On appeal from Superior Court of New Jersey Chancery Division, Family Part, Warren County, FM-21-117-02.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2005
Before Judges Skillman, Payne and Francis.
In this matrimonial matter, the husband, Glenn S. Robertson, appeals from certain provisions of a dual judgment of divorce entered by a judge of the Family Part following trial.
The Robertsons were married on April 22, 1989 and separated on July 31, 2001. The husband's complaint was filed on September 20, 2001, and a dual final judgment of divorce was entered on November 5, 2003 that memorialized the terms of a written opinion issued on August 30, 2003.*fn1
At the time of trial each spouse, born in 1964, was thirty-nine years of age. The parties have three children, Camille, age eleven at the commencement of trial, Nolan, age eight and Luke, age five. Joint custody of the children was awarded, with the mother, Camille M. Robertson, having primary residential custody in the marital home, which in accordance with the court's order, she is entitled to keep until the youngest child graduates from high school.
On appeal, the husband challenges (1) the equitable distribution of stock options awarded to him as a signing and retention bonus by his present employer on September 17, 2001 -- three days before the complaint for divorce was filed; (2) the award of permanent alimony to the wife; and (3) the requirement that he pay the full remaining $25,000 to $30,000 balance of a home equity loan with no credit for the payment at the time that the house is sold. We affirm in part and reverse in part.
We first address the issue of the equitable distribution of stock options given in connection with the husband's employment with USA Interactive, which commenced on September 17, 2001, three days before the complaint for divorce was filed. The Family Part judge ordered that the wife be awarded a one-half interest in any stock options granted to the husband before the filing of the complaint. The options at issue, granted at the start of the employment, contained a provision that they would vest in one-fourth increments each year over the next four years on the anniversary date of employment.
On appeal, the husband contends that the wife should have no interest in these options, which were given after separation had occurred and within a week before the divorce complaint was filed, and which vested, at the earliest, twelve months later.*fn2 The wife concedes that the husband's stock options "were given to him as an incentive for him to accept the position at USA Interactive." However, she contends that he would not have qualified for the job but for her support during the marriage. She also urges that a bright-line rule be employed to determine whether these options are exempt from distribution, and contends that since they were granted before the complaint for divorce was filed, she is entitled to share in them. She also argues that the husband waived his right to claim immunity, since he did not present that argument at trial, but instead argued that the options lacked value.
We disagree with the wife's position. We first find that the arguments presented on appeal have not been waived. The husband has consistently maintained, not only that his vested options lacked value, but also that the stock options did not constitute a marital asset.
We also decline to impose a bright-line rule to a consideration of the distribution of the options as an asset of the marriage. In Painter v. Painter, 65 N.J. 196, 218 (1974), the Supreme Court stated "that for purposes of determining what property will be eligible for distribution the period of acquisition should be deemed to terminate the day the [divorce] complaint is filed." Although ...