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

January 27, 2011

BRUCE E. KILMER, JR., PLAINTIFF-APPELLANT,
v.
SHARON A. KILMER, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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