Opinion
DOCKET NO. A-6016-12T2
02-04-2016
STEFANOS G. PANTAGIS, Plaintiff-Respondent/Cross-Appellant, v. ATHENA H. LANTZ-PANTAGIS, Defendant-Appellant/Cross-Respondent.
Robert T. Corcoran argued the cause for appellant/cross-respondent (Robert T. Corcoran, P.C., attorneys; Mr. Corcoran, of counsel and on the brief; Judith S. Miller, on the brief). Helene C. Herbert argued the cause for respondent/cross-appellant (Herbert & Weiss, attorneys; Ms. Herbert and Helayne M. Weiss, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1540-10. Robert T. Corcoran argued the cause for appellant/cross-respondent (Robert T. Corcoran, P.C., attorneys; Mr. Corcoran, of counsel and on the brief; Judith S. Miller, on the brief). Helene C. Herbert argued the cause for respondent/cross-appellant (Herbert & Weiss, attorneys; Ms. Herbert and Helayne M. Weiss, on the brief). PER CURIAM
Defendant Athena H. Lantz-Pantagis ("mother") and plaintiff Stefanos G. Pantagis ("father") appeal various provisions in the second amended dual judgment of divorce that pertain to parenting time, equitable distribution, child support, and counsel and experts' fees. After carefully reviewing the briefs and the record, we affirm in part and remand in part for further proceedings.
I
The parties were married on December 1, 1996 and divorced on June 26, 2013. They have two children, presently ages twelve and sixteen. In 1999 the parties purchased the marital home. From the time of purchase to September 2008, only the father resided in the house, while the mother and the children lived nearby. In September 2008 the father filed a complaint for divorce and, despite the fact he lived alone in the marital home, moved out. In April 2009, the parties reconciled but their attempts to save the marriage failed and, on January 13, 2010, the father filed a new complaint for divorce.
Even though the parties never cohabitated in the house, for simplicity we will refer to this property as the "marital home."
It is our understanding that even during the period of reconciliation, the parties did not live together.
A
One month after he filed his first complaint for divorce in September 2008, the father entered into a consent order directing that his parenting time be supervised. This order remained in effect for approximately five years when the court concluded after the trial there was no need for the father's parenting time to be supervised. During the litigation and at trial the father sought unsupervised parenting time and joint legal custody. The mother sought sole legal custody but, after the lengthy trial in this matter, agreed to share joint legal custody.
Various experts on parenting and custody testified during the trial. There was substantial evidence the father's parenting time did not require supervision, a fact the mother's expert conceded on cross-examination. The expert also admitted the children had at times exaggerated and distorted what took place during the father's parenting time.
In its June 26, 2013 written decision, the court ordered joint legal custody, as well as the cessation of supervised parenting time, effective August 1, 2013. The court also ordered the parties to engage in family therapy and gave the father the discretion to have a third party present during parenting time. On August 9, 2013, the mother filed a notice of appeal; the briefs inform us the father's parenting time continues to be supervised, pending appeal.
The mother's primary contentions on appeal are that the court erred by abruptly halting supervision of the father's parenting time and without input by the family therapist, and failed to order that a third party "be present during and after supervision would end, leaving this instead to [the father's] discretion." She also argues the court was required to address each of the custody factors in N.J.S.A. 9:2-4 before ordering the cessation of supervised parenting time.
B
In 1999, the parties purchased the marital home as tenants by the entirety for $510,000. The mother contributed $199,000 toward the purchase price with monies derived from her pre-marital assets and gifts conveyed solely to her. At trial, the mother argued she was entitled to a credit of $199,000 when the house sells. The trial court disagreed, finding these monies lost immunity from equitable distribution when the mother invested them in property jointly owned by the parties.
The mother's principal contention on appeal is that the parties' marriage was not a "shared enterprise" after the house was purchased because the parties never cohabitated in the marital home. She maintains general equitable principles require the $199,000 be returned to her.
C
After the father moved out of the marital home in 2008, the mother paid the mortgage and real estate taxes. At trial she argued the father was obligated to contribute toward the payments she had made toward these costs.
In its written decision the court found the mother was entitled "to an appropriate credit as to the mortgage principal reduction since September, 2008." However, instead of using September 2008 as the date from when the mother was to receive a credit, the court then referenced January 2010, the month in which the complaint was filed, as the time when she would receive a credit. Finding the principal balance to be $212,083 in January 2010 and $148,037 by the time of trial, a difference of $64,046, the court ordered the mother to receive one-half of the reduction in principal during that time period, or "$34,173.50."
It is not disputed that one-half of $64,046 is in fact $32,023, not $34,173.50.
In what the mother referred to as the amended dual judgment of divorce but is in fact the second amended dual judgment of divorce, the court found "[d]efendant is not entitled to receive a credit for any mortgage payments made since September 2008 . . . . Defendant is entitled to a credit for her one-half credit of the principal mortgage reduction since January 2010 in the amount of $34,173.50."
The dual judgment of divorce was filed on June 26, 2013 and the amended dual judgment of divorce filed on October 22, 2013. Although in the caption the dual judgment of divorce filed on March 14, 2013 is identified as the "amended dual judgment of divorce," it is in fact the second amended dual judgment of divorce.
On appeal, the mother contends the court intended to and should have given her a credit for the full amount by which the entire principal was reduced from September 2008.
D
In the second amended dual judgment of divorce, the court ordered the parties to evenly split all assets acquired during the marriage, "including the T. Rowe Price joint mutual account with deposits totaling $302,113.93." The mother had submitted evidence indicating T. Rowe Price maintained three accounts, two of which she had acquired before the marriage and never co-mingled with any account she shared with the father.
The father contended all the T. Rowe Price accounts were in joint names during the marriage, to which both had contributed money. He further claimed the mother withdrew $256,439.74 from these accounts before trial and deposited the proceeds into an account in her own name.
The trial count did not make any findings about the discrepancy in the evidence the parties' proffered about this asset. On appeal the mother argues the evidence supported a finding the money in two of the accounts belonged solely to her before the marriage and never lost its immunity from equitable distribution.
E
On the issue of child support, the court noted in its written decision that it had reviewed "the attached child support worksheet" and found the father should be paying $412 and not $606 per week in child support. The second amended dual judgment of divorce provides the father's obligation to pay child support in the amount of $412 per week is retroactive to "the entry of the June 10, 2011 pendente lite child support award of $606 per week," and that the father is to receive a credit for his overpayment "to the present time."
A copy of this child support guidelines worksheet was not in the record.
We surmise from the trial court's opinion and the briefs that when the mother sought pendente lite child support, the court calculated child support in accordance with the Child Support Guidelines, see Rule 5:6A, and the guidelines worksheet used to calculate child support indicated the father was to pay $412 and not $606 per week. However, instead of the order directing him to pay $412 per week, the order stated the father had to pay $606 per week. In its final decision following trial, the court corrected its error, retroactive to June 10, 2011.
The mother's primary argument on appeal is that the father's child support obligation cannot be reduced retroactively because he did not pay child support from 2008 to 2011 and, further, N.J.S.A. 2A:34-23(a) "requires a court to consider all ten factors listed in the statute when determining . . . a retroactive modification of a pendente lite award."
It was not clear whether the father had been ordered to pay child support during this time period. --------
The mother also contends that, when before the trial court, she argued the children were entitled to child support above the guidelines-based award because the parties, both of whom are physicians, earn or have the capacity to earn an income that entitle the children to a supplemental award of child support under N.J.S.A. 2A:34-23(a). She points out the court failed to address this issue.
F
The mother maintains the court erred by ordering her to pay a portion of the father's counsel fees, as well as contribute toward his expert's fee, the court-appointed best interest evaluator's fee, and the father's parenting-time supervisor's fee.
The record reveals the court, which managed this case for approximately three years before the trial, addressed the factors in Rule 5:3-5(c) in connection with the father's request for attorney's fees and ordered the mother to pay $67,000 of those fees. The court also directed the mother to pay a $2700 counsel fee it had previously awarded to the father, as well as contribute toward the supervisor's and various experts' fees the mother had been ordered to pay during the pendente lite period.
In its final decision the trial court observed that, during the litigation, the mother sought sole legal custody and supervised parenting time for the father, despite the evidence that failed to support her position. The court also noted the father submitted to psychological testing by the mother's expert while she refused to cooperate with her own expert and similarly submit to the same testing. The mother also changed counsel on several occasions, requiring adjournments.
On appeal the mother contends the court's implicit finding she had engaged in bad faith is not supported by the evidence.
G
In his cross-appeal, the father challenges the trial court's decision on allocating certain tax deductions; the equitable distribution of the parties' automobiles; and the time when certain marital assets are to be distributed. He also argues the parties should be required to use funds that have been set aside for the children's college education before each is compelled to contribute to such costs. The mother advises she does not object to such request.
II
While we owe no deference to the judge's legal conclusions, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), the scope of our review of the Family Part's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We owe substantial deference to the Family Part's findings of fact because of that court's special expertise in family matters. Id. at 413. "'A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
Appellate review of parenting time decisions is accorded great weight on appeal, see Terry v. Terry, 270 N.J. Super. 105, 118 (App. Div. 1994); we defer to the trial court's discretionary authority unless the controlling legal principles were not considered. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Similarly, the scope of appellate review of a trial court's equitable distribution of marital property is strictly limited. Genovese v. Genovese, 392 N.J. Super. 215, 222 (App. Div. 2007). The reviewing court only considers whether the trial court's decision was supported by sufficient credible evidence in the record and whether the decision represents a proper exercise of the court's broad discretion to divide the parties' property. Sauro v. Sauro, 425 N.J. Super. 555, 573 (App. Div. 2012), certif. denied, 213 N.J. 389 (2013); Genovese, supra, 392 N.J. Super. at 223.
Child support awards are left to the sound discretion of the trial court; review is limited to determining whether there was an abuse of discretion. Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Finally, the assessment of counsel fees lies within the sound discretion of the trial court. "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Guided by these deferential principles and our review of the record, but for the limited monetary issues we specifically address infra, we discern no error in the determinations made by the trial court to warrant appellate intervention and conclude the parties' arguments are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(1)(E).
However, the trial court did not address, let alone reconcile, the disputed evidence regarding whether two of the T. Rowe Price accounts were the mother's pre-marital assets, and failed to determine whether the children are entitled to not only a guidelines-based but also to a supplemental award of child support under N.J.S.A. 2A:34-23(a). Having overlooked these issues, we are compelled to remand this matter to the trial court for it to review and decide these discrete questions. The trial court shall have the discretion whether to obtain updated proofs.
Finally, on remand, the second amended dual judgment of divorce shall be corrected to state that the credit to which the mother is entitled for reducing the principal on the mortgage is $32,023. In addition, the second amended dual judgment of divorce shall be amended to include a provision providing the parties shall exhaust the children's college funds before either shall be compelled to contribute toward the cost of the children's college education.
Finally, the entitlement, if any, to appellate counsel fees shall be considered in the first instance by the trial court on remand.
Affirmed in part 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