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Bruce E. Kilmer, Jr v. Sharon A. Kilmer


January 27, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1505-08W.

Per curiam.


Argued: January 5, 2011 - Decided: Before Judges Fisher and Fasciale.

Bruce E. Kilmer, Jr., appellant, argued the cause pro se (Paul DePetris, on the brief). Andrew L. Rochester, argued the cause for respondent (Morgenstern & Rochester, attorneys; Mr. Rochester, on the brief).

Plaintiff-husband Bruce E. Kilmer, Jr., appeals from an amended judgment of divorce. Bruce contends that the trial judge erred by (1) directing that he return fifty percent of the money he withdrew from a joint bank account; and (2) ordering that he pay defendant-wife Sharon A. Kilmer one-half of her counsel fees. With a few exceptions, we reverse the judge's direction to turn over money from the account, and affirm the award of counsel fees.

The parties were married in 1986 and had two children together. They kept a joint checking and savings account during the marriage into which Bruce would deposit his paychecks and from which he would pay the family's bills. This account was subject to equitable distribution. Sharon had access to the account, but she used it infrequently.

Although the parties agreed to split the account equally, Bruce made two withdrawals totaling $33,395 without notifying Sharon. He withdrew $10,000 and claimed that it had been a gift from his parents. A month later, he withdrew $23,395 because Sharon threatened to freeze the account. It is undisputed that Bruce spent the $23,395 mostly on a joint obligation to pay college expenses for one of the children.

The two issues in the divorce trial were limited to determining the value of the joint account for equitable distribution purposes, and whether to award counsel fees.*fn1

Sharon argued that she was entitled to half of the $10,000 Bruce withdrew because it was a gift from Bruce's parents to both of them. She also contended that Bruce should have used either his "disposable income" or an existing college account to pay for the college expenses, rather than their joint account.

The trial judge listened to testimony from the parties, concluded that Bruce spent most of the money he withdrew on joint college expenses, ruled that Sharon was entitled to one-half the $10,000 gift from Bruce's parents, and awarded Sharon one-half of her counsel fees.

On appeal, Bruce argues that the judge erred by requiring him to return to Sharon half of the $10,000 gift and half of the $23,395, and by awarding Sharon counsel fees. He contends that his parents never intended to make Sharon a beneficiary of their $10,000 gift. He explains that it would be unfair to require him to turn over half of $23,395 to Sharon because most of it was spent on the parties' joint obligation to pay college expenses.

In awarding equitable distribution, the judge must engage in a three-step process. Rothman v. Rothman, 65 N.J. 219, 232 (1974). The judge "must first decide what specific property of each spouse is eligible for distribution." Ibid. Second, the judge "must determine its value for purposes of such distribution." Ibid. Third, the judge "must decide how such allocation can most equitably be made." Ibid.; accord LaSalla v. LaSalla, 324 N.J. Super. 264, 276 (Ch. Div. 1999), rev'd and remanded on other grounds, 335 N.J. Super. 1 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). To effectuate an equitable distribution of the parties' assets, the judge is to consider, but is not limited to, the sixteen factors enumerated in N.J.S.A. 2A:34-23.1.

The allocation of marital assets through equitable distribution is within the trial court's discretion. LaSalla, supra, 335 N.J. Super. at 6. An appellate court will affirm an equitable distribution award "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." Ibid.

We begin by addressing Bruce's argument that the judge erred by including his withdrawal of $23,395 in determining the value of the joint account, and directing him to return half of it to Sharon.

While Bruce admitted that he withdrew $23,395 without Sharon's consent, it is undisputed how he used it. He spent $4,445 on Sharon's car and $18,950 on college expenses for one of their children. Bruce did not dissipate marital assets by spending any part of the money for his own benefit. Kothari v. Kothari, 255 N.J. Super. 500, 506 (App. Div. 1992) (explaining that dissipation occurs where "a spouse uses marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship was in serious jeopardy.") (citation omitted). Here, Bruce spent marital assets on family expenses.

Sharon did not contest how Bruce spent the money; she argued that he spent money from the wrong account. Bruce explained that he did not use the college account to pay the expenses because:

[T]here was a loss due to the market conditions on those accounts, so I elected to leave that money there and use other money to pay for college versus taking it out. At that time it would have been an actual loss instead of a paper loss hoping that it will come back some day.

Furthermore, the college account is available to pay the parties' continued joint obligation.

It would be inequitable to require Bruce to turn over half of $23,395 to Sharon when he used that money to satisfy her obligation to contribute to college expenses. Nevertheless, Sharon was responsible for forty percent of the college expenses and Bruce was responsible for sixty percent. Forty percent of $18,950 is $7,580; however, because the parties agreed that the account would be split equally, Sharon was entitled to half of $18,950, or $9,475. Therefore, Sharon is now entitled to the difference between $9,475 and $7,580, or $1,895, because if $1,895 were not returned to her, Bruce would have a windfall of ten percent.

Next, there is sufficient credible evidence to support the judge's finding that Bruce's parents gave the $10,000 gift to the parties. Sharon testified that Bruce's parents gave them the gift after the parents received a substantial amount of money from the sale of certain property. She referenced a letter that the parents wrote to her and Bruce that stated in part:

Dad and I were blessed in receiving some money for the sale of Grandad's house, $150,000 to be exact. So we decided to share [it] with our children now instead of waiting until you inherit it.

So accept this gift as it was intended "an unexpected bonus in life[.]" [W]e are happy to share this with our children.

Mom Dad.

Our standard of review requires that we defer to the facts found by a Family Part judge "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The judge found Sharon's testimony credible, and we see no reason to disturb that finding.

Finally, Bruce argues that the judge abused his discretion by awarding Sharon half of her counsel fees. In awarding fees to Sharon, the judge stated:

The factors to be considered in awarding counsel fees in family actions are set forth under Rule 5:3-5(c). The [c]court makes the following findings regarding these factors: financial circumstances of the part[ies]; the [c]court finds that [Bruce] is [in a] much better financial circumstance than [Sharon]. Two, the ability of the . . . parties to pay their own fees of to contribute to the fees of the other. The [c]court finds that [Sharon] will have to struggle to meet her expenses. [Bruce] has a better ability to pay counsel fees.

Three, the reasonableness and good faith of the positions advanced by the parties[;] the [c]court finds that each party acted in reasonably good faith in this matter as well as to each other. Four, the extent of the fees incurred by both parties[;] . . . a certification of services . . . was submitted by [Sharon's] counsel in regard to what . . . would have been charged in light of the motions and settlement and all of that, and the [c]court did take that and has that in - and notes that.

Any previous awards[;] there was nothing previously awarded. The amount of the fees previously paid to counsel by each party[;] that wasn't specifically known. Neither party provided this information, but it was not requested by the [c]court either.

The results obtained, the primary issue in the case was the expenditure of proceeds from the joint bank account, and [Sharon] was granted equitable distribution [of the gifted money] on that particular account. The degree to which fees were incurred to enforce existing orders or compel discovery is not applicable, and any other facts bearing on the fairness of the award. The [c]court finds that not applicable.

An award of counsel fees in a matrimonial matter is discretionary. R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). It will not be disturbed absent a showing of abuse. Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999). If the judge fails to make findings to support his award of counsel fees, the award must be set aside. Gordon v. Rozenwald, 380 N.J. Super. 55, 79 (App. Div. 2005). Here, the proper findings were made and there was no abuse of discretion.

Affirmed in part; and reversed in part.

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