Opinion
DOCKET NO. A-3121-11T1
04-24-2013
NEETI WADHWA, Plaintiff-Respondent, v. AMIT SETHI, Defendant-Appellant.
Damiano Law Offices, attorneys for appellant (Toni Belford Damiano, of counsel; Ruchika S. Hira, on the brief). Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for respondent (Brian McFadden-Dinicola, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1299-11.
Damiano Law Offices, attorneys for appellant (Toni Belford Damiano, of counsel; Ruchika S. Hira, on the brief).
Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for respondent (Brian McFadden-Dinicola, of counsel and on the brief). PER CURIAM
Defendant husband appeals from a dual final judgment of divorce entered following a bench trial on child support, alimony, equitable distribution of marital assets and their dissipation. The parties reached an agreement on custody and parenting time prior to trial. The issues before us are narrow. Defendant's objections are limited to the dissipation and distribution of marital assets, and any objections to other provisions of the judgment are abandoned. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983). Because the judge's written opinion on dissipation does not include an adequate statement of her factual findings and legal conclusions and appears to include a double counting of funds favoring plaintiff, we remand for further consideration and supplementation of the judge's findings and reasons in conformity with this opinion.
A
Plaintiff raises a preliminary issue. She urges us to dismiss the appeal because defendant's appendix includes documents that are not part of the record and does not include parts of the record upon which he could have expected plaintiff to rely. R. 2:6-1. We reject that approach.
In the first place, we cannot identify documents that were and were not admitted into evidence with certainty. At the outset of the trial, the judge reserved decision on admissibility of documentary evidence until the end of trial, and the judge followed that plan. After testimony was taken, the attorneys conferred, using "sheets" kept by the court clerk on exhibits marked. They then met with the judge in chambers and resolved the evidentiary issues.
If the meeting in chambers was recorded, we do not have the transcript, and the "sheets" kept by the court clerk are not among the documents included in the appendix submitted by defendant or plaintiff. The judge described the post-trial proceedings as follows:
I had a conference with your attorneys in chambers who clearly worked over the lunch hour to work through the objections or not relative to each piece of evidence. And as you know there were a lot of pieces of evidence. And we were able to resolve the issues of the disputed evidence based upon our discussions in chambers.The foregoing explains our uncertainty about the record.
The procedural error is evident. See R. 1:2-1, 1:2-2, 1:7-2, 1:7-3. But because neither party challenges any evidentiary ruling, any error has been waived. Muto, supra, 189 N.J. Super. at 420-21. Moreover, because both parties have identified documents that each contends is not part of the record and both have filed an appendix that presumably includes the documents they deem essential for resolution of the appeal, there is no reason why we cannot address the merits. Accordingly, we will not consider the documents in dispute, none of which are essential to our determination, and where the appendix does not include a document discussed at trial and relied upon by the judge, we will accept the judge's findings because there is no basis to conclude that the finding is erroneous. See Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177-79 (App. Div. 2002).
By way of instruction, the parties should have resolved doubts about the record by way of motion to settle the record. R. 2:5-5(a). In the interest of the clients and the court, such a motion should be raised when the problem is evident, not after the matter has been briefed and the appendices have been filed. Lest the litigants misunderstand, the limited remand we direct does not contemplate the presentation of evidence that was not admitted at trial. The record is closed.
Defendant did move to supplement the record after the briefs and appendices were filed, and a panel of this court denied that motion. We decline to reconsider that determination.
B
To provide a framework for our discussion of the evidence, we address the law governing dissipation first. Dissipation of marital assets is a factor relevant to the distribution of marital assets. N.J.S.A. 2A:34-23.1(i). The first step in equitable distribution is identification of the assets and liabilities acquired during the marriage. Rothman v. Rothman, 65 N.J. 219, 232 (1974); Monte v. Monte, 212 N.J. Super. 557, 567 (App. Div. 1986). Generally, assets expended during the marriage are not taken into account. Carlsen v. Carlsen, 72 N.J. 363, 371 (1977). But where one spouse has "dissipated the marital assets, or otherwise disposed of them in fraud of the other," a court properly imposes a debt on the dissipating "spouse in favor of the other." Kothari v. Kothari, 255 N.J. Super. 500, 510 (App. Div. 1992). The spouse alleging dissipation has the burden of proof on the issue. See Monte, supra, 212 N.J. Super. at 567-68 (discussing the burden of proof in a case involving division of a debt wife alleged husband incurred as a consequence of intentional dissipation); see also Kothari, supra, 255 N.J. Super. at 509 (discussing the evidence supporting a finding of dissipation and noting the trial court "was free to disbelieve" the offending party's uncorroborated explanation of a purpose other than dissipation).
The post-hoc examination of marital spending required where dissipation is alleged implicates competing considerations relevant to the marital partnership. In Kothari we explained:
"When one party to a divorce proceeding spends marital funds extravagantly, or merely for his or her own benefit, that obviously diminishes the amount of property which is available for distribution by the divorce court. On the other hand, until such time as the parties are contemplating a divorce, they are generally vested with the authority to spend marital funds for their own enjoyment . . . . The question of dissipation of marital assets thus involves an attempt to accommodate these two
conflicting interests in the marital estate."
[255 N.J. Super. at 506-07 (quoting Annotation, Spouse's Dissipation of Marital Assets Prior to the Divorce Court's Determination of Property Division, 41 A.L.R. 4th 416, 419 n.1 (1985)).]
In Kothari, the court held that the balance between these considerations ultimately depends on "whether the assets were expended by one spouse with the intent of diminishing the other spouse's share of the marital estate." Id. at 507. And the court identified factors relevant to that question:
"(1) the proximity of the expenditure to the parties' separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditure benefited the "joint" marital enterprise or was for the benefit of one spouse to the exclusion of the other, and (4) the need for, and amount of, the expenditure."
[Ibid. (quoting Spouse's Dissipation, supra, 41 A.L.R. at 421).]
The court left open the question whether dissipation could include spending before the parties are considering separation that is for a "purpose[] inimical to the marriage and [done] in association with some form of matrimonial misconduct." Ibid. Inimical is generally understood to mean "injurious" or "harmful."
A spouse's generosity to others — whether it consists of acts of kindness or expenditures on gifts — necessarily implicates the time and resources the spouse has to devote to the marital partnership. But generosity of that sort is not universally viewed as injurious to the marital enterprise. Indeed, such charitable actions are commonly viewed as carrying their own benefit — one not readily quantifiable in dollars and cents. Additionally, the giving of money to a relative is the type of conduct that a spouse disappointed at the end of the marriage may, in hindsight, view differently than he or she did at the time. Accordingly, claims of dissipation based on giving to a spouse's family pose difficult questions for a judge, and in this circumstance focus on whether the action was taken with the intent to deprive the other of a share of the marital estate is critical.
Our decision in Kothari illustrates the point. That case involved a husband who claimed he diverted marital assets to his family to satisfy a moral obligation to his parents. Id. at 504. We affirmed the trial court's decision to impose a debt to compensate the wife for her interest in marital assets dissipated by the husband "between the date of the marriage on April 30, 1981, and the filing of the divorce complaint" nine years later. Id. at 505. In the interim, the parties had children, but they both acknowledged that their marriage "was beset with strife from the beginning." Id. at 504. Moreover, the husband had filed for divorce on three prior occasions, in 1985, 1987 and 1988. Ibid.
This court concluded:
The expenditures were clearly not made to benefit the marital enterprise. They served only defendant's personal interest and were designed to divert from plaintiff her equitable share of the marital assets. The court's finding that defendant was at all times thinking about and planning for a divorce is demonstrated not only by his total abandonment of plaintiff and their child, but by his institution of divorce actions on three different occasions between August 1985 and July 1988.
Furthermore, as the trial court found, defendant's claim that the money he was supplying to his parents was to satisfy an indebtedness was supported by nothing other than his uncorroborated testimony. As the finder of fact, the trial court was free to disbelieve that testimony. Moreover, any claim by defendant to a position of "moral" justification because he was using the money to support his parents is at once neutralized by the fact that the payments were being made at the expense of defendant's wife and child whose paramount claim upon his succor cannot be challenged.
[Id. at 509.]
In Kothari, the trial court had also made specific findings in fixing the debt the husband owed the wife — one-half of the sum the husband gave his parents over his wife's objection; one- half of a fund the husband established by liquidating marital assets and spent for his own purposes while contemplating divorce; and one-half of the amount he spent to support his parents who lived with him after he abandoned his wife. Id. at 505-06.
C
With the controlling standards in mind, we turn to address the evidence in this case. Plaintiff Neeti Wadhwa and defendant Amit Sethi married in India in October 2002, when both were in their late twenties. Their marriage was arranged, and they first met nineteen days before their wedding in New Dehli, where both of their parents lived. Following the ceremony, plaintiff emigrated to the United States, where her husband had been living and working before the marriage.
The parties' first and only child was born in October 2006. There is no dispute that the parties separated in early December 2009 — they stipulated to separation as of that time and agreed to value their bank and investment accounts, other than their 401Ks, as of December 2009. Plaintiff filed her complaint for divorce on December 17, 2010. The parties' respective 401Ks were divided equally by way of qualified domestic relations orders in accordance with their respective values as of the date of the complaint.
Both parties contributed to the marriage. Plaintiff, who was educated in India and obtained a license to trade securities after coming to this country, joined the workforce in May 2004. Her initial annual salary was $28,000, and she was earning about $42,000 in October 2006, when she took maternity leave. After the birth of the parties' first and only child, plaintiff did not return to work. About a year after she filed her complaint for divorce, plaintiff took a job for twenty to twenty-five hours a week at an hourly wage of $8.60.
Defendant was employed throughout the marriage. Between 2007 and 2011 he earned an average of about $150,000 per year. In addition, there is no dispute that he had savings of about $63,000 when the parties married.
During the marriage, the parties had a joint account with Bank of America; plaintiff had her own checking account and a certificate of deposit with Chase; and defendant had his own accounts with Bank of America, Chase, PNC, ING, Indus American Bank, and ICICI Bank in India. He frequently moved money from one account to another. As of early December 2009, the total balance of their joint and separate accounts — excluding their respective 401Ks, plaintiff's Chase checking account and the $12,000 certificate of deposit, which she transferred to the checking account on February 24, 2010 — was $99,549.61. That total value includes the balance of defendant's ICICI account as of November 3, 2009. Between August 17, 2007 and March 11, 2009, defendant deposited $27,703 in the ICICI account. Other than the deposits, the only activity in that account was the addition of interest and the subtraction of fees.
When the judgment was entered, the marital residence the parties purchased in 2006 was in foreclosure and had negative equity. In addition, both parties had a car and they stipulated that each was worth $20,000.
Throughout the marriage, the couple maintained contact with members of their respective families, and they went to India for vacation in the first three years of their marriage and stayed with family. In 2005, defendant's brother lived with them here, and they traveled with him to India for his wedding in September 2005. Plaintiff helped plan the wedding — everything from the catering to the clothes her mother-in-law and brother-in-law wore.
By plaintiff's account, the wedding was "great" and "appreciated by all friends and relatives." Afterward, she and defendant stayed with her in-laws, and they saw a fertility specialist while in India. At some point during the visit, however, plaintiff and her husband argued. Defendant's father got involved and directed plaintiff to leave his home. Plaintiff went to her parents' home alone, and defendant attended funeral services for an uncle and then returned to the United States without notifying plaintiff, on or about September 21, 2005. Although defendant denies sending it, plaintiff produced an e-mail from him dated October 1, 2005, in which defendant acknowledges leaving India in anger and professes his interest in making their marriage work. When plaintiff returned to the United States, they went to a second fertility specialist here.
Pointing to their argument in September 2005, plaintiff alleged that defendant dissipated $185,000 that year. She presented a spreadsheet of transactions she alleged were dissipations between 2005 and 2009. For 2005, it includes thirteen wire transfers to India totaling $132,000: $32,000 wired in March and April 2005; and $100,000 wired in September and October 2005. Plaintiff also listed a $25,000 check defendant wrote to his brother on April 14, 2005, and three other checks totaling $28,000. Two of those checks were drawn against the joint Bank of America account and one against defendant's Chase account — #253 (BOA) for $6000 in November 2004, #256 (BOA) for $10,000 in July 2005, and #93 (Chase) written to defendant for $12,000 in October 2005. Check #256, however, is a $10,000 check payable to plaintiff.
Only the check written to plaintiff is included in the appendices provided on appeal.
Defendant explained that the $25,000 check was his brother's wedding gift and that the money he wired to India was to pay for his brother's wedding. Neither defendant nor plaintiff, however, could say how much the wedding cost. Plaintiff and defendant gave different accounts of the customary allocation of wedding expenses in India. By plaintiff's account, the bride's family customarily pays for the wedding. According to defendant, the custom is for the bride's family to pay for the ceremony, and the groom's family to pay for the parties arranged subsequent to the wedding. As the oldest son, he stated that he was expected to pay for his brother's wedding if he could. There is no dispute that defendant had about $63,000 in savings when he and plaintiff married. The trial judge determined that defendant dissipated $185,000 in 2005.
As noted above, the parties saw a fertility specialist in this country after they returned from India. Early in 2006, they learned that plaintiff was expecting and both acknowledge being happy about this news. In May of that year they purchased a home in Edison for $310,000. Defendant provided the down payment and other funds due from borrower. While the closing statement is not entirely clear, in that it does not address a second mortgage, it appears that the parties paid at least $37,406 to close and financed the remainder.
Considering their purchase of a home and the birth of their child in 2006, the judge discredited plaintiff's testimony suggesting the marriage "was irretrievably broken in 2005."
There is no evidence that defendant sent any money to India in 2006. Plaintiff questioned three checks totaling $50,000 written in 2006: #268 (BOA) for $20,000 on January 31; #94 (Chase) for $10,000 on April 5; and #97 (Chase) for $20,000 on April 21. According to defendant, these checks were related to the purchase of the house in Edison.
Finding that defendant did not explain the checks totaling $50,000, the judge concluded that defendant dissipated $50,000 in 2006.
In February 2007, plaintiff and the child went to visit her family in India, and defendant joined them in April 2007. While there, they had another argument. Defendant's father was involved, and he called the police. At that time, plaintiff indicated that she did not have any complaints about her husband but that his father was harassing her about the dowry. Defendant returned to Edison sometime in May, and plaintiff stayed with her family in India until July.
In June 2007, defendant received an e-mail from an attorney in India, stating he was writing at the request of plaintiff's parents and expressing their interest in an amicable settlement of the parties' marriage. According to defendant, plaintiff denied knowing anything about it.
According to plaintiff, things were rocky after she returned to Edison in July 2007. By her account, defendant frequently threatened to let their house go into foreclosure, file for bankruptcy and leave her without anything.
For the year 2007, plaintiff challenged one $5000 wire transfer defendant made to India in October 30, 2007. It is worth noting that on November 2, 2007, within days of the October 30 wire transfer to India, $5000 was deposited in defendant's ICICI account in India, and remained there until December 24, 2009. Plaintiff also questioned ten cash withdrawals defendant made between April 13 and December 24 of that year, totaling $29,200. Thus, her total claim for dissipation in 2007 was $34,200, and that is the amount the judge found was dissipated in 2007.
Plaintiff testified about five of these transactions amounting to $27,000, one of which was on April 13, before the "major argument" in 2007. The record presented on appeal does not include any evidence confirming the others.
In 2008, the police came to the parties' home twice. Each party called once, but neither filed a complaint nor applied for a restraining order. Plaintiff acknowledged that she and her husband made up after both incidents and admitted that the family used their season passes to the Philadelphia Zoo and Sesame Place and traveled to other states in 2008.
Plaintiff contended that defendant dissipated $76,000 in 2008. She alleged that he wired $5000 to India on five occasions in 2008 and withdrew a total of $51,000 from accounts with Chase and Bank of America in eight separate transactions that year. The statement for defendant's ICICI account in India reflects four deposits of $5000, or $20,000, in 2008. That money was in the ICICI account on December 24, 2009. There is no evidence in the record we have supporting the existence of a fifth $5000 transfer to India in 2008.
In December 2009 the parties again traveled to India. According to plaintiff, the trip was arranged in an effort to have their parents help them work out their marital problems. By defendant's account, they went because his parents were ill.
Before leaving, plaintiff went to the police station in Edison to report that she was taking her child to India because she was concerned that defendant would report her for kidnapping. She left in early December, and as noted previously that is when the parties agreed that they separated. After defendant arrived in India, the couple met with their relatives but were unable to help them resolve their differences. According to plaintiff, while they were in India defendant told her he had stopped paying the mortgage, put the house in foreclosure and might lose his job. She claimed he told her to stay in India and threatened to take their child from her.
Plaintiff claimed defendant dissipated $25,003 in 2009. She pointed to a $2000 transfer to his ICICI account on October 27 and $7000 transfer from his Chase account to the ICICI account on December 16. The $2000 transfer was included in the division of the ICICI account. The $7000 transfer was included in the division of the Chase account, which was valued as of December 4, 2009. Plaintiff also relied on a $14,853 withdrawal from defendant's PNC account made on December 15, 2009 and six ATM withdrawals in October 2009 totaling $1150. The judge excluded the $14,853 withdrawal on the ground that that money was included in the balance of that account when divided, but she did not exclude the transfers of $2000 or $7000 that were already accounted for in the division of the ICICI and Chase accounts.
In February 2010, plaintiff returned to Edison with her son and her brother. Shortly after arriving she obtained a temporary restraining order against defendant, who was still in India. On May 5, 2010, the parties entered into a consent order dismissing the temporary restraining order and addressing custody and support. According to defendant, he was shocked and angry when he learned in February or March that plaintiff had filed the complaint. He admitted to doing a lot of "stupid" things thereafter, such as transferring money to his account in India with the ICICI Bank and canceling credit cards. When he returned to the United States, defendant withdrew $20,600 from an account to purchase a car; plaintiff had the car defendant used during the marriage.
D
In determining that defendant dissipated $355,350 between March 2005 and December 2009, the judge identified the ultimate question, articulated in Kothari, presented by a dissipation case: whether the assets were expended by one spouse with the intent to diminish the others' share of the marital estate. The judge also identified the factors pertinent to the ultimate inquiry: 1) proximity to separation; 2) whether the expenditure was typical of those made prior to the breakdown of the marriage; 3) whether the expenditure benefited one party to the exclusion of the other; and 4) the need for and amount of the expenditure.
Our difficulty is with the judge's application of the law to the evidence and, in some instances, the absence of factual findings supporting her determination of the amount dissipated. For those reasons, we are remanding to give the judge an opportunity to reconsider dissipation and supplement her findings in light of this opinion.
The judge recognized that some of the transactions plaintiff challenged predated their separation by more than four years. She found, however, that the expenditures "all appear to be proximal to major arguments between the parties, which could lead to the inference of divorce planning."
As we understand that statement, the judge concluded that defendant was acting with the intent to deprive plaintiff of her share of the marital estate at times during the marriage that followed major arguments. Imposition of a debt to plaintiff on defendant for expenditures he made at those times and with that intent is not inconsistent with Kothari. Indeed, in Kothari this court affirmed a determination that the husband acted with that intent throughout marriage in giving money to his parents, despite the fact that they were together and raising a family for much of the time.
The judge's reasoning, as it stands, does not support the conclusion that defendant dissipated marital funds prior to their first major argument, which occurred in India in September 2005, after his brother's wedding. Without further explanation, there is no basis for counting as dissipation the $25,000 check defendant sent to his brother in March 2005 or the $32,000 he wired to India prior to the wedding. Moreover, the judge did not address significant evidence in the record giving rise to the inference that plaintiff and defendant were both interested in making a wonderful wedding for his brother. After all, plaintiff acknowledged the important role she played in planning the wedding, without uttering a word indicating that she was anything less than happy and proud to be involved. Finally, in assessing defendant's intention to dissipate assets prior to their September argument by sending $32,000 to India and giving his brother $25,000, the fact that defendant had $63,000 saved when he married plaintiff has some relevance — like dissipation, assets brought to the marriage, even if they have lost their immunity due to commingling, are relevant to equitable distribution. N.J.S.A. 2A:34-23.1(c),(i).
Defendant argues the judge erred in concluding that the $63,000 was commingled and properly treated as a marital asset. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2)(E). It suffices to note that the determination is supported by adequate evidence and consistent with controlling legal principles.
Accordingly, we remand to permit the judge to reconsider and explain why defendant should or should not be held responsible for dissipating $57,000 prior to the parties' first "major argument" in 2005. In this regard, it is worth noting that in discussing the respective credibility of the parties the judge discredited much of plaintiff's testimony characterizing defendant as overbearing and controlling. In addition to addressing the transactions prior to the parties' argument in September 2005, the judge should explain whether the $10,000 check included in the list was in fact payable to plaintiff and improperly included as a dissipation.
With respect to 2006, the judge gave no explanation for her conclusion that defendant dissipated $50,000, beyond noting that he had written $50,000 in checks that he did not explain. As we understand the judge's reasoning, she attributed unexplained expenditures proximate to major arguments to divorce planning. But there is no evidence of a major argument in 2006. To the contrary, there is significant evidence of harmony and planning of a future together. During that year, their child was conceived and they bought a home. Indeed, there is evidence of significant expenses that were incurred that year in connection with the purchase of their home. On remand, the judge should reconsider and provide factual findings and reasons for including the $50,000 defendant claimed was used to purchase the home and support the family.
There is no question that there was a significant argument while the parties were in India in the Spring of 2007, and defendant left India for home without his family in May 2007. Plaintiff and the child stayed in India until July, and in June 2007 defendant received an e-mail from an attorney in India broaching the topic of a settlement of the marriage on behalf of plaintiff's parents.
Thereafter, there was little evidence suggesting marital tranquility and planning for a future together. There is no dispute that both plaintiff and defendant summoned the police to their home in 2008 during separate instances of domestic discord. Accordingly, we accept the judge's determination to treat transfers of funds to India and expenditures not attributable to expenses from Spring 2007 forward as dissipations.
The matters requiring reconsideration and additional explanation for years 2007, 2008 and 2009 concern double counting and the adequacy of findings supporting the dissipations the judge attributed to defendant.
The issue of double counting is raised by withdrawals and wire transfers to India that appear to coincide with the depositing of funds, as United States dollars, in defendant's ICICI account in India. As noted previously, plaintiff received one-half of all the deposits made to that account between July 25, 2007 and November 3, 2009.
The judge counted a $5000 wire transfer to India on October 30, 2007 as a dissipation, but defendant's ICICI bank statement reflects a $5000 deposit made on November 2, 2007. The judge found that defendant wired $5000 to India on five occasions and included that $25,000 in calculating defendant's dissipation in 2008. Defendant's ICICI account statement reflects four deposits of $5000, or $20,000, in 2008. In addition, as previously noted, the judge counted wire transfers of $2000 and $7000, which were already equitably distributed in the division of the ICICI and Chase accounts.
And, as previously noted, our record contains no evidence supporting the existence of a fifth transfer.
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On remand, the judge should make the findings that explain why these wire transfers that apparently were deposited into the ICICI account and divided evenly between the parties should not be excluded from the amount defendant is charged with dissipating. If there is no reason, then the amount of dissipation should be adjusted.
Additional findings are needed to explain other dissipations assessed. The judge made no findings supporting her determination that defendant wrote checks for $29,200 in 2007 that amounted to dissipations. Based on our review of the statements provided on appeal and the testimony given at trial, there is support for a finding that defendant wrote checks totaling $27,000 — checks written on April 13, May 22 and 23, October 17, and December 24, 2007. Similarly, the judge did not explain why she concluded that $1150, taken as relatively small ATM withdrawals in 2009, were included as dissipations of marital assets rather than recognized as withdrawals of cash for ordinary living expenses. The judge should reconsider and explain these determinations, or make an adjustment to exclude those that lack the necessary support.
E
Defendant raises two issues unrelated to dissipation.
We decline to consider defendant's claim that the court erred by excluding plaintiff's Chase checking account and certificate of deposit from the accounts subject to equitable distribution because it does not appear that defendant raised this issue in the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In her written decision, the judge noted that defendant did not "address the issue of specific bank accounts in his summation."
Defendant also claims the court erred in failing to recognize that plaintiff received more than her share of the marital assets because of the manner in which their cars were valued and the date on which his Scottrade account was valued. Defendant asserts that he withdrew $12,670.83 from his Scottrade account, after the date for valuing that account, in order to purchase his car. He argues that the court should have excluded that withdrawal from equitable distribution because that adjustment was a necessary component of the parties' agreement to offset the value of their respective cars — marital funds had been used to pay for plaintiff's car and should be used to pay for his.
On remand, the judge should reconsider her determination that the parties' stipulations about the cars and the date on which the accounts would be divided adequately addressed the issue of the car and the Scottrade account. There is a need to address the question in light of the objections defense counsel raised at trial. That discussion is found in the November 29, 2011 trial transcript.
The matter is remanded for reconsideration in conformity with this opinion on the record as it stands. We stress that the limited remand is not an opportunity to present evidence not admitted at trial. We retain jurisdiction.
In addition to addressing the matters identified above, the judge should provide a list of the exhibits that were admitted at trial and, if necessary, conduct a hearing to settle the record. No later than sixty days after the date of this decision, the judge shall file a copy of the amended decision, judgment and exhibit list with the clerk of this court. Upon receipt of the amended decision and judgment, the clerk will issue a briefing schedule.
Affirmed in part and remanded for reconsideration; jurisdiction is retained.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION