Opinion
DOCKET NO. A-2166-12T4
08-05-2015
PATRICIA A. PERRY, Plaintiff-Respondent/Cross-Appellant, v. SCOTT JONES, Defendant-Appellant/Cross-Respondent.
Stanley L. Bergman, Jr. argued the cause for appellant/cross-respondent (Bergman Law Offices, P.A., attorneys; Mr. Bergman, on the briefs). Patricia A. Perry, respondent/cross-appellant, argued the cause pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and St. John. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-267-12. Stanley L. Bergman, Jr. argued the cause for appellant/cross-respondent (Bergman Law Offices, P.A., attorneys; Mr. Bergman, on the briefs). Patricia A. Perry, respondent/cross-appellant, argued the cause pro se. PER CURIAM
Defendant husband appeals from the final judgment of divorce (FJOD), claiming the court erred in awarding plaintiff wife a lump sum of $50,000 as "additional child support." In her cross-appeal, plaintiff presents the following arguments:
POINT I
THE TRIAL JUDGE'S FINDINGS THAT THE SWARTHMORE AVENUE PROPERTY AND THE VANGUARD WELLINGTON FUND ACCOUNT ARE EXEMPT AND NOT SUBJECT TO EQUITABLE DISTRIBUTION ARE NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL, CREDIBLE EVIDENCE IN THE RECORD.
POINT II
EVEN IF THE SWARTHMORE AVENUE PROPERTY AND THE VANGUARD WELLINGTON FUND ACCOUNT ARE NOT EQUITABLY DISTRIBUTABLE UNDER N.J.S.A. 2A:34-23, THE COURT SHOULD HAVE CONSIDERED EQUITABLE REMEDIES SUCH AS CONSTRUCTIVE TRUST TO ACHIEVE A JUST RESULT.
POINT III
THE TRIAL JUDGE IMPROPERLY DENIED ALIMONY BECAUSE THERE WAS NO JUSTIFICATION FOR IMPUTING INCOME TO THE PLAINTIFF, HE IMPROPERLY EXCLUDED THE ACTUAL INCOME OF DEFENDANT, HE MISCHARACTERIZED THE LENGTH OF THE MARRIAGE AND HE MISCHARACTERIZED RESPECTIVE PARENTING DUTIES.
POINT IV
THE TRIAL COURT'S REVERSAL OF ITS AWARD OF COUNSEL FEES TO THE PLAINTIFF WAS CONTRARY TO THE EVIDENCE AS APPLIED TO RULE 5:3-5(c).
POINT V
HOUSEKEEPING ISSUES NOT ADDRESSED BY THE TRIAL COURT'S ORDER.
a. [South Jersey Industries] agreement/lack thereof.
b. Life insurance.
c. Health insurance.
d. Clarification of decision making authority for sale of Lancaster Avenue.
e. Compensation to Patty Perry for reduction of mortgage debt from date of divorce to date of sale.
f. College education expenses.
g. QDRO issue with 401K.
POINT VI
THE COURT RULE GIVES THE COURT DISCRETION TO MODIFY OR DISREGARD THE CHILD SUPPORT GUIDELINES WHERE GOOD CAUSE IS SHOWN.
For the reasons that follow, we reverse the trial judge's award of a $50,000 lump sum payment of additional child support and the vacation of the counsel fee award to plaintiff. We affirm the denial of alimony. We also order a limited remand for the court to determine the value of the marital portion of defendant's pension and 401K to be distributed through a Qualified Domestic Relations Order (QDRO), and to address the obligations of the parties regarding life insurance and health insurance.
I.
Our summary of the record focuses on the evidence relevant to the issues raised on appeal.
The parties married in November 1996 and had two sons, born in 1998 and 2000.
Plaintiff graduated from dental school in 1992 and worked for her father for eighteen years, earning approximately $68,000 in 2009. She filed the complaint for divorce on January 26, 2010, and, on the following day, formed a single-member limited liability company in anticipation of opening her own dental practice. She left her father's practice in May 2010. In June 2010, the parties separated and plaintiff opened her practice.
Defendant worked for South Jersey Industries (SJI) for approximately twenty years, earning "over $83,000 per year" when his employment was terminated in 2005. He filed a wrongful termination suit against SJI and obtained a jury verdict and significant damages award that was reversed on appeal. Trial of that matter was pending at the time of this divorce trial. At the time of trial, defendant had been employed by TD Bank since January 2009 and was earning $61,000.
Plaintiff testified she had been "grossly underpaid" by her father, but had entered into a verbal agreement with him in 2001 to transition into becoming a partner in the practice. The transition plans did not come to fruition, however. She testified she was supposed to have been earning equity over time but her father "reneged on the agreement." The preliminary step of appraising the practice, which was to occur in 2002, was never taken.
Plaintiff stated she approached her father seeking financial help for being underpaid in December 2009. Over defendant's hearsay objection, plaintiff was permitted to testify that her father stated "he could not pay [her] anymore [sic] and that [she] would have to buy the practice at full value." She stated further that her father fired her in May 2010. Plaintiff stated it was not feasible for her to work for another dentist and that the cost of setting up her own practice would be less than the cost of buying her father's practice. Plaintiff testified it would take three to five years to develop the practice. At the time of the trial, she had about 800 patients but said, it took 1500 patients to have a "sustainable practice."
Plaintiff's father did not testify regarding the circumstances of her departure from his practice.
The parties' joint Federal tax returns for 2000 to 2008 listed adjusted gross income that ranged from $119,738 in 2000 to a high of $189,073 in 2007, with an average of $146,343.
For 2009, the last full year she worked for her father, plaintiff's individual tax return listed adjusted gross income of $68,074. Plaintiff testified that after her December 2009 conversation with her father, her income dropped because he diverted patients away from her to himself. However, she received $29,488 in W-2 wages for 2010 from her father's practice for the months she worked there until she left his practice in May 2010. Therefore, if she worked for her father for five months in 2010, the average monthly wages earned was approximately $5898, slightly higher than the average monthly wages she earned in 2009.
Plaintiff's reported adjusted gross income for 2010 was $20,552. Her 2010 income was based on wages earned from working for her father and another dentist for part of the year, $700 from a coaching position and a $13,304 loss from her start-up business.
On her July 2011 Case Information Statement (CIS), plaintiff reported 2010 gross income of $16,184 from her employment at Patty Perry Family Dentistry, and 2011 year-to-date gross income of $10,300. She listed an annual salary of $28,000, and her net average monthly income was $1975. The 2010 profit and loss statement from her new dentistry practice listed a net loss of $23,479. Her adjusted gross income for 2011 was $3280. Plaintiff's 2011 tax return showed gross receipts from the practice of $292,700. She took a draw of $25,000 instead of a salary and declared a business income of $2530. Plaintiff's December 2012 CIS reported year-to-date gross income of $45,000.
Plaintiff's case information statements for January 2010, July 2011, and December 2012 all listed monthly expenses that eclipsed her stated monthly income by significant amounts, yielding monthly deficits of $3170 in 2009, $8223 in 2011, and $4806 in 2012. Although she claimed higher monthly expenses on her CISs, plaintiff agreed at trial that her average expenses were about $6823 per month or $81,876 per year. When asked on cross-examination how she could pay her bills with the small income she was declaring on her tax return, plaintiff stated she paid her bills using the $25,000 draw; some of the $20,000 she had set aside from a 2010 business loan, which she said was exhausted by either October 2010 or January 2011; and credit cards.
Defendant introduced the New Jersey Department of Labor, Division of Wage and Statistics Occupational Profile for dentists in Atlantic County (NJDOL statistics). It showed a mean salary of $120,910, an entry level salary of $94,720, and an experienced level salary of $130,960.
Defendant's individual tax returns listed adjusted gross income, including wages, dividends and rental income, of $64,571 for 2009 and $84,987 for 2010. His October 1, 2010, and July 25, 2011, CISs reported 2009 gross income of $57,774 from his employment with TD Bank, and 2010 year-to-date gross income of $45,783. He listed his salary as $65,000, although his paychecks indicated his salary in 2010 was $60,000. His net average monthly income was $4013. Defendant claimed current monthly life style expenses of $7447.
Plaintiff inherited $155,235 from her aunt in 2004. Although the funds were deposited into a joint checking account and approximately $30,000 of this amount was used for marital expenses when defendant lost his job, plaintiff testified she did not intend to commingle the funds. She claimed that the $30,000 spent from these was actually a loan to defendant that was to be paid back. Defendant did not object to finding the inheritance exempt from equitable distribution, but he denied that the $30,000 spent was some type of loan that he had agreed to pay back. After seventeen months, plaintiff transferred the remaining $125,000 to a money market account in her name alone. The majority of that money and funds from another account were spent on plaintiff's new dental practice.
The trial judge rejected plaintiff's claim that the $30,000 constituted a loan.
II.
In both determining the amount of child support and in denying plaintiff's request for alimony, the trial judge imputed income to plaintiff. Although plaintiff did not appeal from the weekly child support amount that was calculated based upon her imputed income, she does challenge the trial court's reliance upon her imputed income in denying her request for alimony. Plaintiff contends that her claimed "actual income" should be dispositive in determining the support obligations in this case. We disagree.
It is the "potential earning capacity of an individual, not his or her actual income," that must be "considered when determining the amount a supporting party must pay." Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999). A trial court "is authorized to impute income for the purpose of determining child support when a parent is found to be voluntarily unemployed or underemployed without cause." Elrom v. Elrom, 439 N.J. Super. 424, 434-35 (App. Div. 2015) (citing Caplan v. Caplan, 182 N.J. 250, 268-70 (2005)).
As we observed in Elrom, the New Jersey Child Support Guidelines (Guidelines) direct that income "shall" be imputed when a "parent is, without just cause, voluntarily underemployed or unemployed." Id. at 435 (quoting Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, comment 12 on Appendix IX-A to R. 5:6A at 2635 (2015)). The Guidelines state that income is imputed "based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region." Pressler & Verniero, supra, comment 12 on Appendix IX-A to R. 5:6A at 2635. The Guidelines further authorize the court to impute income "based on the parent's former income at that person's usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL)." Ibid.
Underemployment "without cause" is not limited to circumstances in which a parent seeks to avoid a support obligation and can apply to situations in which a parent makes a voluntary choice for a "good" reason. See Bencivenga v. Bencivenga, 254 N.J. Super. 328, 331 (App. Div. 1992); Lynn v. Lynn, 165 N.J. Super. 328, 340-41 (App. Div.), certif. denied, 81 N.J. 52 (1979). Thus, a court will not be limited to a parent's "claims of limited resources and economic opportunity" in determining a support obligation. Lynn, supra, 165 N.J. Super. at 341 (citation and internal quotation marks omitted). "Imputation may also be justified when examining income reported by self-employed obligors, who control the means and the method of their earnings." Elrom, supra, 439 N.J. Super. at 436 (citing Donnelly v. Donnelly, 405 N.J. Super. 117, 128-29 (App. Div. 2009)). The court may exercise its discretion to impute income to a parent by "realistically apprais[ing] capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). These same principles apply when a determination is made as to whether alimony should be awarded. See Elrom, supra, 439 N.J. Super. at 435; Tannen v. Tannen, 416 N.J. Super. 248, 261 (App. Div. 2010), aff'd o.b., 208 N.J. 409 (2011).
A trial court's determination regarding the imputation of income should not be disturbed "unless the underlying findings are inconsistent with or unsupported by competent evidence." Storey, supra, 373 N.J. Super. at 474-75.
As we have noted, plaintiff testified she was "grossly underpaid" by her father for eighteen years. Yet, she was earning $65,000 in 2010, just as she was initiating this divorce action. Plaintiff stated she "decided to go out on [her] own" in December 2009 and that her father "fired" her in May 2010. Although she maintained she was fired, her father did not testify as to the circumstances of her departure and she also described the situation as one in which he said "do what you have to do" and she "started exploring options." The record as to whether she left her father's employ because he fired her or because she decided opening her practice was the better option is therefore inconclusive. The NJDOL Statistics reflect a salary range of $94,720 for entry level dentists to $130,960 for experienced dentists in Atlantic County. Although her practice had gross receipts of $292,700 in 2011, she only drew $25,000 instead of a salary and declared a business income of $2530 for that year.
Plaintiff's contention that she is experiencing a diminished income while she builds her dental practice does not shield her from the imputation of income here. As a result of her decision to open a new practice, her income decreased to one-third of her earnings while employed by her father and was at a level roughly one-fifth of the average income of dentists in her geographical area. It was her burden to show that her income was not so drastically reduced as the result of a voluntary decision. See Storey, supra, 373 N.J. Super. at 473-74. She failed to do so.
Under these circumstances, the Guidelines authorized the trial judge to impute income based upon her historical earnings or upon NJDOL statistics. In relying upon her actual earnings, which were lower than those in the NJDOL statistics, the judge acted well within his discretion.
III.
We next turn to the issue of child support. The memorandum opinion was accompanied by a "Child Support Guidelines-Sole Parenting Worksheet." The worksheet listed a gross taxable income of $13 00 for each parent. After reducing that amount by income tax withholding amounts, the net taxable income amounts were $1031 for plaintiff and $956 for defendant, resulting in percentages of 51.89 and 48.11, respectively, and a weekly child support amount of $176 payable by defendant. Neither party appeals from this application of the Guidelines or the weekly child support amount. The sole issue raised on appeal concerns the award of a $50,000 lump sum amount which the court designated as additional "child support."
"Absent a showing of good cause for deviation, a judge establishing or modifying child support must apply the guidelines." Diehl v. Diehl, 389 N.J. Super. 443, 452 (App. Div. 2006). "A child support order following the Guidelines 'is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines-based award inappropriate in a specific case.'" Capaccio v. Capaccio, 321 N.J. Super. 46, 52 (App. Div. 1999) (quoting Pressler & Verniero, supra, comment 2 on Appendix IX-A to R. 5:6A at 2625).
The court may disregard the Guidelines or adjust a Guidelines—based award in two situations:
if a party shows, and the court finds, that such action is appropriate due to conflict with one of the factors set forth in sections 4, 7, 10, 13, 14, 15, or 20 of Appendix IX-A, or due to the fact that an injustice would result due to the application of the guidelines in a specific case.
[Id. at 52-53.]
The challenged portion of the trial court's decision regarding child support states:
The court will also require a lump sum $50,000 payment from defendant to plaintiff within 30 days. This is an exercise of the court's discretionary authority to award child support over and above the guidelines. See Hughes v. Hughes, 311 N.J. Super. 15, 30 (App. Div. 1998). This lump sum will provide plaintiff a fund from which to pay the mortgage, and other miscellaneous expenses.
After plaintiff requested clarification, the court repeated the statutory factors under N.J.S.A. 2A:34-23(a), and its reliance on Hughes, and stated,
In this case Mr. Jones has a significant amount of cash which for reasons already explained is not subject to equitable distribution. Given the income assumptions and child support [Dr.] Perry will have a monthly deficit of roughly $2000. The
$50,000 is intended to fund that deficit for a period of roughly two years, which will allow the children to stay in the home. After the two years, Dr. Perry's practice will be at level where she can pay those expenses herself.
The opinion fails to include any finding that plaintiff showed that a deviation from the Guidelines in the form of a lump sum payment was "appropriate due to conflict with one of the [enumerated] factors set forth in . . . Appendix IX-A, or due to the fact that an injustice would result due to the application of the guidelines" in this case. Pressler & Verniero, supra, comment 2 on Appendix IX-A to R. 5:6A at 2625.
There are several additional flaws in the trial court's analysis. As a preliminary matter, Hughes does not provide any support for the proposition that the court has the discretion to ignore the Guidelines in determining child support. "[T]he dominant guideline for consideration is the reasonable needs of the children, which must be addressed in the context of the standard of living of the parties." Isaacson v. Isaacson, 348 N.J. Super. 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002). However, the court made no findings as to the needs of the children or the standard of living of the parties.
The stated intention for the $50,000 award is to fund a monthly $2000 gap between plaintiff's income and expenses for two years. It is unclear what basis there is in the record for this reasoning. Plaintiff agreed at trial that her average monthly expenses were $6823, adding up to an annual cost of $81,876. When the weekly child support is added to the $67,600 income imputed to plaintiff on the Guidelines worksheet, plaintiff's income is $76,752, resulting in an annual shortfall of just over $5000. Given plaintiff's historic earnings as a "grossly underpaid" dentist and the NJDOL statistics as to what her reasonable earnings should be, this modest shortfall is insufficient to establish that an injustice would result without the deviation from the Guidelines ordered by the trial court. We therefore conclude that the award of a $50,000 lump sum amount of child support must be reversed.
IV.
Plaintiff argues the trial court erred in denying her request for alimony. We disagree.
Alimony is awarded in order to afford the supported spouse the ability to continue the marital standard of living. Crews v. Crews, 164 N.J. 11, 24 (2000). We review a Family Part judge's decision on alimony for abuse of his or her discretion. See Innes v. Innes, 117 N.J. 496, 504 (1990). "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.), certif. denied, 154 N.J. 608 (1998). Reversal is warranted 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).
In awarding alimony, the court must analyze the factors set forth in N.J.S.A. 2A:34-23(b). The court must also articulate specific findings of fact and conclusions of law with respect to the alimony award. Wass v. Wass, 311 N.J. Super. 624, 629 (Ch. Div. 1998).
The trial court addressed the statutory factors as follows:
The first is the actual need and ability of the parties to pay. The plaintiff made $25,000 in 2011. This minimal income is expected to increase as her practice grows. Defendant has historically made about $65,000. For purposes of this analysis, the court has assumed that plaintiff can or should be making that amount of income as well. Although that is more than her current income, it is less than what the wage tables show an entry level dentist can or should be making. She testified that it should take 2 to 3 years for her to grow her practice and make in the neighborhood of wages set forth in that table.
The duration of the marriage is twelve years. The next factor is the standard of living. That is in the $7,560 range.
The next factor is the earning capacities. Mr. Jones is in all likelihood at his peak in the $65,000 range. Ms. Perry should be making over $100,000 in two to five years.
The next factor is the length of any absence from the job market. Ms. Perry although working did work at a low paying position as a result of her parenting responsibilities and her relationship with her father.
Ms. Perry as parent of primary residence has more of these duties, but Mr. Jones does his share as well.
The next factor is the time necessary to establish a career. Although Ms. Perry doesn't require time, she testified and the court finds it will take another two to three years to get the new practice established.
The next factor is the history of finances and financial contributions. Both parties made significant contributions. The equitable distribution has already been addressed.
The next factors are other property and income. Mr. Jones has significant other assets, the cash and the home. Both of these are income generating (in the form of rentals or interest). The tax treatment of any alimony, typically deductible to payor and income to payee is to be considered.
In this case, the parties' current incomes (as determined by the court) are roughly equal. The plaintiff has greater income potential. The defendant has more separate assets. Given the relatively equal position of the parties, as well as the midterm marriage of the parties the court declines to enter an alimony award.
In challenging the court's alimony decision, plaintiff argues (1) there was no justification for imputing income to her; (2) the court improperly excluded the actual income of defendant; (3) the court "mischaracterized the length of the marriage"; and (4) the court "mischaracterized respective parenting duties."
Contrary to plaintiff's argument, the trial judge was not required to accept her representation as to her "actual income." As we have discussed, the trial judge acted within his discretion in imputing income to plaintiff.
Plaintiff notes that the trial judge erred in stating the precise duration of the marriage. This error is of no consequence. Regarding parenting duties, the judge said plaintiff "as parent of primary residence has more of these duties, but Mr. Jones does his share as well." Similarly, plaintiff's disagreement with that characterization does not undermine the court's decision. Plaintiff also argues the court erred in failing to include defendant's dividend and rental income in income figure used for him. Even if dividend and rental income were included in the income figure used for defendant, it would not require a different result.
Defendant did not dispute plaintiff's testimony that he earned dividend income of $18,706 in 2006, $20,926 in 2007, and $15,943 in 2008. However, plaintiff neither raised this issue with regard to the determination of child support nor challenged the weekly child support amount.
We discern no abuse of discretion in the judge's rejection of plaintiff's request for alimony.
V.
We next address plaintiff's challenge to the court's decision that two assets were not subject to equitable distribution: the Swarthmore Avenue house that defendant's mother deeded to him before the parties were married, and a Vanguard Wellington account (Wellington account), which defendant's mother gifted to him, transferring the account sometime in 1990. She contends these assets should be subject to equitable distribution "to some degree" because she made financial and non-financial contributions to them and that such contributions contributed to an increase in the assets' value. We disagree.
The parties identified several accounts in their case information statements as Vanguard money market accounts or Vanguard (Wellington) accounts. We refer to the account in dispute here, which was identified as a premarital asset of defendant's and valued at approximately $304,900 in both defendant's October 1, 2010 CIS and in plaintiff's January 19, 2010 CIS.
Alternatively, plaintiff argues that, if the two assets are exempt, the court should have considered other equitable remedies such as a constructive trust. Because this issue was not raised at trial, it is not properly before us on appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014).
The scope of our review of a family court's division of assets is narrow. Genovese v. Genovese, 392 N.J. Super. 215, 222 (App. Div. 2007).
We decide whether the trial judge mistakenly exercised [his or her] broad authority to divide the parties' property and whether the result was reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence.The applicable standard of review is whether the trial judge's findings are supported by adequate, credible evidence in the record. Rothman v. Rothman, 65 N.J. 219, 233 ( 1974); see also, Sauro v. Sauro, 425 N.J. Super. 555, 573 (App. Div. 2012), certif. denied, 213 N.J. 389 (2013).
[Valentino v. Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998) (citation and internal quotation marks omitted).]
The Swarthmore Avenue property was owned by defendant's mother until it was deeded to him for one dollar in 1988. The parties lived there, rent-free, from 1996, after they were first married, until 2000, when they bought the marital home. Plaintiff's name was never on the Swarthmore Avenue deed.
The parties agreed that the former marital home was a marital asset, but disagreed as to its value. No issue has been raised on appeal regarding this asset. --------
To support her claim that the Swarthmore Avenue property should be subject to equitable distribution, plaintiff testified that she maintained the property physically by putting up drywall, maintaining the lawn, making minor repairs, building a closet, putting in new ceilings and carpets, putting the garage door in, as well as hiring contractors during the time they lived in the home. She testified that, after they moved out in 2000, she also "managed the rental property" when they rented the top floor. TD Bank records from an account in plaintiff's name reflected plaintiff deposited the rent checks and paid the taxes and utilities on the property from 2007 through 2009. Plaintiff also introduced copies of checks showing marital funds were used to maintain the house.
In response, defendant minimized plaintiff's contributions. He testified that plaintiff may have renovated the closet, "worked in the yard on occasion," and "might've bought a can of paint and applied it someplace." While plaintiff described herself as a "rental manager" for the property, defendant testified that all she did was "say[] yes on the phone and tak[e] a check." He maintained that plaintiff did not financially contribute to that house in terms of taxes, rent or any of the associated expenses and that he used funds from the Wellington account to pay those expenses.
Both parties listed the Wellington account as exempt on their CISs and valued it at approximately $304,900. The funds were never commingled. The account was always in defendant's name; plaintiff had no check-signing privileges or power of attorney to use those funds.
Plaintiff claimed she was entitled to at least a portion of the Wellington account based on her claim that defendant "protected" that asset and the parties had to use marital funds to care for his mother instead. Defendant did not dispute this allegation but instead offered proofs that his mother's social security income and the tax benefits received as a result of claiming her as a dependent more than covered the amount of expenses plaintiff posited were spent on her care.
The trial judge valued the marital estate and made findings as to the statutory factors relevant to his decision on equitable distribution. The trial judge rejected plaintiff's claims to the Swarthmore Avenue property and the Wellington account, noting that pursuant to N.J.S.A. 2A:34-23, property "acquired . . . by gift, devise or intestate succession shall not be subject to equitable distribution." The judge stated further:
The assets here were never comingled. The parties' residence at the home was some time ago. Although it may have been the expectation of the parties that the separate monies be used for Mrs. Jones that does not render the assets non-exempt. Mr. Jones presented proofs, which although not completely dispositive could support a finding that by claiming Mrs. Jones as a dependent and by utilizing her social security the parties actually made money caring for Mrs. Jones.
Nor is there any compelling evidence that the $30,000 of plaintiff's inheritance utilized for marital purposes was the subject of an agreement to be repaid.
We conclude that the trial judge's decision to exclude these two assets from equitable distribution was sufficiently supported by the evidence and was not "clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence." Valentino, supra, 309 N.J. Super. at 339 (citation and internal quotation marks omitted).
VI.
Plaintiff next argues that the court erred in reversing the $30,000 counsel fee award to her. We agree.
Plaintiff was pro se at trial. The court initially awarded her $30,000 in counsel fees in the FJOD but reversed that ruling, accepting defense counsel's argument that no certification of services had been presented in support of the claim. This argument was erroneous, however, because plaintiff's prior attorney submitted certifications regarding services rendered prior to trial, which included: a certification of services for $1210 in fees and costs in connection with the October 19, 2010 motion for enforcement of litigant's rights; a second certification of services for $1430 in fees and costs in connection with the August 1, 2011 motion; and a third certification of services for $1080 in fees and costs in connection with the December 22, 2011 motion for enforcement of prior orders. In this last certification, the attorney certified that plaintiff had paid a total of $23,500 in costs and retainers at that point and had an outstanding balance of $35,802 as of December 21, 2011. The record also includes certifications for services rendered after the court reversed its previous order for fees.
Our review of a trial court's decision regarding a request for counsel fees is subject to an abuse-of-discretion standard. Platt v. Platt, 384 N.J. Super. 418, 429 (App. Div. 2006). An "abuse of discretion" occurs "when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation and internal quotation marks omitted). Because the trial judge's decision to reverse the award of counsel fees was based upon an erroneous factual basis, it constituted an abuse of discretion. We therefore reverse the decision to vacate the counsel fee award.
VII.
In Point V of her brief, plaintiff raises a number of "housekeeping" issues she contends the trial court erroneously failed to address. To the extent that any of these issues do not lack merit, R. 2:11-3(e)(1)(E), they require only limited discussion.
At the time of trial, defendant had obtained a favorable jury verdict in his wrongful termination lawsuit against his prior employer, which had been reversed on appeal. Plaintiff disputes a statement by the trial court that she agreed she would "only be entitled to a portion of the lost wages component of the SJI lawsuit" and claims that she should be entitled to "make [her] argument for equitable distribution of a potential punitive damages award." Based upon our review of the trial judge's decision, we conclude the judge did not rule on what portion, if any, of a favorable verdict or settlement, should be subject to sharing with plaintiff. Since this issue is not ripe for determination until defendant obtains a verdict or settlement, we decline to address the issue in this appeal.
Plaintiff complains that the court failed to address her request for a provision requiring defendant to maintain life insurance for the benefit of the children. Defendant contends plaintiff failed to raise these issues at trial, but agrees to maintain his life insurance policies naming his children as equal beneficiaries until they are emancipated as long as plaintiff does the same. On remand, the trial court should address the obligation of the parties to maintain life insurance for the benefit of the children.
Plaintiff contends the court also failed to address health insurance and deductibles. Defendant responds that the children are covered on his health insurance and the deductibles are covered by the child support guidelines. Medical expenses are a basic need meant to be covered by child support, and an award calculated using the support guidelines consequently covers regular out-of-pocket medical expenses. Pressler & Verniero, supra, comment 8 on Appendix IX-A to R. 5:6A at 2632 (2015). The trial court ordered that unreimbursed medical expenses over the first $250 be split evenly between the parties. However, the judgment was silent as to defendant's obligation to continue to maintain the children on his health insurance plan. On remand, the trial court should address the obligation of either or both parties to maintain health insurance for the children.
In his written decision, the judge ordered that defendant's pension and 401K will be the subject of QDROs. However, as plaintiff notes, the court failed to determine the value of the marital portion of defendant's pension and 401K. At trial, defendant would not stipulate to the value of the marital portion, but agreed that plaintiff would receive half of the marital portion. He prepared an exhibit that calculated the marital portion at 60.59 percent of the total, or $304,570, and estimated plaintiff's half of the marital portion at $152,285. On remand, the court should determine the value of the marital portion of defendant's 401K and pension to be distributed to plaintiff by way of a QDRO.
Plaintiff also presents arguments relating to issues that were not raised at trial, "the credit [plaintiff] should be given or granted for paying down the mortgage until the sale of the house" and the children's college education expenses. Since plaintiff failed to raise these issues at trial, we decline to address them here. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014).
Plaintiff also asks for "clarification about decision making authority for the sale of the Lancaster Avenue home." According to the FJOD, the marital residence is to be sold "within one year of the youngest child turning eighteen years old or graduating from high school, whichever is later." The youngest child does not turn eighteen until July 2018. If the parties dispute the application of the trial judge's directions regarding the sale of the marital residence at that time, they may present their arguments in a motion directed to the trial court.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. 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