On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1470-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 18, 2008
Before Judges Graves and Grall.
Defendant Nicholas A. Mattera appeals and plaintiff Catherine Romania cross-appeals from a dual final judgment of divorce. Mattera challenges the trial court's determinations on custody, alimony, child support and equitable distribution and alleges bias on the part of the judge that infects the entire judgment. Romania claims error related to alimony, equitable distribution, counsel fees, denial of her request for prejudgment interest on her share of Mattera's business and dismissal of her tort claim seeking damages for alleged malicious prosecution.
The protracted litigation that lead to this appeal commenced seventeen years after the marriage and when the parties' five children were age fourteen, eleven, nine, seven and four. When the judgment that is the subject of this appeal was entered the children were age twenty-one, eighteen, sixteen, fifteen and eleven. Because the nature of that litigation is relevant to several issues raised on appeal, it is set forth in detail.
Romania filed the complaint for divorce on May 10, 1999, two days after she filed a complaint pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Also on May 10, Mattera filed a complaint alleging that Romania committed an act of domestic violence against him. The parties agreed to dismiss their respective domestic violence complaints and submitted a consent order requiring Mattera to leave the marital residence, assigning primary residential custody of the children to Romania, specifying Mattera's parenting time and designating a psychiatrist and a psychologist to recommend a custodial arrangement that would be in the best interest of their five children. In July 1999, Mattera answered Romania's complaint for divorce and filed a counterclaim for divorce. On July 23, 1999, Romania moved for a change of venue, defendant objected and the application was denied.
On July 26, 2000, Mattera filed three complaints charging Romania with the disorderly persons offense of interference with custody, N.J.S.A. 2C:13-4a(4). After those complaints were dismissed, Romania amended her divorce complaint to include a count for malicious prosecution.
Trial on custody and parenting time commenced on September 24, 2001. At the outset of that proceeding, the parties amended their respective pleadings to allege grounds for divorce based on eighteen months' separation, N.J.S.A. 2A:34-2d. They were both granted a divorce on that ground, and trial on custody commenced. Before that proceeding concluded, the trial court granted the parties' request to refer the financial issues in the case to mediation and, on January 7, 2002, entered a dual judgment of divorce.
An amended judgment fixing custody and parenting time was entered on April 12, 2002. Romania appealed, and this court affirmed the trial court's order, which included a provision permitting review of the arrangement after one year "without need to demonstrate a change of circumstances," which was well-underway when the appeal was decided. Romania v. Mattera, No. A-5026-01 (App. Div. Feb. 18, 2004) (slip op. at 17, 19).
The review of custody was undertaken on the basis of orders to show cause filed by both parties. The trial court directed updated evaluations by the psychiatrist and psychologist previously selected by the parties. Mattera filed a motion seeking recusal of the judge, which the judge denied. This court granted defendant's motion for leave to appeal and summarily affirmed the judge's denial.
In September and October 2003, the parties filed separate complaints charging each other with offenses - harassment, N.J.S.A. 2C:33-4, and interference with custody, N.J.S.A. 2C:13-4a(4). Those complaints were consolidated with open issues in the divorce proceedings by order entered in December 2003. Parenting time for one of the children was modified pending the hearing to review custody on Romania's application filed by way of order to show cause.
The custody hearing commenced on October 4, 2004. During the course of that hearing, the Division of Youth and Family Services investigated an incident involving Romania and one of the children.
The trial on the financial issues ancillary to the divorce commenced on July 25, 2005 and was scheduled to resume on September 13, 2005, but was postponed because Mattera filed a petition for bankruptcy on September 9, 2005. The bankruptcy court denied Romania's motion to dismiss that petition on February 6, 2006, but granted relief from the automatic stay and on March 21, 2006 entered an order expressly authorizing the trial court to determine all issues including equitable distribution.
Trial resumed on April 24, 2006. Testimony was taken on eight days, and the judge issued a written decision on September 12, 2006. Mattera raised objections to and requested clarification of the opinion, and the amended final judgment from which this appeal is taken was entered on December 22, 2006.
The following facts are pertinent to alimony and child support. Romania and Mattera married on October 25, 1981. Mattera was twenty-six years old, and Romania was twenty-four. They were both licensed to practice law.
Romania was working as an associate in the trusts and estates department of a New Jersey law firm and earning approximately $30,000 per year. She returned to the firm after the birth of the parties' first child and, while working, completed her studies and received an LLM in taxation. She did not return to work after the parties' third child was born. Although she planned to work part-time, the firm decided against part-time employment. She completed work she had undertaken for particular clients from the office of the law firm that Mattera established, after working for several law firms.
Romania became a partner in Mattera's firm. As she explained it, the arrangement was established so that she could pay employment taxes on a minimal salary, but she was not really working. Mostly from home, she did work her husband asked her to do and, from time-to-time, wrote wills. She resigned from the firm in 1996, and the partnership was dissolved in 1997. Romania took a part-time job with a law firm in 2002, where she worked about ten hours per week at $40 per hour. By July 25, 2005, she was working about eighteen hours a week for $42.50 an hour and, for matters she brought to the firm, receiving ten percent, presumably of the firm's fee, for real-estate closings and twenty percent on other matters. In July 2005, Romania did not view full-time employment as an option given the children's ages and need for supervision and the absences that would be required by her participation in this litigation and involvement with the children.
As noted above, Mattera worked for several firms before starting his own practice. Mattera did the legal work and supervised any per-diem attorneys he retained. According to him, up until the time she commenced the matrimonial action, Romania did the firm's administrative work, with the exception of payroll which she did for only a short time. Mattera did not have a personal ...