Opinion
DOCKET NO. A-2247-11T3
05-13-2013
DENISE TORYK, Plaintiff-Respondent, v. JOSEPH TORYK, Defendant-Appellant.
Robert J. MacNiven argued the cause for appellant (Shamy, Shipers & Lonski, P.C., attorneys; Mr. MacNiven, on the briefs). Robin Jill Schneider argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Waugh.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1994-10.
Robert J. MacNiven argued the cause for appellant (Shamy, Shipers & Lonski, P.C., attorneys; Mr. MacNiven, on the briefs).
Robin Jill Schneider argued the cause for respondent. PER CURIAM
Defendant Joseph Toryk appeals a November 29, 2011 judgment of divorce with regard to the trial court's award of limited duration alimony, child support, equitable distribution, and counsel fees. We affirm principally for the reasons stated by the trial judge in his thirty-five-page written opinion. We add the following comments, based on our review of the record and the parties' briefs and oral argument on appeal.
By way of introduction, some discussion of the circumstances developed during the trial is necessary. Defendant and plaintiff Denise Toryk married July 22, 2000. They have one child; custody and visitation are not in dispute.
When the parties married, they both worked at the business where plaintiff continues in a managerial position. As of the date plaintiff filed for divorce, June 30, 2010, she earned $109,000 per year. She has been paid yearly bonuses ranging from $12,000 to $32,000 in the last five years.
In 2003, defendant was given the option of taking anger management classes or voluntary leave from the company. He chose to terminate his employment. He initially took a similar job, but became a sheet metal apprentice in October 2004.
In May 2005, defendant was struck by a car while riding his bicycle. Two days later, he began to treat with a chiropractor, and eventually consulted with a neurosurgeon, Dr. Jeff Pan. He was diagnosed with disc herniations, and after physical therapy and other treatments, underwent surgery in 2007. Although defendant's subjective complaints continued, Pan saw improvement.
Defendant was involved in a second automobile accident in March 2009. At that juncture, because of defendant's complaints of persistent neck pain, headaches, numbness and tingling in his arms, Pan determined defendant was permanently disabled.
In seeming contrast with that conclusion, defendant participated in a duathalon and a five-kilometer race in August 2009. When he testified during the divorce trial, Pan was unaware of these activities, and stated that defendant's participation "would surprise me." Defendant underwent additional surgery on his right shoulder during 2011.
When defendant resigned from the first job he held during the marriage, he was earning approximately $50,000 per year. At the time he left his second position as a sheet metal apprentice in September 2007 because of his injuries, he was earning approximately $40,000 per year. In October 2009, some two years later, defendant became employed as a part-time sales associate at Lord & Taylor. He has not returned to full-time employment since, but is on call with Lord & Taylor. The trial judge noted in his opinion that defendant made no apparent efforts to obtain employment.
A Social Security Administration Administrative Law Judge (ALJ) found that defendant was disabled from September 18, 2007, to March 17, 2009, and awarded benefits for this period. The ALJ did not find defendant's testimony regarding his symptoms after March 18, 2009, to be credible, however, and deemed him capable of performing light work. Defendant collected unemployment benefits from March 2009 until November 2011. Because he too found defendant capable of work despite his physical condition, the trial judge imputed annual income to defendant of $45,000.
As a result of the first accident, defendant received a personal injury award of $33,000. The funds were initially deposited into the couple's joint checking account and then transferred, $25,000 into defendant's account, and $19,000 into plaintiff's account.
Defendant could not recall the exact division, and it does not appear the bank records reflecting the deposits were introduced into evidence. We note that the figures provided by defendant cannot be accurate mathematically.
In 1996, four years prior to the marriage, plaintiff purchased a townhouse in Bradley Beach for $92,000. Defendant also purchased a home prior to the marriage, in Gloucester City, for approximately $105,000. After the birth of the parties' child, defendant sold his home and deposited the net equity of approximately $35,000 into a joint account. At some point, defendant's name was added to the mortgage on plaintiff's home but not to the deed.
An appraiser hired by the parties as an expert witness for the divorce valued plaintiff's Bradley Beach home at $380,000 on April 16, 2011. Without plaintiff's knowledge, defendant hired that same joint appraiser to set a value on the increase in worth in plaintiff's home from 2000 to the divorce filing date. The appraiser estimated the figure at $160,000, and the value of post-marriage improvements at $44,000.
Included in the parties' bank and investment accounts was a 401K with AXA in defendant's name. At the time of divorce, it was worth approximately $37,000.
The parties' child attends a parochial school and is a skilled gymnast. Plaintiff alone pays tuition and extracurricular expenses, such as gym and coaching fees.
Plaintiff was required to pay limited duration alimony to defendant for four years: $250 per week for the first two years after the date of divorce, $200 per week for the third year, and $175 per week for the fourth year. Defendant in turn was ordered to pay child support calculated under the guidelines in the amount of $189 per week, based on annual income the trial judge imputed of $45,000. Plaintiff was ordered to continue the child's medical and dental insurance through her employer, and pay ordinary uninsured medical expenses to a maximum of $250, additional expenses to be shared on a pro rata basis.
The judge granted plaintiff sole ownership of the Bradley Beach home, subject to a payment to defendant of $42,500, representing half of the value of improvements and half of the mortgage pay-down during the marriage. Defendant's 401K was divided equally between husband and wife. Defendant was also ordered to pay $20,000 towards plaintiff's counsel fees, to be deducted from the $42,500 plaintiff owed to defendant as the buyout for the Bradley Beach condo. The trial judge's determination as to counsel fees was based, in part, on defendant's bad faith rejection of plaintiff's settlement offer and his attorney's failure to comply with discovery orders.
Defendant now appeals, raising the following points:
POINT IAs we have said, we rely principally upon the judge's cogent, thorough, and comprehensive decision as the basis for our affirmance.
THE TRIAL COURT DEPRIVED JOSEPH TORYK OF A FAIR TRIAL, AND THEREFORE COMMITTED REVERSIBLE ERROR WARRANTING A NEW TRIAL.
POINT II
THE TRIAL COURT'S DECISION TO IMPUTE INCOME TO JOSEPH TORYK LACKED SUBSTANTIAL, CREDIBLE EVIDENCE TO SUPPORT IT.
POINT III
THE TRIAL COURT'S DECISION TO ONLY AWARD JOSEPH REHABILITATIVE ALIMONY RATHER THAN PERMANENT ALIMONY--AS WELL AS THE AMOUNT OF ALIMONY--IS BASED ON A FLAWED ANALYSIS.
POINT IV
THE TRIAL COURT ABUSED ITS DISCRETION IN REQUIRING JOSEPH TORYK TO PAY HIS EX-WIFE'S COUNSEL FEES.
POINT IV[SIC]
THE TRIAL COURT ERRED BY TREATING JOSEPH'S AXA 401(K) AS A MAR[IT]AL ASSET.
POINT V
JOSEPH WAS ENTITLED TO AN EQUITABLE SHARE OF THE BRADLEY BEACH CONDO.
I
We first address defendant's contention that he was deprived of a fair trial. Defendant's basis for his claim is that the trial judge refused to allow his attorney to state various positions for the record and denied his attorney's request to discuss an issue in chambers. Defendant initially made a motion for a new trial before the trial court based on this argument. He withdrew the application, however, before it was heard. Generally, an issue is preserved for appeal only after it is considered by the trial judge. Investors Sav. Bank v. Keybank Nat'l Ass'n, 424 N.J. Super. 439, 447 (App. Div. 2012); Kothari v. Kothari, 255 N.J. Super. 500, 512 (App. Div. 1992). Because the issue of the alleged lack of due process accorded to defendant was not presented to the court for decision, it was not preserved for appellate review, hence we will not address it. It does not raise a question regarding jurisdiction of the trial court nor concern a matter of great public interest. See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1977) ).
II
By way of context, we reiterate that the scope of appellate review of a trial court's findings of fact is limited, and these findings "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," including cases involving child support, alimony, and divorce. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Furthermore, a family court's decision regarding imputation of income for the purpose of alimony or child support will only be reviewed for abuse of discretion. Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002).
Defendant claims that the trial court wrongly imputed income to him of $45,000 per year in deciding the amount to be paid by way of limited duration alimony and child support. Imputation of income for the purpose of calculating alimony or child support payments is permissible where a party is voluntarily unemployed or underemployed. See Tash, supra, 353 N.J. Super. at 99; Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991). The child support guidelines actually require courts to impute income if a parent is voluntarily underemployed or unemployed. Considerations in Use of Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2150-51 (2013).
The trial judge found defendant capable of work, partially in reliance upon the Social Security Administration ALJ's conclusion that defendant was not disabled for Social Security purposes as of March 18, 2009, and the testimony presented at trial. New Jersey considers findings of the Social Security Administration in subsequent family proceedings to have limited res judicata effect. Golian v. Golian, 344 N.J. Super. 337, 342 (App. Div. 2001). Those findings constitute prima facie evidence and shift the burden of proof to the party disputing the findings to refute their validity. Ibid.
Defendant contends he met his burden through Pan's testimony. Pan's conclusions, however, were not accepted by the trial judge. The trial judge instead found defendant's participation in two races while continuing in treatment, and Pan's lack of knowledge of those activities, to be significant.
Thus the trial judge did not give Pan's opinions regarding defendant's ability to work great weight because they were "based primarily on [defendant's] self-reporting." Pan readily acknowledged that he opined defendant could not return to work "because [defendant] has told him that." The trial court therefore concluded that defendant could work based on his own review of defendant's medical records independently from the ALJ's determination, in addition to the fact that defendant competed in two races during the time he claimed he was disabled, and that he "was not entirely candid with Dr. Pan."
Defendant last worked full-time as a retail salesman, and he did not provide any reasonable explanation for leaving that job. Therefore the court set his imputed income within the New Jersey Department of Labor and Workforce Development Occupational Wage Estimate range for such employment from $37,000 to $53,000, at $45,000. We see no abuse of discretion either in the judge's reliance on the Social Security Administration's determination as constituting prima facie proof, or on his own assessment of the merits of defendant's claim that he was disabled.
III
In awarding alimony, the trial court exhaustively analyzed the statutory factors enumerated in N.J.S.A. 2A:34-23(b). "Limited duration alimony is available to a dependent spouse who made 'contributions to a relatively short-term marriage that . . . demonstrated the attributes of a marital partnership' and has the skills and education necessary to return to the workforce." Gordon v. Rozenwald, 380 N.J. Super. 55, 65-66 (App. Div. 2005) (quoting Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000)). The length of the marriage is particularly relevant in determining whether to award limited duration rather than permanent alimony, and "[a]ll other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded." Cox, supra, 335 N.J. at 483.
No firm lines between a short-term and long-term marriage have been drawn in our jurisprudence. In a case involving rehabilitative alimony, we have said a ten-year marriage is not "short-term . . . . By today's standards, it is not." Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998). On the other hand, we recently described a nine-year marriage as one of intermediate length and upheld a limited duration alimony award. J.E.V. v. K.V., 426 N.J. Super. 475, 489-91 (App. Div. 2012).
We therefore do not agree with defendant's contention that the trial judge erred as a matter of law by characterizing his approximately ten-year marriage one of short duration, and limiting the years during which alimony would be paid. Although defendant may not be earning as much as plaintiff by the end of the four-year term, that fact in and of itself is not dispositive either of the term of alimony or the amount. In J.E.V., for example, the dependent spouse earned far less than her husband and it could be assumed would continue to do so even when the alimony payments ceased. Id. at 490-91. In any event, a key aspect of the trial judge's decision was his conclusion that defendant was capable of returning to work. This conclusion is entitled to our deference.
Insofar as defendant's challenge to the amount of alimony, the trial judge explained that defendant's expenses were inflated. Plaintiff's expenses, on the other hand, supported a modest lifestyle and included the daughter's tuition and gymnastics training. The trial judge properly considered all the required factors and made appropriate findings justifying the amount of the award. His findings are entitled to deference. See Cesare, supra, 154 N.J. at 413.
IV
Defendant now contends that the bulk of his AXA account was accumulated prior to the marriage, and that the trial judge erred by treating it as a marital asset. Unfortunately, no corresponding citations to the record support the claim. It is defendant's "responsibility to refer . . . to certain parts of the record to support [his] argument." Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 474 (App. Div. 2008) (citing State v. Hild, 149 N.J. Super. 294, 296 (App. Div. 1977)), certif. denied, 197 N.J. 476 (2009). He did not do so. We could not locate any relevant testimony with regard to this account. On his CIS, defendant listed the account without claiming that any portion of it was exempt. Therefore the record does not support defendant's contention, and we do not address it further.
V
Defendant also challenges the trial court's refusal to grant him an equitable share in plaintiff's Bradley Beach condo. He acknowledges that the property was not purchased in contemplation of marriage, but asserts that he is nonetheless entitled to an equitable share on theories of constructive trust, quantum meruit, and transmutation.
Under N.J.S.A. 2A:34-23(h), a court may make awards "to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by [spouses] . . . during the marriage . . . ." If a property was purchased in anticipation of marriage for use as a marital home, it may be considered marital property and subject to equitable distribution. Winer v. Winer, 241 N.J. Super. 524, 527 (App. Div. 1990). Similarly, where a spouse is added to the deed of a property acquired prior to marriage, it will be considered a gift and subject to equitable distribution. Pascarella v. Pascarella, 165 N.J. Super. 558, 564 (App. Div. 1979).
Even if property is not subject to statutory equitable division, a trial court may apply equitable remedies in distributing assets incidental to a divorce. For example, a constructive trust is available to prevent unjust enrichment. Carr v. Carr, 120 N.J. 336, 351 (1990); D'Ippolito v. Castoro, 51 N.J. 584, 588 (1968). Quantum meruit and quasi-contractual theories also allow for recovery where one party has conferred a benefit upon another and not to distribute would result in unjust enrichment. See Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992); Carr, supra, 120 N.J. at 352. A third equitable remedy is the theory of transmutation, which we have not explicitly endorsed. See Coney v. Coney, 207 N.J. Super. 63, 75-76 (Ch. Div. 1985); Carr, supra, 120 N.J. at 351 (citing favorably the equitable remedies discussed in Coney). Under this theory, "[p]roperty that was once classified as separate or non-marital property can be transmuted into marital property when the spouse with title represents to the other spouse that the property will be shared." Coney, supra, 207 N.J. Super. at 75.
Here, the property in question was purchased well before the parties married. Defendant's name was never put on the deed although he was added to the mortgage, and while the parties dispute whether they intended to add defendant as a co-owner, the trial court determined that plaintiff deliberately kept the property as her own, a finding entitled to our deference. Therefore defendant is not entitled to statutory equitable division of the Bradley Beach condo.
Nor is there any unjust enrichment entitling defendant to equitable remedies. Defendant was awarded a share in the appreciation in value of the residence during the marriage because of the contributions and improvements he made to the home during the marriage and to the pay-down on the mortgage.The court accepted the testimony offered by defendant regarding the appreciation despite the conflict of interest defendant created by hiring the parties' joint expert to provide a second valuation without informing plaintiff or obtaining her consent. Likewise, transmutation is inappropriate, as the court found that plaintiff "signifie[d] a clear intent that she wished to maintain the asset as exempt from equitable distribution."
It is noted that the judge appears to have made an error in his opinion by stating "[defendant] will pay [plaintiff] $20,662" representing half the pay-down on the mortgage. The Final Judgment of Divorce requires plaintiff to pay defendant $20,500 representing this pay-down, which is consistent with the judge's discussion of the issue. The parties do not address this discrepancy.
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VI
The setting of an award of counsel fees in a matrimonial action is controlled by Rule 5:3-5(c) and N.J.S.A. 2A:34-23. While the financial circumstances of the parties is a very significant factor, if a party is found to have acted in bad faith, relative economic positions have less relevance. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000). "An award of counsel fees is within the discretion of the trial court" and will not be overturned unless there is a clear abuse of discretion. Chestone v. Chestone, 285 N.J. Super. 453, 468 (App. Div. 1995).
Here, the trial court awarded counsel fees to plaintiff because of defendant's bad faith in refusing to settle and because of discovery violations. In making the award, the trial judge applied the Rule 5:3-5(c) factors. While plaintiff was in a better position to pay the fees, he found that defendant had taken an unreasonable negotiating position with regards to alimony and equitable distribution, and defendant's counsel's performance had "been marked by intentional and unnecessary delay, obfuscation and misrepresentation." The judge cited defendant's retention of the joint expert to perform an additional appraisal, as well as several discovery violations relating to defendant's disability and personal injury claims. The judge concluded that defendant's conduct had increased plaintiff's counsel fees, thereby justifying the award. Importantly, the court noted that if defendant's negotiating position was the only instance of bad faith, "the court might be inclined to have both parties pay their own fees given the discrepancy in respective incomes."
Defendant disputes that discovery violations occurred, explaining that his attorney was prevented from responding to the allegations on the record. Defendant further contends that he was denied due process by not being permitted to respond to the alleged violations.
It is true that, in several instances, defendant was not granted an opportunity to respond when the trial judge mentioned discovery violations he later cited in support of the counsel fee award. For example, plaintiff objected to defendant's hiring of the joint real estate appraiser for the second appraisal. No report was provided until shortly before trial, and plaintiff sought to examine defendant's attorney regarding any ex parte communications with the appraiser. The judge reserved ruling on whether to allow plaintiff to call defendant's counsel until after trial, and when defendant's attorney asked if the judge "want[s] me to respond to any of that," the judge replied "[n]o, I don't. You didn't need to. I addressed both issues, sir."
In another instance, when defendant's witness, Pan, testified, he used notes to refresh his recollection. Those notes allegedly were not provided beforehand. When questioned by the judge, defendant's attorney stated "[t]hey have been provided." In any event, the judge allowed the testimony over plaintiff's objection once the notes were copied and provided to plaintiff. When defendant's attorney requested an opportunity to comment on the alleged failure to provide the notes in advance, the judge said "[you] may continue your questioning of Dr. Pan. I've ruled on this already."
Later in defendant's examination of Pan, plaintiff again objected to testimony based on reports that had, allegedly, not been provided until that morning. Defendant's attorney asked "[m]ay I respond, Your Honor?," and the judge replied "[n]o, no, no. I'm going to deny that application. Continue with your questioning."
In one other instance, defendant was afforded the opportunity to respond. Defendant was issued a subpoena for certain documents, not produced until the sixth day of trial. The judge asked defendant's counsel "[w]hen were you planning on providing these," to which he replied "[w]ell, as soon as counsel asked for them, Your Honor." The judge noted that the request, obviously, was made by way of the subpoena, characterized the reply as "smug[]" in his written opinion, and found that "counsel had no intention of complying with prior court orders and, had the court not intervened, the documents would never have been produced." Given this violation, which the court noted was the "most flagrant," we see no abuse of discretion in the judge's consideration of defendant's discovery violations.
The trial judge also accorded great weight to the fact that plaintiff had made a settlement proposal to pay limited duration alimony in twice the amount he ordered. That sum was rejected by defendant, who demanded $575 per week in permanent alimony, and fifty percent of the value of the Bradley Beach condo.
Insofar as defendant's objection that the court did not explicitly discuss each of the statutory factors, although true, such an examination is not necessary. Although the statute informs the analysis, no rote recitation of each factor is necessary. The court observed that plaintiff's attorney's hourly rate was lower than that charged by many practitioners with comparable experience, and that she only sought an award to cover fees incurred after defendant refused to settle the case. Furthermore, the court arbitrarily reduced the award to $20,000 in order to avoid diminishing defendant's share of equitable distribution. Although technically, once a finding of bad faith is made, the financial circumstances of the parties are not entitled to be given as much weight, the judge did so in this case to defendant's benefit. See Yueh, supra, 329 N.J. Super. at 461. In our view, therefore, the judge did not abuse his discretion in fixing the amount of fees awarded.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION