On appeal from the Superior Court, Chancery Division, Family Part, Middlesex County.
Dreier, Ashbey and Landau. The opinion of the Court was delivered by Ashbey, J.A.D.
For purposes of this opinion, we have consolidated two appeals from the Family Part. Michael Dotsko appeals pro se from a judgment of divorce and incidental Family Part rulings. Defendant Charlene Dotsko separately appeals concerning a reservation of counsel fees in a post-divorce motion.
Michael and Charlene Dotsko were married on October 19, 1980, and separated on June 21, 1986. On June 24, 1986, Michael filed a complaint to "enforce parental rights," concerning the parties' son, then almost five years old. Some 16 motions preceded a five-day trial, and a decision was rendered on March 30, 1989. In the ensuing May 8, 1989 dual judgment of divorce, Charlene was awarded sole legal and residential custody of the child; Michael was awarded visitation. The judge ordered support for the child. He also denied Michael's application for a retroactive reduction of the pendente lite support order; directed Michael to pay Charlene the sum of $43,600 to balance equitable distribution; denied Michael reimbursement for any tax liability incurred in 1986 when the parties filed a joint tax return and ordered Michael to pay $20,000 towards defendant's legal and expert fees and costs.
Respecting the financial issues, the judge found the total available marital estate to be $131,000.*fn1 He described the following as relevant factors.
The plaintiff-husband is almost 39 years old; the defendant-wife is almost 37. He's an accountant and an attorney who worked throughout the marriage. His last job ended July 1988 and was as a tax director for the K Corporation at a salary in excess of $70,000 annually.
The defendant-wife has an associate degree in advertising and communication. She last worked at Montgomery Ward at a salary of approximately $16,000. That was in 1981 and the defendant has not worked since then.
[T]his is not a permanent alimony case, notwithstanding the substantial difference in the parties' education and ability to earn.
It could, however, be a rehabilitative alimony case, but it is more properly a case which requires an unequal distribution of assets to allow the defendant to reestablish herself while re-entering the employment market.
It's this Court's view that based on the testimony presented income must be imputed to both parties and an adjustment from assets must be made in lieu of rehabilitative alimony, primarily because this is one way the Court can be sure of Mrs. Dotsko's receiving same and because there was really no specific testimony regarding what the defendant's rehabilitation would be or what it would cost.
I also note that Mrs. Dotsko has in reality been receiving rehabilitative alimony by way of the pendente lite alimony and child support award and she has not sought to obtain any employment during that time. I will therefore impute an income of approximately $20,000 to Mrs. Dotsko and an income of $50,000 to Mr. Dotsko. Both parties should be able to earn these amounts within the very near future and I'll deal with the unequal distribution of assets in lieu of rehabilitative . . . alimony when I order equitable distribution.
It's clear to me after hearing this case that the plaintiff has not made the requisite effort he should have to have obtained employment after his employment terminated, and I find in fact that he intentionally did not resume employment but held out for the perfect job even though he could have obtained reasonable employment at somewhat less income than he was previously earning.
Anyone who sat through this trial has no problem determining that Mr. Dotsko has chosen to place himself in the economic condition he currently is. Many of the facts in this case fits squarely with cases indicated in the defendant's attorney's brief of Aribe, Bonnano, Robbins, Lynne, (phonetic) [sic]*fn2 and others, all of which refuse to allow a litigant to escape his obligations by his own dilatory actions.
The only money which is not subject to equitable distribution is the $10,000 Mr. Dotsko received from his father and interest of approximately $2,000 thereon, which was placed in a bank account in Mr. Dotsko's own name. The funds already in that account, which totaled approximately $20,000, although gifted to Mr. Dotsko, were first placed in the parties' joint names and therefore subject to equitable distribution.
The Court of course will consider the source of those $20,000-plus as well as the source of all funds acquired during the marriage, as well as the other criteria enumerated in Painter v. Painter and the recent New Jersey Statute.
But considering those, except for the adjustment in lieu of rehabilitative alimony, I find there should be an essentially equal division of assets despite the source of acquisition favoring the plaintiff because of the great disparity in the parties' ability to earn income and their respective educations and degrees.
Of this amount [$171,000 of which $131,000 was available for equitable distribution], I determine that Mrs. Dotsko should receive 60 percent or $102,600 and Mr. Dotsko should receive 40 percent or $68,400. This in essence is a $17,000 non-taxable award to the defendant since the award shall be deemed equitable distribution as opposed to rehabilitative alimony.
[Michael] may then retain the balance of the bank accounts in his possession which should total approximately $57,400 after he makes the payment to [Charlene] of 43,600. . . .
With respect to counsel fees, I don't think it's necessary for me to reiterate all the things I said previously. I've carefully reviewed the affidavits and certifications and the expenses involved. This case was truly a . . . a disgrace, the . . . the type of money that was spent had to be spent, and I find that it was substantially because of unreasonable positions taken by Mr. Dotsko. I also find that his ability to earn is considerably greater than Mrs. Dotsko's, considerably greater, and that he will, although getting less in equitable distribution than she is, will very quickly be able to make up the difference through his much greater earning capacity.
On the other hand, I don't think it would be totally fair for him to have the entire burden of the enormous expenses in this case, and taking all these things into consideration, I'm ordering that he pay counsel fees and expert fees and costs to Mrs. Dotsko in the amount of $20,000. And that's also to be paid immediately out of the funds in his possession. [Emphasis added]
Michael's points on appeal are:
The trial judge erred in deciding that $20,000 of gifts to him and approximately $5,700 interest earned thereon were available for equitable distribution.
The trial judge erred in excluding $4,500 of 1986 mid-year income tax liabilities from the equitable distribution calculation.
The trial judge erred in excluding $3,500 in income tax liabilities he incurred on post-complaint interest income, most of which was awarded to Charlene, from ...