The parties also expanded their business operations to Florida. Plaintiff explained that if their bees remained in New Jersey during the winter months "they kind of go backwards. But, if you take them to Florida, it keeps them strong so that when you bring them back for the spring, you've got strong hives that are ready to go to work." For that reason, the parties operated their bee business in New Jersey during the spring and summer, and in September defendant trucked the hives to Florida, where they remained for the winter months. Plaintiff travelled with defendant to Florida until their oldest son started kindergarten. After their son started school, she could no longer make the trip.
In 1997, the parties purchased a property in West Palm Beach, Florida, which they used as a permanent place to winter their bees. In 2002, the parties began to raise queen bees at the West Palm property. In 2004, they incorporated the business in New Jersey and named it Harvey's Honey, Inc. (HH). Plaintiff and defendant each held fifty percent of the stock.
According to plaintiff, in 2006 defendant began to lose interest in both the bee business and their marriage. She claimed, and he denied, that he gave her an ultimatum: "either we sell the business, or we get a divorce." In any event, initially they did neither; rather, they turned the bee business over to their older son to run. The following year, in October 2007, defendant purchased a property in his name in St. Lucie County, Florida, where he intended to raise better quality queen bees that would produce more brood. Defendant financed the acquisition with a loan secured by a mortgage on the West Palm Beach house. In 2008, defendant turned over the business of raising queen bees at St. Lucie to the parties' youngest son.
In 2009, even though plaintiff could have secured health benefits for life by working four more years, she quit her job driving a bus so that she could go to Florida more often and work on her marriage. Defendant was living in Florida at the time. Plaintiff went to the West Palm property and told defendant she quit her job. He became angry. Plaintiff learned that he was having an extramarital affair in Florida. When she refused to mortgage their Monroeville home so that he could start a business buying foreclosed houses, he told her that he owned a condo and that he was leaving to stay there. Plaintiff did not see him much after that.
Despite the separation, defendant continued to work at the Florida properties and raise queens at St. Lucie. Plaintiff was selling starter hives, or nuc boxes, to hobby bee keepers in New Jersey. Defendant sent up the nuc boxes from Florida and also shipped plaintiff queen bees. Near the end of 2009, defendant and his youngest son had a falling out and his son returned to New Jersey. Defendant then began to charge HH for the nucs and the queen bees, even though HH continued to pay the expenses on the St. Lucie property. Defendant was "offsetting the expenses [HH was] paying against the charges . . . he was charging [HH] for the queens and the [starter hives.]"
A nuc box is a nucleus hive or starter colony taken from a larger colony. Nucs are "in a small box, and it's got five frames. And, it's got bees on the frames, and brood [baby bees], and honey, and a laying queen."
As the money he owed HH for maintaining the St. Lucie property increased, and the amount he offset for sending queen bees to New Jersey decreased, defendant stopped keeping an accounting or running tab. Midway through 2011, plaintiff stopped buying queen bees and starter hives from defendant.
Defendant never provided an accounting for the money he earned from the St. Lucie operation. Once defendant took over the operation of raising queen bees in St. Lucie, he never assisted running the HH operation at the West Palm property. The parties' oldest son ran the operations there. As of the divorce trial, plaintiff was running the New Jersey and West Palm operations with her oldest son, his wife, and their children.
Defendant had continued to take money from HH. Plaintiff testified that in August 2009, defendant came to New Jersey from Florida and took out a $50,000 loan from the HH business line of credit and she eventually paid it off. In October 2009, plaintiff went to Florida to attend to the West Palm operation. While there, she spoke to defendant, who said that he took a check from the business for $50,000. Defendant cashed the check and plaintiff saw none of the proceeds.
A third time, in December 2009, when defendant had come to New Jersey for Christmas, defendant asked for and plaintiff gave him a check for $50,000. She understood that defendant was trying to start up a business in Florida "flipping houses." She was willing to give him the money in an attempt to save her marriage. For that reason, plaintiff transferred the money from HH to her personal account and gave defendant a $50,000 check. Defendant never repaid plaintiff or HH any of the $150,000 he obtained, directly or indirectly, from HH.
Throughout 2010, defendant did not assist in the West Palm or New Jersey operations but HH continued to pay the expenses for his St. Lucie property. Those expenses included bills for cable, telephone, electric, shipping queen bees, syrup, and anything else defendant needed. Additionally, throughout 2010, HH gave defendant a paycheck. The company paid him a total of $23,620. The company also gave him paychecks throughout 2011 totaling $14,000. In addition to the money defendant received from HH in 2011, plaintiff paid him $15,000 as an advance against equitable distribution, as ordered by the court, and a second advance against equitable distribution of $5,000, again court-ordered.
Plaintiff testified that in 2010 she used approximately $100,000 to buy a home in Pitman, in her name, for her youngest son, but she had since transferred it into his name. She acknowledged, implicitly, that defendant was entitled to fifty percent of the money she used to buy the property.
Plaintiff told the trial judge that, when divorced, she and her children intended to continue to operate the business in New Jersey and West Palm. She also said that HH continued to pay the mortgage on the West Palm property that was taken out to purchase the St. Lucie property. Defendant never made any of the mortgage payments on the West Palm property.
According to defendant, he last lived at the Monroeville property in 2007. Defendant acknowledged that in 2009 or 2010 he became involved with a woman who had been his counselor. She founded Beetox, LLC in Florida, of which defendant was not a member. The company harvested the royal jelly from defendant's queen bees and marketed it for its healing effects. Defendant admitted to paying Beetox's expenses and helping it harvest royal jelly. Beetox obtained the royal jelly from the St. Lucie operation's queens but never paid HH for it. In 2011, after plaintiff filed her Complaint for divorce, defendant acquired a federal tax Employer Identification Number (EIN) for the St. Lucie operation.
Despite not contributing to HH, defendant still received paychecks from 2009 to 2011. He also admitted to accepting $150,000, as plaintiff had testified. Defendant said he told plaintiff that he wanted the money to "flip houses." Defendant acknowledged using the money as well as corporate credit cards to fund his "house flipping" business in Florida. He never repaid any of the money.
In addition to the St. Lucie operation, defendant has other real estate and personal assets. He has three trucks: a 2008 Ford F150, a 2008 F550, and a 2003 Ford F550. None is registered or insured. Defendant explained how they were financed and titled.
Defendant also testified that he owned a gyrocopter and trailer, which were gifts from a man from whom defendant purchased a bee business. Defendant acquired them in 2009 or 2010 from a friend "we bought a bee business from earlier - - he had three gyrocopters . . . in their scrap yard and asked if I wanted them." The trailer was a gift from another bee keeper defendant helped out in California. Although he once had a retirement plan, defendant had to "cash it out to pay legal expenses for the queen yard." Defendant cashed it out while the divorce action was pending.
Defendant used the $150,000 he obtained from HH to purchase houses, among other things. He purchased and rehabilitated a house on San Carlos Road in Fort Pierce and another, which he subsequently sold, on North Boulevard. He purchased another house on DeLand Road in Fort Pierce in April 2010. According to defendant, nothing other than the equity in the houses was left from the $150,000.
Defendant testified that he and plaintiff held title to a house in Pilesgrove they purchased for one of their sons who could not get a mortgage. According to defendant, the home was now a rental property. He had received no rents.
In December 2010, defendant was hospitalized for twelve days. He claimed it was due to stress caused by plaintiff shutting him out of a dealer's feed account, thereby preventing him from getting discounted rates on credit, resulting in an increase in his expenses for the queen bee business of twenty-five percent.
The parties provided the court with stipulations and considerable documentary evidence concerning the value and associated debt of their business assets, real estate holdings, personal assets, and three timeshares. The evidence included stipulations to the fair market value of the real property they each owned.
The only witness to testify to the value of HH was Michael A. Saccomanno, who the parties retained jointly in May 2011. Four months later, in September 2011, defendant's attorney informed Saccomanno that defendant would no longer utilize Saccomanno's services, so Saccomanno served thereafter as plaintiff's expert only. Nevertheless, defendant did not object at trial to Saccomanno's qualifications as an expert in the field of business valuations, and defendant did not produce an expert to counter Saccomanno's opinions.
Using the "capitalization of excess earnings method," Saccomanno valued HH, which included the New Jersey operations and West Palm Beach operations, at $1,339,000. He separately valued the Florida operations conducted at the St. Lucie property at $373,000. Saccomanno valued the operations separately because that is the way the parties treated them, that is how the parties valued the inventory, and neither party ever suggested anything to contrary. Nevertheless, had Saccomanno treated the operations as one operation, his "numbers" would not have been different from those he arrived at by valuing the operations separately.
In reaching his conclusions, Saccomanno relied upon the books and records HH prepared internally on a monthly basis as well as the tax returns prepared by an independent certified public accountant. In evaluating inventory, Saccomanno relied upon the values provided by the parties, including the values provided by defendant for the Florida inventory, which plaintiff did not dispute. Saccomanno also relied upon "Quick Books" accounts defendant provided concerning his operations in Florida, as well as checks defendant provided from July to December 2010 and January to November 2011.
Saccomanno's review of those records revealed that defendant had used HH revenue to pay expenses and costs for business ventures that had nothing to do with HH. That was consistent with defendant's statement during an interview with Saccomanno that he, defendant, had not worked full-time in the bee business since 2008. Saccomanno also testified that HH had little debt in the New Jersey operations; that through the years, HH had become more successful; and, the business really took a turn for the better starting in 2008 and 2009. According to Saccomanno, that is when the retained earnings of the business started to grow.
Following the trial, the court issued a thorough written opinion. At the outset, the court noted that it placed little credibility in defendant's testimony, finding that defendant had manipulated and misused HH in ways that were wholly favorable to him, and also finding that defendant had walked away from the New Jersey operation in 2008 yet thereafter continued to use HH funds to start his own bee farm in St. Lucie. On the other hand, the court found plaintiff credible, including her testimony that she complied with defendant's request for money for his "flipping houses" project in an effort to save their marriage. The court also noted that plaintiff continued to pay defendant's expenses from 2009 through 2011 even though defendant had "ostensibly stopped working for HH in 2008."
The court also found Saccomanno's testimony credible and accepted his "capitalization of excess cash flow" as the proper method of valuing HH. The court accepted Saccomanno's valuation of the New Jersey and West Palm operations at $1,339,000 and the St. Lucie operation at $373,000.
After balancing the factors set forth in N.J.S.A. 2A:34-23, the court denied defendant's application for alimony. The court also balanced the equitable distribution factors set forth in N.J.S.A. 2A:34-23.1 and determined that plaintiff would continue to operate HH, "including all assets, income, liabilities and expenses from its operations including the New Jersey and West Palm properties." The court awarded defendant an equitable distribution credit of forty-five percent of the value of those operations, the credit totaling $602,550, subject to certain adjustments and offsets.
Additionally, the court awarded defendant the business operations at St. Lucie and awarded plaintiff a fifty percent equitable distribution credit, which equaled $186,500. The court then ordered equitable distribution of the parties' other assets.
Defendant appealed from the FJOD implementing the court's decision. Plaintiff cross-appealed.
II.
Because it is important that the parties understand our limited role in reviewing Family Part judgements, we begin by explaining some of the well-established principles that guide us. We give considerable deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). When a Family Part judge has made findings of fact after considering the testimony and documents the parties have presented during a non-jury trial, the judge's findings are generally "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1979)).
That is so because of "the family courts' special jurisdiction and expertise in family matters. . . ." Id. at 413. Just as important, the trial judge is in the best position to make judgments as to whether witnesses are believable. Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). For those reasons, we will not reverse a trial judge's findings of fact unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 70 (quoting Rova Farms Resort, Inc., supra, 65 N.J. at 484).
Unlike a trial judge's fact and credibility findings, the judge's "'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995)). A trial judge "is in no better position than we are when interpreting a statute or divining the meaning of the law." D.W. V. R.W., 212 N.J. 232, 245 (2012). We review the legal issues anew. Id. at 245-46.
With those principles in mind, we turn to the parties' arguments concerning equitable distribution. Defendant contends the court committed errors by awarding a disproportionate share of marital assets to plaintiff and by disposing of the family business in an improper manner, without distributing retained earnings, after accepting the flawed testimony of plaintiff's expert concerning the value of the business. Plaintiff contends the court erred in equitably distributing the parties' marital assets by failing to give her a credit for family business revenue defendant used for a non-family business, by failing to give her credit for a property defendant sold, and by requiring her to pay taxes on business operations that defendant ran exclusively but did not consider to be part of the family business.
When equitably distributing marital property, a judge must "decide[] what specific property of each spouse is eligible for distribution, . . . then determine its value for purposes of such distribution, and [lastly,] decide the most equitable allocation between the parties after analysis of the statutory factors set forth in N.J.S.A. 2A:34-23.1." Genovese v. Genovese, 392 N.J. Super. 215, 225-26 (App. Div. 2007) (citing Rothman v. Rothman, 65 N.J. 219, 232 (1974)). The statutory factors include:
a. The duration of the marriage or civil union;
b. The age and physical and emotional health of the parties;
c. The income or property brought to the marriage or civil union by each party;
d. The standard of living established during the marriage or civil union;
e. Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
f. The economic circumstances of each party at the time the division of property becomes effective;
g. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;
h. The contribution by each party to the education, training or earning power of the other;
i. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount
or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;
j. The tax consequences of the proposed distribution to each party;
k. The present value of the property;
l. The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
m. The debts and liabilities of the parties;
n. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
o. The extent to which a party deferred achieving their career goals; and
p. Any other factors which the court may deem relevant.
[N. J.S.A. 2A:34-23.1.]
The court should apply the statutory factors and "distribute the marital assets consistent with the unique needs of the parties." DeVane v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995). Property need not be equally allocated if the "sole ownership or allocation of a major share to one of [the parties] is warranted by all the financial and personal considerations underlying the equitable distribution plan." Daeschler v. Daeschler, 214 N.J. Super. 545, 553 (App. Div. 1986).
We evaluate Family Part decisions concerning equitable distribution under an abuse of discretion standard. See Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978). When applying that standard, "[w]e must determine 'whether the trial court mistakenly exercised its broad authority to divide the parties' property or whether the result reached was bottomed on a misconception of law or findings of fact that are contrary to the evidence.'" Sauro v. Sauro, 425 N.J. Super. 555, 573 (App. Div. 2012) (quoting Genovese, supra, 392 N.J. Super. at 223), certif. denied, 213 N.J. 389 (2013). We will affirm an equitable distribution award if "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) (citing Perkins, supra, 159 N.J. Super. at 247-48)), certif. denied, 167 N.J. 630 (2001).
In the case before us, defendant argues that he "is entitled to, minimally, [fifty percent of marital assets], without diminution for debts or other liens. . . ." In support of his argument, defendant points out that he and plaintiff made substantial "contributions to the acquisition of income and property during the marriage." He also argues that the marriage is a long-term marriage, he is significantly older than plaintiff, and that he has had physical health issues, including a [twelve] day hospital stay . . . as a result of a compromised endocrine system. He claims that as a result of plaintiff's actions in cutting him off on a financial level, he is in dire economic circumstances.
We reject defendant's argument that the trial judge should have, minimally, distributed the marital assets, including the business, equally. The assumption "that in undertaking to effect an equitable distribution of marital assets, the trial court should . . . presumptively assign some portion, generally mentioned as [fifty percent], of all eligible assets to each spouse[,]" has been explicitly disapproved by our Supreme Court. Rothman, supra, 65 N.J. at 232 n.6. The court's task in distributing marital assets is to make such a distribution "consistent with the unique needs of the parties[,]" DeVane, supra, 280 N.J. Super. at 493, and the property need not be equally distributed if the statutory factors, including the financial and personal situation of each party, suggest otherwise. Daeschler, supra, 214 N.J. Super. at 553-54.
Here, the trial judge distributed forty-five percent of the value of HH to defendant, rather than fifty percent, based on his finding that defendant essentially abandoned HH in 2008 "to engage in his own business ventures, making Florida his primary residence. . . ." Although defendant claims that plaintiff cut him off from the business, there is ample evidence in the record to support the court's finding to the contrary. In fact, there is ample evidence to support the proposition that defendant voluntarily withdrew from the business and started two businesses on his own, rehabilitating houses and raising queen bees.
Moreover, the record amply supports the judge's factual determination that defendant continued to be paid by HH after discontinuing his active involvement in the business and in fact used HH funds to fund his other business ventures. Thus, defendant dissipated HH profits. In view of those considerations, there is no basis for concluding that the judge abused his discretion by allocating forty-five percent of the value of HH towards defendant's equitable distribution, rather than fifty percent.
Both parties argue that the trial judge erred in assessing credits against assets in determining equitable distribution. Defendant states, in conclusory fashion, that
[t]he [c]ourt improperly awarded plaintiff credits for: a. the gyrocopter, trailer and plane; b. timeshare maintenance fees, which were paid by defendant, not plaintiff; c. a
portion of the E. Seminole Road net cash proceeds, which no longer exist; d. the estimated 2010 tax payments, which were paid by [HH]; e. 2010 housing and business supply expenses.Similarly, defendant asserts:
The [c]ourt failed to award defendant credits for: a. disparity in motor vehicle values; b. timeshare maintenance fees; c. [a] $24,000 loan.
We pause to point out that parties are required to make an adequate legal argument. 700 Highway 33, LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011). Conclusory assertions that a judge committed error, devoid of reference to the judge's decision or the trial record, and further devoid of any attempt to apply applicable precedent to the factual underpinnings of such conclusory assertions, do not satisfy the requirement that parties present an adequate legal argument. Ibid.; see also State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977).
Having said that, we have nevertheless reviewed defendant's arguments and find them to be without sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(E). Defendant and plaintiff have selected specific assets they feel the judge allocated unfairly, without considering the distribution of those assets in the context of the overall equitable distribution scheme.
For example, defendant asserts that the court improperly awarded plaintiff credits for the gyrocopter, trailer and a plane, but fails to discuss how allocation of credits for those assets violates any specific factor enumerated in the equitable distribution statute or unfairly skews the overall distribution scheme. Thus, predictably, defendant overlooks the parts of the judge's decision favorable to him, such as not giving plaintiff an equitable distribution credit for $150,000 of HH revenue that defendant obtained and diverted to his business rehabilitating houses and to his queen bee business.
We note that defendant testified that the gyrocopter and trailer were gifts. However, there was ample evidence from defendant's transactions with the people who gave him the "gifts" and the circumstances under which defendant obtained them to support the conclusion that they were HH business assets. We also must consider in that regard the court's conclusion that defendant's testimony was not credible.
As a further example, the court's award of a credit to plaintiff of $38,500 for defendant's estimated 2010 taxes was supported entirely by Saccomanno's testimony. Nor do we find the judge abused his discretion by not awarding defendant a credit for the disparity in values of the motor vehicles. The evidence supported the judge's decision that the parties treated the vehicles separately.
In the last two sentences of the first point in defendant's brief, he argues,
the net equity values of the Pilesgrove, West Palm Beach and Deland Avenue properties were improperly calculated and fail to account for existing loan balances, the source of payments, and the reason for creation. Moreover, according a [fifty percent] credit to plaintiff for defendant's liquidated IRA, while imposing sole tax liability on defendant, is patently unfair.
Defendant overlooks that the parties stipulated to the value of those properties. He also fails to explain how the judge abused his discretion by valuing them in accordance with the stipulations, as of the date the complaint was filed. As a general principle, "a common evaluation date for all marital assets" should be employed, and "absent some extraordinary circumstances," the date the complaint was filed should be the time at which the value of assets is measured. Bednar v. Bednar, 193 N.J. Super. 330, 332 (App. Div. 1984) (citing Brandenburg v. Brandenburg, 83 N.J. 198, 209 (1980)). Our review of the record discloses no basis for concluding the trial court abused its discretion. For similar reasons, we find unpersuasive defendant's argument concerning the equitable distribution of his IRA.
Defendant also argues that the court erred by refusing to distribute corporate profits or retained earnings, erred in the manner it distributed the corporate business, and erred in accepting the value of the business testified to by plaintiff's accounting expert, especially because he valued the St. Lucie property as an operation separate from HH. We find those arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We add only these brief comments. HH's retained earnings were taken into consideration in the valuation of the business as well as in the judge's decision regarding equitable distribution. Defendant's argument that the trial judge should have dissolved HH was properly rejected by the trial court, particularly in view of defendant's failure to plead a cause of action for dissolution of HH in his counterclaim. As to the expert, defendant did not object to the expert's qualifications, the expert's opinion was unrefuted by opposing expert testimony, and the opinion was based on credible evidence. Lastly, defendant's argument that the St. Lucie property should not have been valued separately from the New Jersey and West Palm properties overlooks both the expert's testimony concerning how the parties perceived the business should be evaluated and his testimony that his numbers would not have changed even if he had not separately valued the St. Lucie property.
In her cross-appeal, plaintiff asserts the court erred by failing to give her a credit for the $150,000 taken from [HH] by defendant, and by failing to give her a credit for a Fort Pierce house defendant sold. We find no abuse of discretion in either of the court's actions. Plaintiff, as did defendant, fails to consider the judge's specific decisions concerning those assets in the context of the overall distribution scheme.
Plaintiff was aware in each instance that defendant obtained money from HH, and in fact, in one instance, plaintiff wrote him a check from her personal bank account after transferring money there from HH. And ample evidence in the record supports the judge's conclusion that the money was used, in substantial part, to fund defendant's business rehabilitating houses. As plaintiff concedes in her brief, she waived any claim to a credit for the proceeds of at least one property. Her argument also overlooks the court's award to her of fifty-five percent of HH. Considering all of those factors, we find no abuse of discretion.
III.
Defendant contends denying him alimony was an abuse of the trial judge's discretion. He argues that the factors in the alimony statute, N.J.S.A. 2A:34-23, weigh in favor of him receiving alimony and the judge erred by reaching a contrary conclusion. Asserting that the fifty-five percent of HH granted to plaintiff will generate significant income, but the forty-five percent awarded to him will not generate nearly as much, defendant insists these consequences compel alimony. In further support of the argument, he asserts that the St. Lucie operation has suffered significant losses since being severed from the New Jersey operation and has only survived because he has earned income by rehabilitating homes. He also claims that he has no other resources which will enable him to attain a standard of living akin to that during the marriage.
Plaintiff counters that defendant failed to raise a claim for alimony in his answer and counterclaim, and that the judge did not abuse his discretion because defendant possesses the ability to make the St. Lucie operation successful. Plaintiff also argues that any financial hardship defendant suffers has resulted from his decision not to work for HH and his mishandling of financial resources.
The award of alimony is "broadly discretionary." Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd as modified, 183 N.J. 290 (2005); see also N.J.S.A. 2A:34-23. "[T]he goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed . . . during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). "When support of an economically dependent spouse is at issue, the general considerations are the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Id. at 24 (quoting Lepis v. Lepis, 83 N.J. 139, 152 (1980)). The court must also consider, but is not limited by, the criteria set forth in N.J.S.A. 2A:34-23(b). Id. at 26.
Following the trial and filing of appeal, N.J.S.A. 2A:34-23 was amended, effective on September 10, 2014. The amended statute is applied prospectively only, and therefore has no bearing on this appeal.
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When we review a decision concerning alimony, we "give deference to a trial judge'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.) (citations omitted), certif. denied, 154 N.J. 608 (1998). We will reverse a trial judge's decision concerning alimony only if "the findings were mistaken or . . . the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering all of the proofs as a whole." Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009).
We review a Family Part judge's decision on alimony for abuse of his or her discretionary authority. Innes v. Innes, 117 N.J. 496, 504 (1990).
To vacate a trial court's finding concerning alimony, we must conclude that the trial court clearly . . . failed to consider all of the controlling legal principles, or we must otherwise be satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering all of the proofs as a whole.
[Gonzalez-Posse, supra, 410 N.J. Super. at 354.]
Measured against those standards, we conclude that the trial judge in the case before us did not abuse his discretion. Here, in denying defendant alimony, the trial judge balanced the factors set forth in N.J.S.A. 2A:34-23 and concluded that defendant had the ability to earn sufficient income to maintain his marital lifestyle. The court found that both parties were "able bodied, in good physical and mental condition, and wholly capable of operating profitable businesses." The judge pointed out that it was defendant who educated and taught plaintiff and their children how to run a successful bee operation, and that defendant, a certified Master Beekeeper, had "the requisite educational and vocational skills to fully achieve his earning capacity." The judge noted the size of defendant's St. Lucie operation, and its inventory of unsold honey. The judge also noted that defendant would receive considerable assets by way of equitable distribution.
Nor can it be overlooked that defendant voluntarily and willingly withdrew from HH after the children had become emancipated and at a time when the business was apparently as profitable as it had ever been. Under those circumstances, it is difficult to discern any basis whatsoever for concluding that the trial judge abused his broad discretion.
IV.
Defendant's contentions that the court erred by not crafting a remedy for him as an oppressed shareholder, and in not requiring plaintiff to reimburse him for fees paid to Saccomanno, are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). As plaintiff points out, defendant did not plead a cause of action as an oppressed shareholder and did not raise the argument until he submitted his written closing argument to the trial judge. Notwithstanding those omissions, there was no basis for such a claim. As a fifty percent shareholder and corporate officer, defendant owed fiduciary obligations to the corporation. Disregarding those fiduciary obligations, he effectively withdrew from running HH, continued to accept a salary from HH, ran the St. Lucie operation of HH as his own personal business, and diverted HH revenue to his housing rehabilitation business.
As to the expert fees, defendant does not deny that he agreed to retain and pay Saccomanno as a joint expert. Rather, he argues that had he not agreed to retain Saccomanno jointly, Saccomanno would have performed the same work. As with many of defendant's other arguments, his assertions are unsupported by references either to the record or legal authority. The fact remains that defendant agreed to pay the fees. The trial judge did not abuse his discretion by declining to relieve defendant from that obligation. See Goldman v. Goldman, 2 75 N.J. Super. 452, 464 (App. Div.), certif. denied, 139 N.J. 185 (1994) (finding the trial court had full discretion to allocate responsibility between the parties for an expert's fee).
V.
In addition to her points concerning credits for equitable distribution that we have previously addressed, plaintiff argues in her cross-appeal that the court erred by requiring her to provide defendant with corporate financial statements for 2011 and 2012; and by requiring HH to file joint tax returns for those years.
The court did not abuse its discretion by requiring plaintiff to provide defendant with HH's financial information for 2011 and 2012. Throughout those years defendant remained a fifty percent shareholder and corporate officer. Moreover, it is not entirely clear how the St. Lucie operation was accounted for on HH's financial statements for those years. Accordingly, we find no abuse of discretion in the court ordering disclosure to defendant of HH financial information for those years.
On the other hand, it is readily apparent from the record and pleadings that the court did not intend HH to file a joint tax return that included defendant's St. Lucie operation, for which he had obtained a separate tax identification number, for 2011 and 2012.
The parties finished presenting evidence at trial on November 14, 2012. On the same day, the trial judge entered an interim order requiring counsel to file written closing arguments within thirty days, and further requiring that "2010 and 2011 corporate tax returns, which shall include all information relating to both the New Jersey and Florida operations, . . . be prepared and filed as soon as possible, utilizing the corporate accountant. . . ."
Two months later, the trial judge filed the FJOD, which included this paragraph:
The terms and provisions set forth in this [c]ourt's [o]rder entered on November 14, 2012 are incorporated herein by reference. With respect to the corporate and/or joint personal tax filings referred to herein, each party shall keep the other timely apprised of the status of same and supply, within five (5) days of receipt, copies of all communications received from any third party relating to same which are not protected by the attorney-client privilege. All corporate tax liabilities, including interest and penalties, if any, for the tax years 2010 through 2012 inclusive shall be paid by [HH].
During the intervening two months, however, plaintiff had filed a motion for reconsideration of that part of the November 14, 2012 interim order concerning the filing of joint tax returns. Plaintiff's motion was supported by a certification from her accountant outlining the difficulties, risks and exposure to HH of filing a joint tax return, after 2010, with a Florida company bearing a separate tax identification number. The judge granted plaintiff's motion for reconsideration and, on the same day he filed the FJOD, filed an order clarifying his previous interim order of November 14, 2012.
The judge attempted to clarify his previous decision by the following paragraphs in the January 28, 2013 order disposing of plaintiff's motion for reconsideration:
[It is], on this 28th day of January, 2013, [ordered] as follows:
1. The [p]laintiff's motion is [granted];
2. Paragraph two of the [c]ourt's November 14, 2012 [o]rder is clarified to require:
a. 2010 corporate tax return filed for [HH] including both the Florida and New Jersey operations;
b. 2011 corporate tax return filed for [HH] including only the New Jersey operation; and
c. 2011 tax return filed for defendant's St. Lucie operation, separate from [HH] using defendant's own Employer Identification Number (EIN).
The January 28, 2013 order disposing of plaintiff's reconsideration motion made clear that 2010 would be the final year in which HH filed a corporate tax return that included the St. Lucie operations. Had the judge ruled otherwise — particularly in view of defendant having obtained a separate tax identification number for the St. Lucie operation and having failed to keep accurate financial records concerning the St. Lucie operations — he clearly would have abused his discretion.
Defendant makes no serious argument to the contrary. In a single sentence addressing both the requirement that plaintiff provide him with HH financial information for 2011 and 2012, as well as the corporate tax liabilities, defendant simply states: "the [c]ourt did not mistakenly exercise its discretion with respect to that issue or the issue of allocation of responsibility for the corporate tax liabilities."
Accordingly, we find no reason to reverse the FJOD. Rather, we deem the court's January 28, 2013 order granting plaintiff's reconsideration motion as an order superseding both the November 14, 2012 order and paragraph 20 of the FJOD. Consequently, HH is not responsible for the 2011 and 2012 tax liabilities, if any, of the St. Lucie operation.
VI.
Both parties sought counsel fees. Each party agrees that the court properly denied the other party's fee application. Each party claims the court erred by denying their own counsel fee application. After considering the factors set forth in Rule 5:3-5(c) concerning the award of counsel fees, the court concluded both parties were on "roughly equal financial footing and both had the benefit of experienced counsel. Both parties had arguments over multiple[] issues that protracted the proceedings and, as such, each party shall bear the cost of their respective attorney's fees." We discern no abuse of discretion whatsoever in the court's determination.
VII.
For all of the foregoing reasons, the judgment of divorce is affirmed in its entirety.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION