On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-000329-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner, Seltzer and C.L. Miniman.
Plaintiff appeals from several provisions of an April 13, 2005, final judgment of divorce that resolved financial issues and from a July 11, 2005, order that denied reconsideration. We affirm in part and reverse in part.
We take the following facts, which are essentially uncontested, from the four-day bench trial and the judge's undated thirty-one page written opinion that was apparently issued on September 8, 2004. Plaintiff and defendant met in 1981. They began cohabiting in 1990 and are the parents of one child, Meredith, who was born on March 2, 1993. They were married on March 1, 1997. Meredith suffers from cerebral palsy and, as the result of a medical malpractice action, is the beneficiary of a trust, administered by the parties, with a value of approximately $1,200,000. The parties did not dispute that plaintiff should remain the parent of primary residence for Meredith or that defendant would be responsible for payment of child support.
In 2003, plaintiff earned "in excess of $80,000." In computing her net income for child support purposes, the judge reduced her "weekly caregiver expense of $450 . . . to $438 per week" to account for the tax benefit available as the result of the payment for her child's caregiver. The reduction had the effect of increasing her net income, albeit minimally, and was made despite the fact that the parties did not claim the tax deduction available to them.
Defendant, although unemployed for most of 2003, obtained employment in 2004, earning approximately $150,000. Given the actual salary of defendant, although post-trial, the judge declined to consider imputing income to defendant and used the gross income of $150,000 in fixing his child support obligation. The judge computed "[t]he net combined incomes [of] $1094 for plaintiff and $1905 for defendant [to be] a net total of $2999." The judge recognized that the child support guidelines did not apply when combined weekly net incomes exceeded $2900.*fn1
Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, paragraph 20b at 2426; Appendix IX-G at 2498 (2004). Nevertheless, he concluded that the excess of $99 did not justify a deviation from the guideline amount and, at oral argument, plaintiff conceded that child support should be computed in accordance with the guidelines. In addition to the support computed, and in accordance with the guidelines, the judge ordered defendant to pay sixty-four percent of the marginal cost of insuring Meredith on plaintiff's health plan and other unreimbursed expenses.
The judge then turned to the equitable distribution issues. He noted that when the parties began to cohabit, "[d]efendant had a home in Washington Township and plaintiff in Hazlet. . . . Each party carried his/her own carrying costs until defendant rented his Washington Township home and resided full-time in Hazlet." The Washington Township home was sold after the marriage in 1998 for a gross price of $416,000 and defendant received net proceeds of between $200,000 and $250,000. Those funds were placed in a Fidelity Investment Account titled solely in his name. In August 2000, defendant purchased a house at 17 Redfern Court, Lincroft, New Jersey, in which the parties would reside until the divorce. He paid $725,000 for the Lincroft home, of which $325,000 was paid in cash. That cash payment came from the Fidelity Investment Account. Pursuant to a pendente lite order, defendant sold the Lincroft home for $960,000 and placed the net proceeds of $551,000 into his Fidelity Investment account.
Sharyn Maggio, a certified public accountant, was retained jointly to analyze the banking and investment accounts of both parties and to allocate the pre-marital and marital assets. The judge reported Ms. Maggio's conclusions respecting the Fidelity Investment Account: "[F]rom marriage to complaint, [defendant's] earnings in excess of $420,000 were deposited and same were post-marital; . . . the rentals and the house proceeds were premarital. Ms. Maggio concluded it was impossible to know what dollar paid for what."
When plaintiff sold her Hazlet home, she received approximately $62,000, which was given to defendant to pay off a margin account. The money was deposited by him into the Fidelity account and Maggio confirmed this disposition of the funds. Maggio, as the judge recognized, concluded that "plaintiff's transaction to him for the margin account was post-marital." The parties disagreed with respect to the nature of the transaction. The judge noted that, "it is clear that plaintiff wishes to treat the transfers as a loan while defendant seeks to treat the transfers as a gift or transfer of monies between spouses during marriage to [the] expenses of the marriage."
On this testimony, the judge concluded that the Fidelity account was a commingled account and subject to equitable distribution. He allocated thirty-five percent of the account to plaintiff. He reached that allocation from the corpus based on the factors in N.J.S.A. 2A:34-23.1. The cohabitation and marriage were of a modest duration; plaintiff is younger than defendant by fourteen years and can recapitalize longer than defendant; although defendant brought more property to the marriage than plaintiff, the swing up and down of defendant's Fidelity Investment portfolio was influenced by the market factors from 2000-2002 when untold fortunes were lost by shareholders in the bear market and technology market's collapse. The parties had no written agreement as to property distribution. Presently, both parties are employed and defendant is earning $150,000 and plaintiff in excess of $80,000. The court does not perceive that the earning capacity of either party will change dramatically in the foreseeable future. Neither made contributions to the other[']s education, training, or earning power.
The distribution, however, did not specifically deal with plaintiff's claims to the $62,000 that had been given to defendant and the judge did not distribute the proceeds of the marital home in Lincroft.
The last distribution issue concerned the value of a van which had been purchased by defendant with funds from his Fidelity account and placed in plaintiff's name. Plaintiff testified that the van had been damaged and suggested its value should be fixed at $6000. The judge, however, accepted defendant's claim that the van had a value of slightly more than $8000. We note ...