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Horn v. Horn

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 14, 2008

TIMOTHY B. VAN HORN, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
LISA VAN HORN, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-000040-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 31, 2008

Before Judges A.A. Rodríguez, C.S. Fisher and C.L. Miniman.

Defendant Lisa Van Horn (wife) appeals from a number of issues decided adversely to her in the Judgment of Divorce (JOD) relating to identification and distribution of marital assets, retroactive child support and counsel fees. Plaintiff Timothy B. Van Horn (husband) cross-appeals from other portions of the JOD, including the quantum of child support, alimony and medical expenses, counsel fees and certain evidence issues at trial. We affirm in all respects.

I.

The husband is a graduate of the Warren County Technical School, a high-school level vocational school. The parties were married on August 2, 1980, when he was seventeen and she was sixteen, pregnant and still in high school. The wife left high school after the couple married but eventually earned a high school equivalency degree. Neither party attended college. Three children were born of the marriage: Timothy on October 16, 1980; Jessica on August 27, 1982; and Sarah on July 5, 1985.

The husband worked as a welder after graduating from technical school, earning four dollars per hour. He then worked as a laborer and load operator at various sand and gravel quarries. The wife did not initially work after the marriage, caring for the children instead. Eventually, she worked as a solderer and as a retail store clerk, after which she took minor jobs caring for and massaging horses and tending their stalls. She did not earn significant amounts in any of these jobs.

The couple lived in an apartment until after Jessica was born. In October 1983 the couple purchased the marital home in Harmony. The $48,000 purchase price was paid with $20,000 the husband had saved over the years they were living in an apartment and with a $28,000 gift from the wife's father. The home was a three-bedroom, 1335-square-foot ranch that had the original kitchen, windows, and bathroom. Over time the windows leaked, as did the ceiling and other major improvements were necessary but deferred indefinitely.

In 1993 the husband began to operate Van Horn Sand & Gravel, "a little gravel pit," as a side business. He purchased a truck and hired an individual to drive it as he did not yet have a commercial driver's license (CDL). That business eventually folded and the husband sold his truck and equipment and returned to work with a former employer for a number of years.

In 1999 the husband re-established his own trucking business under the same name and obtained a CDL so that he could drive his own truck. He has run that business ever since. The husband's main client was A.B.E. Materials, for which he delivered loads in his truck. However, he was not guaranteed daily work for A.B.E. He has attempted to add other clients without success.

From 1993 to 1998, the couple's adjusted gross income, according to the tax returns, was as follows: $30,584 in 1993; $39,600 in 1994; $53,181 in 1995; $52,812 in 1996; $68,651 in 1997; and $55,979 in 1998. In 1999 when the husband's business began to operate again, the couple's adjusted gross income decreased to $13,361, including $33,534 in wages and numerous business losses. The husband's business had gross revenues of $52,871 and $6650 in depreciation expenses was taken. In 2000 adjusted gross income was $21,615 based on $13,219 in wages, $2309 in interest income, and approximately $5000 in unemployment compensation. The business grossed $79,846 and $22,383 was taken as depreciation expense.

The family took only three or four vacations during the marriage, including two to Florida and one to Virginia. The husband and the wife took no vacations themselves, although they did attend business functions in Virginia and Tennessee. The family ate out at fast-food restaurants occasionally; they did not exchange expensive birthday, Christmas or anniversary gifts; and the children did not attend week-long camps.*fn1 The couple did not go out socially. The family did not save any money, except they owned some bonds, which will be discussed below. By any account, their lifestyle was extremely modest.

The husband filed for divorce on November 21, 2001. The wife then obtained a restraining order and the husband was barred from the marital home from late November until January 2002. The husband claimed at trial that the wife left the marital home and moved in with a male friend. On the other hand, the wife claimed that she did not leave the marital home until September 11, 2002, when the husband changed the locks, a claim supported by the husband's admission that he did not change the locks until then. The parties agreed that Sarah would stay with the husband until after she had graduated from high school in June of 2003. After the wife left the marital home, she lived with a friend in Pennsylvania and stayed there until May 2003.

With such minimal assets and income, with such a modest lifestyle, and with two children emancipated and the third a junior in high school, the divorce should have been easy to resolve expeditiously. Unfortunately for all concerned, the divorce proceedings mushroomed out of control after the wife's father died on December 21, 2002. Although there was no will, the wife was subsequently determined to be the sole beneficiary of the estate and was appointed its administratrix. In May 2003 the wife moved into a home at 158 Ford Rift Road, Belvidere, that had been owned by her father. The final supplemental estate accounting, filed with the court on May 17, 2004, listed assets valued at $9,911,709.78 and taxes due of $3,552,769.00.*fn2

Numerous motions were filed in the divorce proceedings, both before and during the trial, which began in May 2004, by which time all three children had been emancipated. The trial lasted for an astounding forty days and concluded in April 2005. Most importantly, in November 2004 the Family Part judge presiding over the trial granted the wife's motion to dismiss the husband's claim for equitable distribution of the property she inherited from her father after the divorce complaint was filed.*fn3 The resolution of that issue did not help resolve the case and the trial continued. The evidence at trial is summarized below with respect to each of the issues on appeal.

The parties testified to the marital assets. The home had been assessed by Harmony Township in October 2002 at a value of $140,900. An appraisal done at the husband's request valued the home at $142,000 as of February 8, 2003. The wife's expert testified that he had appraised the home at $168,000 as of February 19, 2004. However, the expert admitted that he did not reduce the value of the house based on its state of disrepair, even though he conceded it required several repairs, including a new roof, furnace, fuse box and septic system.

The husband's October 28, 2003, CIS listed assets as the jointly owned marital residence, a checking account in his name with a $119 balance, and four vehicles, including a 2002 Monte Carlo valued at $22,000 and a 1993 Suburban valued at $5000. The other two vehicles had no value. The husband also listed approximately $8000 in stocks and bonds in his name. He included his business assets, which consisted of his trucks and approximately $20,000 in liabilities. The wife's February 19, 2004, CIS listed the marital home as a joint asset, and, while noting that she acquired assets through an inheritance from her father, did not list the value of them.

The couple's acquisition of certain assets was disputed. The husband claimed at trial that in September 1994 the wife cashed two checks on the joint checking account totaling slightly more than $11,000. He claimed that he was unaware that these checks were written until much later. He asserted that the wife gave that money to her father in 1997 in exchange for a property located at 36 Halfway House Road in Broadway. On cross-examination, the husband conceded that he could not remember if he gave his wife the authority to withdraw those funds from the joint account.

The wife admitted to cashing the checks, but claimed that she did not give them to her father in exchange for the Broadway property. She also claimed that her husband was aware that she had cashed these two checks. The wife further claimed that her father gave her the Broadway property in 1997. She did not move in 1997, despite having filed a divorce complaint that year (which was later withdrawn), because the house was in deplorable condition. Since she could not afford the taxes, she gave the property back to her father. Although the documentation regarding this transfer indicates that the wife bought the home for $10,000, then sold it back to her father for that same amount, the wife claimed that no money passed hands during either transaction. On June 27, 2000, the house was sold by the wife's father for approximately $140,000. The wife testified that her father did not give any of the sale proceeds to her.

The husband claimed that the wife's father took $50,000 from the proceeds of that sale and gave it to the wife for the purchase of an Agway bond. He claimed that the $50,000 was essentially the product of the wife's unauthorized withdrawal of $11,000 from the family's joint checking account and asserted that he was entitled to equitable distribution of the bond.

The wife claimed, however, that the $50,000 was a gift from her father unrelated to the Broadway property transaction and that he specifically instructed her to invest it in the Agway bond. The wife purchased the bond in December 2000; it earned interest of $4459 in 2001 and $3656 in 2002, after which Agway declared bankruptcy and the bond became essentially worthless except for a partial distribution from the trustee in bankruptcy. The bond was originally placed in the names of the wife and her son Timothy because if she died, Timothy, and not her husband, would receive the proceeds. Nevertheless, the wife conceded that she and her father executed a promissory note indicating that she borrowed the $50,000 from her father. She claimed that she made no payment on the note and that the note was simply devised to ensure that, in the event of a divorce, the husband could not claim the bond in equitable distribution.

With respect to retroactive child support and the quantum of the support, the husband claimed that during the period after the wife left until Sarah graduated, he provided all of her financial support. The wife, he claimed, contributed nothing towards their daughter's needs. Although he had not previously sought child support, he did so at trial. The husband conceded that he did not know the amount he spent on Sarah's behalf during this time frame. He also conceded that the wife paid some of the utility bills at the marital home through August 2002, even though she had allegedly left earlier that year.

The wife, on the other hand, claimed that, although she was not living in the marital home after September 2002, she still contributed towards Sarah's financial needs.

The parties also testified with respect to the husband's claim for alimony. The wife stopped working in May 2003 after she began to administer her father's estate. She took a $25,000 advance from the estate and then, in October and November 2003, withdrew $1000 per week. Starting in December 2003 she began taking a $500 or $600 weekly salary for her duties administering the estate. Disbursements to the wife from the estate in 2003 totaled $63,665. The estate also paid the wife's housing costs, including most of her utilities. She also paid $23,757 in counsel fees from the estate for the period from October 1 through December 31, 2003, and she paid $11,000 to a prior attorney from the estate. As a result of her inheritance, the wife stipulated she had the ability to pay any alimony, support or attorney fees required of her.

From 2001 through 2003 the parties filed separate tax returns. In 2001 the husband claimed adjusted gross income of only $6697, largely through business income, even though his business had gross revenues of $102,451. Depreciation expenses were $31,645. In 2002 the husband's adjusted gross income was $918, including $1081 in business income. Nevertheless, his business generated $84,289 in revenues and recognized $22,345 in depreciation expenses. In 2003 the husband's adjusted gross income was $980, based on business income of $1097. Yet, his business generated $72,156 in gross revenues and took $23,641 in depreciation expenses. With respect to business income, the husband claimed that the costs for fuel, tires, oil, and insurance for his business had increased since September 11, 2001. On the other hand, the wife claimed that the husband performed additional "side jobs" delivering topsoil to nurseries in addition to running his business that were not reflected in his income.

The wife listed $17,748 in adjusted gross income on her 2002 income tax return. Her 2003 return reflected the substantial interest, salary and trust income she received after her father died, giving her an adjusted gross income of $63,974.

The husband's October 28, 2003, CIS listed $1258 in monthly shelter expenses, $959 in monthly transportation costs, and $1694 in personal expenses. Total monthly expenses were $3911. In her February 19, 2004, CIS, the wife listed $819 in monthly shelter expenses, $200 in transportation expenses, and $1944 in personal expenses. Total monthly expenses were $2963.

At trial, the husband sought alimony and the creation of a medical trust funded by the wife that would pay his past and future medical expenses. The husband had medical insurance for himself and the family while he was employed by others but, once he started his own business again in 1999, he testified that he could not afford to pay for it. The wife claimed that since the husband was not sick during the marriage, he simply had no interest in obtaining medical insurance for himself. Therefore, in 2000 the wife obtained medical insurance for the unemancipated children through the State's Kid Care Program. Thus, in 2000 and 2001 only the children were medically insured. In April 2002 the wife obtained coverage for herself and the children through the expanded State Family Care Program. The wife conceded that, when she applied for Family Care coverage, she was living in Pennsylvania. She did not return to New Jersey until 2003. Coverage ended in 2003 when the wife inherited her father's estate. The wife and Sarah were covered at trial by private insurance for which the wife paid a $3000 quarterly premium.

The husband claimed that he was unaware that State-sponsored insurance could cover him as well as his children and stated that he would have wanted coverage had he known of its availability. The wife responded that, when she signed up for Family Care, she was told by state workers not to obtain coverage for the husband since they were divorcing. Moreover, she did not include the husband on the Family Care application because they were not getting along.

In November 2003 the husband was hospitalized and a stent was inserted to remedy his clogged arteries. As of trial he suffered from high blood pressure, high cholesterol and diabetes. He claimed that he had an outstanding hospital bill of $49,804 plus other bills related to his hospitalization and that he had borrowed money from his mother to pay part of the bills. He also testified about a series of medications he takes on a regular basis since this hospitalization, at significant expense given his lack of insurance.

During trial on August 23, 2004, the husband was hospitalized again overnight after experiencing some numbness. He was much weaker after that episode than after his first hospitalization, making it harder for him to work. He testified that he incurred even more medical bills as a result. At trial, he still suffered from numbness and swelling in his hands.

II.

In a lengthy and carefully crafted, written opinion, Judge Amy O'Connor made findings regarding equitable distribution of the marital property, awarding the husband all of the marital assets based on the wife's inheritance. The judge considered the relevant statutory factors, including her identification of the assets subject to distribution. The wife does not challenge any of the court's findings regarding these factors or the identification or valuation of the assets except with respect to the Agway bond. Thus, we need not describe the court's findings with respect to these factors.

The judge found that both parties had made substantial contributions to the "marital partnership" and that "[t]he parties contributed to [that] partnership equally and if it were not for one other factor, the court would be dividing the marital assets equally." The judge discussed the substantial inheritance the wife had received and found that the "total value of the marital assets is a very small fraction of what [the wife] is now worth. [The wife] is waiving her interest in some of the marital assets. The total value of those assets [to which] she is not waiving an interest . . . is $229,949." She noted that one-half of that amount would have been .011% of the total amount the wife inherited.

The court concluded that

[t]he equitable distribution statute permits the court to consider the economic circumstances of each party at the time the division of the assets become[s] effective. The court finds that, given the facts of this particular case, equity compels that all the marital assets be awarded to . . . husband.

By making this award the court is not saying that the wife did not make a substantial contribution to the marital partnership.

Her contribution to the marital partnership is equivalent to that which the husband contributed. The equitable distribution award is being made strictly in light of the fact that the marital assets are so small in value in comparison to those assets which the wife now possesses due to her inheritance. The wife's new[-]found wealth vastly exceeds that which she is seeking by way of distribution. Given the magnitude of her inheritance, she does not need to get a share of the marital assets. As for the husband, getting the marital assets, especially the marital home (the most valuable marital asset), will contribute toward his ability to maintain the marital standard of living. Therefore, all of the marital assets shall be awarded to the husband.

The wife specifically disputes the inclusion of the Agway bonds as a marital asset. The judge found that the $50,000 was a loan from the father, rather than a gift, based on the promissory note and the wife's lack of credibility in explaining its existence. The judge found that the "$50,000 loan proceeds were transferred to the wife during the marriage and the wife earned monies from such proceeds. Therefore, the proceeds and any interest earned from this are subject to equitable distribution." The judge also found that the wife received $14,869.84 from the Agway bond following the bankruptcy, which she awarded to the husband as part of the overall distribution. The judge further found that the loan from the wife's father was a joint debt owed to the father's estate. However, the wife as administratrix never sought repayment of this loan during trial. Thus, the judge made no finding "about how much each party should contribute toward the repayment of such debt."

The judge also granted the husband's request for retroactive child support in the amount of $7140 for the period after the wife left the marital home until Sarah graduated from high school, i.e., from September 2002 through July 5, 2003. The judge found that the wife left the marital home in September 2002 and rejected the husband's claim that she left earlier that year. In reaching that conclusion, the judge found the wife to be a more credible witness than the husband. The court also relied on the fact that the wife paid utility bills at the marital home through August 2002 and that the husband did not change the locks until September 2002, notwithstanding his claim that the wife had stolen from him earlier.

The judge then noted that the husband sought child support on Sarah's behalf for the period between the date the wife left the marital home and the date Sarah left. The court rejected the wife's claim that the husband could not obtain child support "retroactively," imputed income to the husband of $39,090, and found the wife's net earnings were $20,056 in 2002 and $54,412 in 2003. Relying on the child support guidelines, the judge concluded that the wife owed the husband $90 per week from September 11, 2002, when the wife left the marital home, through December 31, 2002 ($1427), and $215 per week from January 1, 2003, to July 5, 2003, when Sarah left ($5713). The judge awarded a total of $7140 in child support.

With respect to alimony, the judge considered the statutory factors relevant to the husband's claim, including the standard of living enjoyed during the marriage. Because the wife stipulated to her ability to pay any alimony that the judge might order, the judge considered only the relevant statutory factors and the husband's needs and ability to contribute thereto. Several of the statutory factors upon which the judge made findings are not disputed now, were not contested at trial, and therefore will not be addressed at length here. Those factors include the duration of the marriage, the fact that the husband was not absent from the job market, the emancipation of the children, the lack of a need for additional education or training, the husband's history as the primary wage earner during the marriage, the equitable distribution of $261,058 in marital assets awarded to the husband, the substantial assets available to the wife from her inheritance, and relevant tax issues.

As to the husband's health, the judge described the husband's hospitalizations and the medications he was taking as of trial, but found that "[t]here is not any evidence that . . . [the] husband has any affliction that hinders his ability to work." As to the standard of living, the judge noted the relatively modest lifestyle enjoyed during the marriage, including the fact that the marital home needed substantial renovations.

The judge then addressed the husband's October 28, 2003, CIS by reducing or removing several of his claimed expenses, while increasing one expense. Specifically, the judge removed the husband's claimed monthly expense of $350 for house repairs, given the lack of any evidence that house maintenance had been part of the marital standard. Specifically, "the parties did not make it a practice to spend their income on the home and their standard was to allow the property to deteriorate." The judge also removed the husband's claimed expense of $185 per month for heating oil at the home since the husband conceded during trial that his business paid for that expense. The judge removed a $10 per month claimed expense for lawn care, and a $125 a month expense for equipment/furnishings, since the couple did not purchase new furniture during the marriage.

The judge reduced the husband's expenses for car registration, license, and maintenance from $120 per month to $50, given the evidence and the court's experience in such matters. The judge also reduced the husband's claimed $400 per month expense for restaurants to $20 per month, given the husband's inconsistent testimony in this respect and the wife's claim that the entire family spent $100 per month eating out.

However, the judge increased the husband's prescription costs from $90 per month to $635 given his current medical condition, which caused him to incur substantial prescription costs after the CIS was filed. Because the husband did not pay for any medical insurance during the marriage, and since he purchased the Monte Carlo instead of using those funds for insurance, the judge removed the husband's claimed $400 per month medical insurance expense. In this latter respect, the judge found that the husband purchased a new Monte Carlo in 2002 for approximately $28,000 at the same time that his tax return indicated annual income that year of only $23,319. This purchase was particularly "unusual" in the judge's view given the husband's claim that his business deteriorated after September 11, 2001.

The judge then addressed the husband's need, earning capacity and ability to pay. As to need, the judge concluded that the husband's total monthly expenses, given the CIS adjustments described above, were $2941 per month. The judge found that the husband "would have to net $35,292 per year" to maintain that budget.

The judge found that the husband was capable of earning sufficient funds to meet that budget, given his CDL, his $52,013 income in 1996, and more recently his net earnings in 2001 of $39,230. While the husband earned substantially less in 2002 and 2003, his net income plus depreciation totaled approximately $24,000 each year.

Moreover, the judge concluded that the husband did not report all of his income. She based that finding on the husband's purchase of the Monte Carlo as noted above, the wife's testimony that the husband earned unreported income through "side-deals," and the husband's purchase of a Harley Davidson in 2003. In that latter respect, the judge found the husband and his brother Eric not credible and concluded that the husband bought the motorcycle for himself.

Taking into consideration all of the foregoing, the court found the husband was not entitled to alimony because he could "maintain the standard of living enjoyed during the marriage without financial support from the wife."

In a separate letter opinion, the judge denied each party's request for counsel fees. As to the wife, the judge relied on Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999), in which we held that the party seeking attorney fees "must be in financial need," and that the good or bad faith of a party is not relevant unless need and the other party's ability to pay have been established. Because the wife was not in financial need, the judge denied her request for fees.

In denying the husband's request for fees, the judge considered the factors set forth at R.P.C. 1.5 with respect to the reasonableness of the fees incurred by the husband, as well as those identified at Rule 5:3-5(c). The judge concluded that, although the issues at trial were not complex, the husband made certain claims that were clearly meritless and resulted in inflated counsel fees. The judge then reviewed the fee statements from husband's counsel as required by Chestone, supra, 322 N.J. Super. at 257-58, and concluded that $59,503.25 of the fees to the husband were unreasonable, i.e., too much time was spent on a particular task or in supervising the work of others. Thus, the judge found that the husband owed $165,494 in reasonable fees, that the wife could afford to pay those fees and that the husband lacked the ability to pay them.

However, the judge also separately found that the husband proceeded "in bad faith on many issues," including: the husband's request for alimony; his attempt to obtain reimbursement for money the wife allegedly stole from the family business; his request for creation of a medical trust fund; and the "Broadway house" issue. The judge also separately rejected the husband's claim for equitable distribution of the amounts the wife received after her father died, since "the law is clear" that such assets are immune from distribution.

After removing the fees associated with those "bad faith" claims, the judge found that the husband had incurred reasonable fees, in good faith, of $33,098.80. She concluded that the husband could pay that amount, and therefore denied his fee request. This appeal followed.

III.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); accord Overbay v. Overbay, 376 N.J. Super. 99, 106 (App. Div. 2005). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

Such deference is "especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapon to J.W.D., 149 N.J. 108, 117 (1997)). Thus, a trial court's findings are entitled to "great deference," and should not be disturbed unless they constitute a mistaken exercise of discretion or are clearly erroneous. Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 368 (1999); Torres v. Schripps, 342 N.J. Super. 419, 431 (App. Div. 2001).

Our review of the record in the light of the oral and written arguments advanced by the parties discloses that there was adequate, substantial, credible evidence in the record to support the findings made by the trial judge and that the parties' contentions are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A), (E). We affirm substantially for the reasons articulated by Judge O'Connor in her exhaustive written opinions delivered on June 30, 2005, and December 9, 2005. We add the following.

N.J.S.A. 2A:34-23(h) authorizes Family Part judges to equitably distribute "the property, both real and personal, which was legally and beneficially acquired . . . during the marriage." N.J.S.A. 2A:34-23.1 requires the court to consider various statutory factors in making an equitable distribution of property. The primary purpose of the equitable-distribution statute "is not to compensate for changes in the parties' fortunes after they have separated, but to achieve a distribution of what the parties 'lawfully and beneficially acquired' while they were together." Kikkert v. Kikkert, 88 N.J. 4, 9 (1981) (Pashman, J., concurring). A Family Part judge must: (1) decide which property is eligible for distribution; (2) determine its value; and (3) decide how to allocate the property. Rothman v. Rothman, 65 N.J. 219, 232 (1974); DeVane v. DeVane, 260 N.J. Super. 501, 503-04 (Ch. Div. 1992), aff'd, 280 N.J. Super. 488 (App. Div. 1995).

Also, a Family Part judge is vested with broad discretion regarding the division of marital assets. Wadlow v. Wadlow, 200 N.J. Super. 372, 377 (App. Div. 1985). An award will be affirmed "as long as the trial court could reasonably have reached its result from the evidence presented, and the award is not distorted by legal or factual mistake." La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). The party challenging the judgment of divorce bears the burden of demonstrating an abuse of discretion. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978). The mere fact that a spouse did not receive an even distribution of the assets is no basis to disturb the court's judgment. Rothman, supra, 65 N.J. at 232 n. 6; DeVane, supra, 280 N.J. Super. at 493.

The wife contends that Judge O'Connor abused her discretion when she awarded all of the marital assets to the husband. In particular, she argues that the husband's bad faith litigation should have precluded such an award. However, the husband was penalized for that behavior when the judge denied his very considerable application for counsel fees. Instead, N.J.S.A. 2A:34-23.1(f) required the judge to consider "the economic circumstances of each party at the time the division of property becomes effective," not just the good or bad faith conduct of the parties. The judge did so and awarded the husband about $260,000 in marital assets. Equal division of marital assets is not required. The wife has an estate that she concedes is worth over $6,300,000 after taxes. Thus the husband's net worth after the divorce is only four percent of that of the wife and he alone is responsible to his attorney for counsel fees, which may significantly reduce his assets. We find no inequity or abuse of discretion in this division of assets.

An award of alimony is authorized by N.J.S.A. 2A:34-23 and is governed by the factors enumerated at N.J.S.A. 2A:34-23(b).

In Crews v. Crews, 164 N.J. 11, 16 (2000), the Court reaffirmed the principle of Lepis v. Lepis, 83 N.J. 139 (1980), and held that "the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." The Crews Court further reaffirmed the three-factor "examination" established in Lepis, supra, 83 N.J. at 152. Specifically, a court must consider the dependent spouse's needs, that spouse's ability to contribute towards those needs, and the supporting spouse's ability to maintain the other spouse in the former standard of living. Crews, supra, 164 N.J. at 24; see also Gugliemo v. Gugliemo, 253 N.J. Super. 531, 544 (App. Div. 1992).

The husband here was not the dependent spouse. Judge O'Connor based her decision on ample evidence in the record, which demonstrates that the husband can earn enough to meet his needs in a style characteristic of the marital standard of living. He is not entitled to more.

We also note that the husband was not ill before the complaint was filed and had never expressed an interest in obtaining medical insurance during the marriage. Thus, all of the expenses and debt incurred in dealing with his post-complaint medical conditions were not part of the marital standard of living nor are they the wife's responsibility. DeVane, supra, 280 N.J. Super. at 494 (medical expenses incurred after complaint filing date are not marital debt). This case is distinguishable from Jersey Shore Medical Center - Fitkin Hospital v. Estate of Baum, 84 N.J. 137, 140-41 (1980), cited by the husband. There, the husband incurred substantial expenses during the marriage, not after the complaint for divorce was filed. In fact, the husband here made substantial automobile and motorcycle purchases, eschewing medical insurance. Thus, he had the means to purchase health insurance but chose not to do so. It becomes clear that medical insurance was not part of the marital standard of living, and Judge O'Connor properly refused to require the wife to create a medical trust on the husband's behalf.

Affirmed.


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