May 16, 2012
CARLA J. SADEJ, PLAINTIFF-RESPONDENT,
JESSE D. SADEJ, DEFENDANT-APPELLANT.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 24, 2012 - Before Judges Payne, Reisner and Simonelli.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2208-09.
In this matrimonial matter, defendant Jesse Sadej appeals from that part of the December 2, 2010 final judgment of divorce (JOD), which awarded permanent alimony to plaintiff Carla Sadej, and equitably distributed the parties' marital assets. We affirm the equitable distribution award, and reverse and remand for further proceedings with respect to the alimony award.
Plaintiff and defendant were married for twenty-one years, and divorced in December 2010. They have three children who were seventeen, fourteen, and eleven at the time plaintiff filed the divorce complaint in 2008. Defendant was employed by United Parcel Service at the time of the marriage. He left that employment in 1994, and became self-employed as a real estate developer and manager. With financial assistance from plaintiff's parents, the parties purchased real estate, which defendant renovated, rented, or sold.
Properties Subject to Equitable Distribution
1. The Marital Home
In 1994, the parties purchased property located in Upper Saddle River for $217,500 (the marital home). They paid $32,500 and borrowed $185,000 from plaintiff's parents. They later obtained financing for extensive renovations. At the time of trial, the property had a mortgage balance of approximately $1.8 million, and it was in foreclosure. At trial, Kenneth Baker, a licensed real estate broker, testified that the parties should list the property for sale at no more than $1.6 million. Defendant testified that the property "should not be listed for anything less than [$2.5 or $2.6] million."
2. The Edgewater Property
Plaintiff's father owned two separate but adjoining lots located in Edgewater (the Edgewater property). In 1996, defendant entered into an agreement with plaintiff's father to improve the property, and thereafter constructed six townhouses and five stores. Plaintiff's father eventually gifted the entire property to the parties. The parties received monthly rental income of $7000 from one lot, and $6000 from the other lot. After paying the monthly carrying charges, there was a monthly net rental income of $10,500, $10,000 of which was to be used to pay a "wrap around" mortgage the parties had later obtained. The parties stipulated that one lot had an "as is" market value of $1.54 million, with an approximately $826,670 mortgage balance, and the other lot had an "as is" market value of $1.4 million, with an approximately $674,386 mortgage balance.
3. The Seaside Park Property
In 1998, plaintiff, defendant, and plaintiff's parents jointly purchased property in Seaside Park for $305,000 (the Seaside Park property). Plaintiff and defendant paid $10,000, and plaintiff's parents paid $305,000. In 2002, defendant began and major construction on the property, but it remained unfinished due to litigation with the Borough of Seaside Park.
The property had occasionally been rented during the summer season, at approximately $6000 per week. There was a mortgage balance of $1,273,962, which plaintiff and defendant conceded was solely their responsibility. The parties stipulated that the property's "as is" market value was $1.9 million, and $2.6 million if finished. Because the property was unfinished, and plaintiff's parents had a fifty percent ownership interest, its fifty percent net value to the parties was $950,000. The property was in foreclosure, and was listed for sale at $1.6 million.
4. The Bergenfield Property
In 2000, the parties purchased property in Bergenfield for $185,000 (the Bergenfield property). They paid $10,000 and obtained a $175,000 mortgage. At the time of purchase, the property was a subdivided lot containing a single-family house. Defendant demolished the house and constructed two houses. The parties re-financed the property for $1.2 million. One of the houses sold for $865,000 in 2008, and the parties used the sale proceeds to pay attorney's fees, mortgages, and bills. The other house was not sold. There was a mortgage balance of $774,000, and the property was in foreclosure.
5. The Upper Saddle River Lot
In June 2006, the parties purchased a three-acre lot in Upper Saddle River for approximately $1 million (the Upper Saddle River lot). The lot is adjacent to the marital home, and is not encumbered by any mortgage. At trial, Baker testified that the lot's highest and best use was to subdivide it into two lots that could sell for $750,000 each. Defendant testified that based on his expertise as a property developer, the lot's best use was to construct low income affordable housing units, which he could develop. He claimed he had already received preliminary approval for $158 million for the construction, and could secure the necessary financing for the project.
6. The Ramsey Property
In May 2008, plaintiff and defendant purchased commercial property in Ramsey for $660,000 (the Ramsey property). They paid $25,000 and obtained a $1 million mortgage from Penn Business Credit (the Penn mortgage). They secured this mortgage with their other properties, creating a "wrap around" mortgage. As a result of a dispute between defendant and Township of Ramsey officials,*fn1 the renovations were only ninety percent complete, and it will cost approximately $120,275 to complete them. The parties stipulated that the property's "as is" market value was $950,000. They listed it for sale at $1.2 million, but the trial judge later reduced the sale price to $975,000 after the property failed to sell at the higher price. The property was in foreclosure.
In awarding equitable distribution, the trial judge analyzed and made findings on each of the properties and applied the N.J.S.A. 2A:34-23.1 factors. He decided to equally divide the properties "with an eye to [the parties'] relative abilities and earning capacities." The judge noted that unlike plaintiff, defendant had knowledge and experience developing real estate and made his living as a real estate developer for many years. Noting that he had "little faith that [defendant] can be relied upon to make alimony and/or child support payments, no matter what amount is set,"*fn2 the judge concluded that plaintiff required passive income from the income-producing properties to support herself and the children. Accordingly, he awarded plaintiff the Seaside Park property, noting that plaintiff's mother was still a fifty percent owner,*fn3 "which greatly enhance[d] the chances of it being sold or otherwise disposed of." The judge also awarded plaintiff the Edgewater property, noting that once the wrap around mortgage was satisfied, the rental income from this property "can provide the long-term financial support [plaintiff] and the children require."
The judge awarded the marital home and Upper Saddle River lot to defendant because defendant had expressed a strong desire to develop these properties; however, the judge permitted plaintiff and the children to live in the marital home "until it [was] sold or conditions otherwise mandate their departure."
The judge ordered the sale of the Ramsey and Bergenfield properties, which were in foreclosure, and an equal division of any profit from the sales, or any credit from the foreclosures. He emphasized that it was impossible to provide a final accounting to prove an equal division of the properties, and the parties may have to return for further proceedings "to fine tune the property division to achieve the equality envisioned."
On appeal, defendant contends that the judge made an inequitable distribution of the properties because he received no income-producing property or property of commensurate value to those awarded to plaintiff. We disagree.
Our review of a Family Part judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "Because of the family courts' special jurisdiction and expertise in family matters, [we] should accord deference to family court factfinding." Id. at 413. Thus, we will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance,'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will "not disturb the 'factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Cesare, supra, 154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). With regard to questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).
"The goal of equitable distribution . . . is to effect a fair and just division of marital assets." Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005). To accomplish this goal, the trial court must consider the factors enumerated in N.J.S.A. 2A:34-23.1. These factors include, in part, the length of the marriage, the standard of living established during the marriage, the economic circumstances of each party after the divorce, the income and earning capacity of each party, and the present value of the property. N.J.S.A. 2A:34-23.1a, d, f, g, k. In determining an appropriate distribution, the court must also consider the liabilities of the parties. See Monte v. Monte, 212 N.J. Super. 557, 567 (App. Div. 1986); N.J.S.A. 2A:34-23.1m. The trial court "should apply all the factors" and "distribute the marital assets consistent with the unique needs of the parties." Devane v. Devane, 280 N.J. Super. 488, 493 (App. Div. 1995).
As is the case with alimony awards, the distribution of property between divorcing spouses is subject to the trial court's discretion. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978). However, the trial court must make "specific findings of fact on the evidence relevant to all issues pertaining to . . . equitable distribution, including specifically, but not limited to, the factors" listed in the statute. N.J.S.A. 2A:34-23.1. We will "affirm an equitable distribution 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).
Here, the evidence supports the equitable distribution award. Defendant received the marital home and Upper Saddle River lot because he expressed a desire to develop these properties, and had potential financing to do so. He testified that the lot had significant value, especially for the development of affordable housing units, and that the marital home was worth at least $2.5 million.
In any event, Baker valued the marital home at $1.6 million. Although the home is encumbered by a $1.8 million mortgage, the Upper Saddle River lot is unencumbered. According to Baker, the lot could be subdivided and the two lots could be sold for $750,000 each. Thus, the marital home and Upper Saddle River lot had a combined value of $3.1 million, according to Baker. After satisfying the $1.8 million mortgage, the properties had a combined the net value of $1.3 million.
Plaintiff received the Edgewater property. The lots on this property have a combined stipulated value of $2.94 million, and a combined mortgage balance of $1,501,056. Thus, the property's combined net value is $1,438,944. Although this property is income producing, the rental income had little present value to plaintiff because it was used to pay the wrap around mortgage.
Plaintiff also received the Seaside Park property, which has a stipulated value of $1.9 million; however, the parties are only entitled to fifty percent, or $950,000, because plaintiff's mother had a fifty percent ownership interest in the property. Since the mortgage balance is $1,273,962, this property had a negative net value of $323,962. Subtracting this from the Edgewater property's net value, plaintiff's net value for both properties is $1,114,982, which is less than defendant's net value in the marital home and Upper Saddle River lot.
We are satisfied that the judge did not abuse his discretion in his equitable distribution award. While clearly all of the above calculations are a "best case scenario," as the judge noted, he had no other concrete numbers to work with; the parties had either stipulated to the net values of each property, or relied on appraisals. The judge clearly attempted to provide each party with property of value, and accomplished a fair division. Considering these calculations further in light of the factors listed in N.J.S.A. 2A:34-23.1, as the judge did, he made a fair allocation of the parties' assets and liabilities.
Beginning in December 2008, when the parties separated, defendant provided no financial support for plaintiff and the children. He was unemployed and had not sought employment since May 2009. He has a degree in construction engineering. He also had a builder's license, which he let expire, but could renew.
Plaintiff is the custodial parent. She has a degree in marketing. At the time of the marriage, she was employed by Stern's department store, where she began as a manager, and was eventually promoted to buyer. She left that job in 1996, to care for the parties' children. At the time of trial, she was working approximately twenty-four hours per week at an artistic design company as a designer and assistant to the owner, earning twelve dollars per hour. She earned $6,504 in 2008, and $17,385 in 2009. She was also managing the parties' properties after the judge removed defendant from that responsibility due to his mismanagement.
In determining defendant's alimony and child support obligations, the judge analyzed the parties' actual need and ability to pay. He noted that plaintiff could not avail herself of the Edgewater property's rental income until after the "wrap around" mortgage was satisfied. Thus, for purposes of alimony computation, he found her income was $17,000 "for now."
The judge found that for many years defendant had derived his income from a combination of his real estate development business, borrowing against the properties, and his in-laws' financing. The judge also found that defendant was not a salaried employee, and would not likely become a salaried employee given his then-age (48 years old) and the present economy. The judge recognized that defendant would have to "marshall" his share of the parties' assets in order to begin earning a living as a property developer without his in-laws' financial assistance.
Because defendant "had no discernable income of his own for quite some time," the judge implicitly found he was voluntarily unemployed, and decided to impute income to him in order to craft an initial alimony amount. The judge utilized the New Jersey Department of Labor and Workforce Development Bergen-Hudson-Passaic County Area Occupational Wages, found that $133,000 was an average yearly income for construction management occupations, and imputed that amount to defendant. The judge then awarded plaintiff permanent alimony of $3300 monthly. Using the imputed income and applying the Child Support Guidelines, the judge set child support at $283 weekly.
The judge recognized that the parties' finances were not yet settled, and thus, the support amounts "will have to be reviewed in a year or two when the accounts are settled and a longer-term approach can be taken."
Defendant contends that the judge erred in imputing income to him because he was not voluntarily unemployed or underemployed; rather, "he was effectively put out of business" by plaintiff and the judge, and thus, deprived of his sole means of providing support. Defendant also contends that the judge failed to make sufficient findings on his ability to earn and likelihood of earning at the level imputed. We disagree with defendant's first contention, but agree with the second.
A party's current income "is the primary fund" for the support of the other spouse. Bonanno v. Bonanno, 4 N.J. 268, 275 (1950). "[N]evertheless, the [supporting spouse's] property and capital assets and his capacity to earn the support awarded by diligent attention to business - his earning capacity or prospective earnings - are all proper elements for the court's consideration in fixing the amount of the award." Ibid. "A supporting spouse's potential to generate income is a significant factor to consider when determining his or her ability to pay alimony." Miller v. Miller, 160 N.J. 408, 420 (1999). In determining a spouse's ability to pay alimony, a trial judge may impute income to a spouse who is voluntarily unemployed or underemployed. Tannen v. Tannen, 416 N.J. Super. 248, 261 (App. Div. 2010), aff'd, 208 N.J. 409 (2011).
Similarly, the Child Support Guidelines permit the court to impute income to a parent if the court finds that the parent is, "without just cause, voluntarily underemployed or unemployed." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2504 (2012). In determining whether to impute income to a parent, the court should consider
(1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed, (2) the reason and intent for the voluntary underemployment or unemployment, (3) the availability of other assets that may be used to pay support, and (4) the ages of any children in the parent's household and child-care alternatives. [Larrison v. Larrison, 392 N.J. Super. 1, 19-20 (App. Div. 2007) (citing Child Support Guidelines, supra, at 2505).]
Income will be imputed "based on potential employment and earning capacity using the parent's work history, occupational qualifications, educational background, and prevailing job opportunities in the region." Child Support Guidelines, supra, at 2505. The court may also determine an imputed income amount based on the parent's prior earnings, or rely on "the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL)[.]" Ibid.
A trial court's decision to impute income is discretionary, and will not be disturbed on appeal unless "'the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence.'" Ibrahim v. Aziz, 402 N.J. Super. 205, 210 (App. Div. 2008) (quoting Storey v. Storey, 373 N.J. Super. 464, 479 (App. Div. 2004)). "Competent evidence includes data on prevailing wages from sources subject to judicial notice." Storey, supra, 373 N.J. Super. at 475 (noting that the Child Support Guidelines discuss imputation based on data reported by the NJDOL).
Here, defendant's argument that he was "effectively put out of business" by plaintiff and the judge lacks credibility. The evidence established that defendant was misusing the Edgewater property's rental income to finance the construction on the Ramsey and Seaside Park properties. He had also failed to pay the mortgages and expenses on all of the properties, which put four of the parties' six properties into foreclosure. As a result of defendant's mismanagement, the judge appointed a rent receiver, and enjoined defendant from entering the properties and collecting rents. The judge subsequently appointed plaintiff as interim property manager. Thus, defendant was not involuntarily "put out of business."
In any event, even if defendant was involuntarily unemployed, he does not explain why he failed to secure any other employment since December 2008, when the parties separated. He also provided no evidence whatsoever of his attempts to secure employment in any field, or his employability. He has a degree in construction engineering and, by his own admission, has been employed as a property developer since at least 1994. Throughout the trial, he emphasized his prowess at developing properties for profit, and yet on appeal argues that he is unable to continue in this profession without access to the parties' properties.
Defendant cannot avoid his obligation to obtain employment by claiming he can only develop the properties the court equitably distributed. See Clarke v. Clarke, 349 N.J. Super. 55, 58 (App. Div. 2002) ("It was . . . within the judge's discretion, in addressing plaintiff's earning capacities, to employ as a benchmark the amount of time plaintiff had devoted to his work during the marriage and to expect him to continue working at that level."); Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982) (stating that "one cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one's family"). Accordingly, because defendant was clearly voluntarily unemployed, the judge did not err in imputing income to him.
In addition, because defendant's pre-divorce income was unclear, the judge did not abuse his discretion by imputing income to him. See Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002) ("Both the [child support] guidelines and the case law of this State explicitly permit the imputation of income where earnings cannot be determined.") The judge recognized that defendant is not a salaried employee, and funded the family's lifestyle by essentially borrowing money from his in-laws, and purchasing, renting, and selling real estate. This "business" did not yield a steady salary, as there was no consistency in the costs of purchasing and renovating the properties and the rental or sale profits. Under N.J.S.A. 2A:34-23(b)(1), the judge was obligated to consider the parties' actual need and the ability to pay. Without imputing some income to defendant, the judge could not determine an appropriate support obligation. See Bonanno, supra, 4 N.J. at 275.
Although we agree that the judge correctly imputed income to defendant, we cannot determine from this record whether the imputed amount of $133,000 per year was a realistic assessment of defendant's earning capacity.
"Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey, supra, 373 N.J. Super. at 474. An alimony award should "take into consideration the real facts and circumstances of each party's financial situation including actual income, expenses, support from other sources and potential earning capacity." Connor v. Connor, 254 N.J. Super. 591, 604 (App. Div. 1992). On appeal, a trial judge's imputation of a specific amount of income "will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Storey, supra, 373 N.J. Super. at 475.
Although defendant provided no evidence of his employability, "[u]nderpinning the basis of every support order is the proposition the payor has the 'ability to pay' the amount set, or agreed to." Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998). The judge imputed $133,000 as defendant's yearly income based on the average income earned by individuals employed in the field of construction management, according to the NJDOL. However, immediately prior to imputing this income, the judge noted that what defendant "really requires is the marshalling and disposal of his share of the parties' assets so that he can start again to earn a living doing what he knows, and to learn if he can do so without the assistance of his former in-laws." The judge had also noted that defendant earned his living "with substantial assistance from his in-laws," and that defendant's "business was funded in large part by" his in-laws. While the NJDOL averages were an appropriate source for the judge to consider when imputing income, he should also have considered these averages in light of the particular circumstances of this case, to ensure that the alimony award matched both plaintiff's need and defendant's ability to pay. See Overbay v. Overbay, 376 N.J. Super. 99, 111 (App. Div. 2005) (noting the fact-sensitive nature of alimony awards).
The judge recognized that in light of the continuous support defendant received from his in-laws during the marriage, defendant's future in the property development business was uncertain; however, the judge simultaneously determined that $133,000 was an appropriate yearly income to impute to defendant, without explaining why that figure was appropriate. Thus, the judge arguably imputed income at a level that defendant could not attain at present, without explaining how this figure applied to the facts of this case. For this reason, we remand to the judge to make findings of fact and conclusions of law on the imputed income and, if necessary, reduce it and recalculate the alimony award.
Defendant contends that the judge erred in failing to analyze plaintiff's ability to earn income at levels above her part-time employment, and in not imputing income to her. We reject this contention.
As we previously discussed, it is within the court's discretion to impute or not impute income to a party when determining an appropriate alimony award, based upon an assessment of whether the party was voluntarily unemployed or underemployed. Because plaintiff was not unemployed or underemployed, the judge did not abuse his discretion in not imputing additional income to her. As the judge properly found, plaintiff's employability was limited by the fact that two of the parties' three children still resided with her, and she was serving as the property manager of the parties' properties in addition to her part-time employment, which could affect the type of employment she might obtain. In addition, plaintiff had not worked full-time since 1996, and was forty-five years old at the time of trial. There was no evidence that she had the ability to earn more money at another job, or that she could have obtained full-time employment given her long-term absence from the job market.
Defendant contends that the judge erred in failing to properly analyze the N.J.S.A. 2A:34-23(b) factors in awarding alimony. He primarily argues that the judge should have imputed more income to plaintiff, and that because the judge awarded plaintiff income-generating property, he should not have awarded her $3300 monthly.
Defendant's arguments are largely unpersuasive. As we previously concluded, the judge did not err in his equitable distribution award, or in not imputing income to plaintiff. However, we cannot determine on this record whether the alimony amount awarded was appropriate.
"[T]he 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." Crews v. Crews, 164 N.J. 11, 16 (2000). "Trial courts may award such alimony 'as the circumstances of the parties and the nature of the case shall render fit, reasonable and just.'" Overbay, supra, 376 N.J. Super. at 106 (quoting N.J.S.A. 2A:34-23). However, N.J.S.A. 2A:34-23(b) lists thirteen specific factors that the court must consider in determining an appropriate alimony award. The trial court must analyze each factor in light of the facts of the case because "mere recitation of these factors does not give them content." Grayer v. Grayer, 147 N.J. Super. 513, 516 (App. Div. 1977); see also Overbay, supra, 376 N.J. Super. at 111.
In addition, in all non-jury trials, a court is required to find the facts and state its conclusions of law in an opinion or memorandum decision. R. 1:7-4(a). "Naked conclusions do not satisfy the purpose of R. 1:7-4[,]" and instead, clear factual findings must be made to support the legal conclusions reached. Curtis v. Finneran, 83 N.J. 563, 570 (1980); Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 561 (App. Div.), certif. denied, 200 N.J. 476 (2009). If sufficiently clear factual findings are absent from the record, the appellate court will remand to the trial court for additional findings. See Curtis, supra, 83 N.J. at 571.
Here, the judge considered and applied the N.J.S.A. 2A:34-23(b) factors, and concluded that "[t]he length of the marriage and the circumstances under which the parties lived . . . merits permanent alimony, subject to termination or modification as provided by law." However, he did not explain how he arrived at the alimony amount or why this amount was appropriate. He also did not address how his decision to allow plaintiff to remain in the marital home, despite awarding it to defendant in equitable distribution, affected the alimony amount. See Schaeffer v. Schaeffer, 184 N.J. Super. 423, 427-28 (App. Div. 1982) (noting that "the right of the occupant-spouse to exclusive possession of the marital residence subject to a deferred sale or mortgage pay-off is not merely an aspect of equitable distribution but . . . also constitutes a contribution by the nonoccupant spouse to the support of the custodial parent and of the children"); see also Savoie v. Savoie, 245 N.J. Super. 1, 5-6 (App. Div. 1990); Daeschler v. Daeschler, 214 N.J. Super. 545, 553 (App. Div. 1986). Therefore, although the judge considered the N.J.S.A. 2A:34-23(b) factors, and arguably applied them to the facts of this case, he did not explain why he concluded that $3300 per month was the appropriate alimony amount. Accordingly, the remand shall include findings of fact and conclusions of law on the alimony amount. Due to the passage of time since the JOD's entry, the proceedings on remand may require updated information from both parties, including the status of the real estate, defendant's current employment situation, and his efforts to find employment since the JOD's entry.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.