On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-209-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Seltzer and C.L. Miniman.
Defendant, Michael A. Hyduk, appeals from various provisions of a May 11, 2005, final judgment of divorce entered after a twenty-eight day bench trial. We affirm in part and reverse and remand in part.
Plaintiff, Dora G. Hyduk, and defendant were married on October 6, 1990, and are the parents of one child, Thomas, who was born on July 19, 1994. They purchased a home in Belle Mead in 1996 at a cost of $479,000, of which $150,000 was paid by proceeds of a mortgage and the balance was paid from savings acquired by plaintiff both before and during the marriage. Defendant was employed at the time of the marriage, but approximately one month later he lost his job and did not work thereafter. The judge determined that while the parties should share joint legal custody of Thomas, plaintiff should be designated parent of primary residence. Defendant was then awarded parenting time in accordance with the following schedule:
Alternate weekends beginning after school (or summer camp) on Friday until after dinner at 8:00 P.M. on Sunday. One day each school week beginning after school until after dinner at 8:00 P.M. or, in the summer, one day each week after camp until after dinner at 8:00 P.M. Equal sharing of each school year recesses such as Winter Recess and Spring Recess. Two full weeks during the summer (which need not be consecutive weeks) during which time each party shall be entitled to reasonable telephone contact with the minor child on a daily basis.
The judge determined, on evidence which we shall discuss in greater detail in the body of this opinion, that (a) plaintiff's "Treasury Direct Account," (b) her Merrill Lynch account, and (c) $51,000 of her 2002 bonus that she used to create an educational account for Thomas were exempt from equitable distribution but that defendant's life insurance policy was not.
The judge also declined to distribute to defendant any portion of (a) a joint 2003 Federal Income Tax refund that plaintiff received after the filing of the complaint and used to pay real estate taxes on the marital residence in which the parties continued to reside; (b) $7500 of marital money used by plaintiff to retain her attorney; and (c) the 2003 bonus earned by plaintiff partly before the filing of the complaint put paid thereafter.
The judge allocated sixty-five percent of the value of the marital home to plaintiff and thirty-five percent to defendant. Sixty percent of the remaining assets subject to distribution were allocated to plaintiff and forty percent to defendant. Defendant was awarded "permanent alimony of $200 per week and limited term alimony of $496 per week for a period of 6 years." The parties were required to bear their own litigation costs.
On appeal, defendant argues
I. [THE JUDGE] FAILED TO FOLLOW CONTROLLING LEGAL PRINCIPLES AND ABUSED HIS DISCRETION WHEN RELEGATING MR. HYDUK TO AN EVERY OTHER WEEKEND PARENT.*fn1
II. [THE JUDGE] FAILED TO FOLLOW CONTROLLING LEGAL PRINCIPLES AND ABUSED HIS DISCRETION WHEN DETERMINING EQUITABLE DISTRIBUTION.
A. [The Judge] Erred When Determining Which Assets Were Exempt from Equitable Distribution.
Mr. Hyduk's Pre-Marital Life Insurance Policy Plaintiff's Treasury Direct Account Plaintiff's Merrill Lynch Account #85E15760 $51,000 of 2002 Bonus Monies deposited in Thomas' 529 account
B. [The Judge] Erred When Valuing Two of the Parties' Assets for Purposes of Equitable Distribution.
2003 Federal Income Tax Refund Plaintiff's $7,500 Counsel Fee Retainer and 2003 Bonus Monies
C. [The Judge] erred when allocating the parties' assets.
1. [The Judge] Failed to Follow Controlling Legal Principles, Abused His Discretion and Rendered a Determination Not Based upon Substantial Credible Evidence When He Determined That Plaintiff Had Successfully Rebutted the Presumption That Mr. Hyduk Made a Substantial Financial or Non-financial Contribution to the Acquisition of Assets During the Marriage.
2. The Entire Allocation of Assets must Be Reversed and Remanded. Division of the Belle Mead Property ...