September 6, 2012
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1707-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 11, 2011 --
Before Judges A. A. Rodriguez, Ashrafi and Fasciale.
Plaintiff, D.P.G. (Husband), appeals from portions of an October 21, 2010 divorce judgment. Defendant, L.G. (Wife), urges affirmance on all issues. We affirm in part, reverse in part, and remand to the Family Part to calculate the amount of credits towards support arrears due to Wife for Husband's direct payments.
The parties were divorced on October 21, 2010, after eighteen years of marriage. Three children were born of the marriage, now ages eighteen, sixteen and fifteen.
Prior to trial, the parties entered into a property settlement agreement (PSA) with respect to some issues, i.e., distribution of real and personal property; joint legal custody of the children, with Wife's being their primary residence; and a pro-rata distribution of the pay-outs from 400 of husband's 800 tracking shares.
The remaining issues were to be tried by the judge. These issues are amount and duration of spousal support; amount of child support; Husband's arrearages; allocation of life insurance premiums for each party, including Husband's disability policy; and valuation of missing American Express gift certificates.
The proofs can be summarized as follows. The parties met in May 1989, when they were both working in the food service industry at the Park Ridge Marriot, in Park Ridge. Husband was working as the Director of Catering and Wife as a Catering Service Manager. They started living together in September 1989, at Husband's condominium unit, which was owned by Husband, his brother and parents.
Three years later, they married. In 1994, the parties purchased a single-family house in Pearl River, New York, for $215,000. The down payment came from Husband's assets and both parties executed a mortgage on the property. This house was sold in 1998 for $350,000, the proceeds from which were used to purchase a lot and construct a single-family home in Montvale (the marital residence). The cost of this home was approximately $535,000. In August 2008, the parties purchased a ranch-style home in Montvale for $1,050,000. The purchase was financed through a mortgage and home equity loan on the Montvale single-family home. The parties intended to relocate to the ranch-style house. In 2004, Husband was first diagnosed with multiple sclerosis, and this new home would make dealing with that condition easier.
Between 1984 and 2000, Husband ascended through various positions relating to catering management at area hotels. In 2000, he became the General Manager of Pier 60 LLC, and a subsequent promotion within that organization made him First Vice President at Chelsea Piers. His compensation varied by year, but was comprised of a base salary, a bonus and so-called "tracking shares" in the company. These shares function as stock in the company such that the holder receives annual or biannual distributions. They are considered phantom shares, though, because if Husband leaves his job, those shares are reabsorbed by his employer and Husband receives no compensation for them.
Wife had worked in the catering industry as well until a few months before the 1996 birth of the parties' second child. In 2003, she returned to the workforce part-time at a Montvale sporting goods store. At the time of trial, she worked on a commission basis for a moving company, earning between $30,000 and $35,000 annually.
In February 2009, Husband filed this divorce action. In April 2009, he moved from the marital home to the ranch-style house.
On July 14, 2009, husband was ordered to pay $10,000 per month in unallocated pendente lite support. Payments were to be made through the Bergen County Probation Department through the income withholding procedure. However, Husband did not comply. Instead, he paid some of Wife's expenses directly to the suppliers. This resulted in arrearages of $105,988.46, as of June 2010.
Husband submitted to the judge a series of certifications outlining payments he made directly. These reflected payments in the following categories: mortgage; home equity loan; E-Z Pass; utility bills; disability and life insurance premiums; automobile and homeowners insurance; hockey equipment for the children; pre-paid federal and state taxes; landscaping fees; probation payments; hospital care for one child; and a direct payment to Wife of $5,000. Husband sought credits totaling $102,581.51 for the period of July 14, 2009 through June 12, 2010.
Wife conceded that direct payments had been made, but no credit had been applied to the arrearages. She agreed that some of Husband's direct payments to a joint credit card should be credited to his arrears, and acknowledged $11,925 in credits for direct mortgage payments covering the period from August through December 2009.
Regarding the home equity loan, she contended that it was not her responsibility, as it was secured by the marital home, but used to purchase the ranch-style home. Nonetheless, she conceded that if the court determined payment for that loan was her responsibility, $4,188.50 in credits could be applied. The EZ-Pass payments of $126.97 and $1,804.41 in utility bills were also conceded. She opposed any credits for any insurance premiums, hockey equipment or taxes. In a supplemental June 22, 2010 letter, Wife reiterated her opposition to certain credits, and agreed that the arrearages incorrectly did not reflect the $5,000 direct payment, or credits for mortgage and utility payments for the marital residence.
The judgment of divorce was amended twice. The judge's final opinion incorporated the two amendments. The judge found that for the year 2008, Husband earned $216,288.90 in base salary, plus $100,000 in bonuses, for a total of $316,288.90. In 2009, as a W-2 employee he had earned $261,982, not including $10,500 he had earned from tracking shares. The court stated that the income from the tracking shares "amounts to a substantial additional annual income" which brought Husband's income to nearly $400,000 in 2008.
In making the equitable distribution arrangement, the judge cited the factors in N.J.S.A. 2A:34-23.1 and made explicit findings for each factor. The judge noted Husband's request for credits against his arrearages owing to direct payments he made. These payments for the "mortgage, home equity loan, utility bills, insurance, lawn care and taxes totaled $57,602.04 through January 19, 2010, which includes $2,905.16 paid to probation, $2,233.20 for [Husband's] disability and life insurance" and a $5,500 estimated federal tax payment. The judge found that Wife had to make the Schedule A, B and C payments herself. The judge identified the following additional claims for credits to Husband: additional mortgage payments of $5,466, home equity payments of $3,057.53, utility bills of $5,662.26, [probation] payments of $1,500, homeowners insurance of $1,086.66, disability and life insurance of $1,270.14, and Valley Hospital on account of the parties' son, for an additional total of $18,092.59 through March 9, 2010.
He claims additional credits from and after March 9, 2010, as follows: $2,733 for mortgage payments, $689.02 for utility bills, $543.33 for homeowners insurance, $481.60 for life and disability insurance and $300 to [probation].
He claims additional credits since March 21, 2010, through June 17, 2010, of $8,199 in mortgage payments and home equity loan payments of $3,000.
In sum, the judge's opinion reflected that Husband sought credits totaling $91,590.58.
The judge agreed with Wife and disallowed the "estimated tax, life and disability insurance, certain utility, home equity, and other payments." This left a credit to Husband of $13,856.52. When added to a $13,764 credit against Wife's "personal charges less returns and credits," the judge granted Husband credits totaling $27,620.52 against his arrearages. Although recognizing that Husband's decision to ignore the pendente lite order and make payments directly owed to his "proclivity for control of his and the family's finances," the judge saw a need to punish Husband for his continued refusal to follow the pendente lite order. This was despite the judge's acknowledgement that Wife was "willing to afford him credits for the mortgage, utility and 'EZ Pass' payments that he made[.]"
On the issue of the missing American Express gift cards, the judge ordered that if found, they were to be allocated to the children's college funds. In addition, the judge granted Wife twelve years of limited duration alimony. The judge based the decision on the length of marriage, the Wife's future employment potential, and Husband's employment history, including an income of nearly $400,000 in 2008. The judge viewed the parties' lifestyle as more modest than Husband's income may have provided for.
In setting the spousal support obligations, the judge considered the factors specified in N.J.S.A. 2A:34-23(b). He made express findings with respect to each factor based on the evidence. The judge set the support award at $10,000 per month for 12 years, ending October 1, 2022.
Because Husband's income was in excess of $187,200, the judge recognized that the Child Support Guidelines were not an appropriate guideline. The calculation was then made applying the Child Support Guidelines up to $187,200 and supplementing that amount based on factors in N.J.S.A. 2A:34-23(a) and reasonable needs of the children. After performing the requisite calculations required on the worksheets, the judge arrived at a figure of $269 per week. Because the parties' daughter was estranged from Husband, however, the judge prepared three separate calculation worksheets to determine the impact of only two of the children having overnight visits with Husband. In consideration of the parties' lifestyle, the educational potential of the children including their activities, and the lack of danger of a lavish excess resulting from a high child support award, the judge ordered an additional award of $5,000 per child per year until they are emancipated or attend college. This amount was to be placed in the children's existing college savings accounts. Finally, the judge found that one son's athletic interests, combined with the parties' educational backgrounds, were sufficient reasons to order Husband to pay at most $15,000 per year for tuition, books and fees for that son to attend private school. Also, if either of the other two children wanted to attend private school, Husband was required to pay an additional amount, up to $15,000 per year per child, which would be a dollar-for-dollar credit against his additional $269 per week child support obligation.
The judge ordered that the spousal child support obligations be protected through mandatory maintenance of the parties' current insurance policies. Husband holds life insurance policies with a $1.3 million benefit; Wife holds one in the amount of $400,000. Wife and the children were to be the primary beneficiary of Husband's policy to the extent of their interest until their emancipation. The children were the beneficiaries of Wife's policy with the same interest. Both parents were made trustees of the other's policies for the benefit of the children. Husband was also ordered to maintain his present disability policy.
Finally, the judge awarded counsel fees. The judge ordered Husband to pay $53,934.90 to Wife's counsel - the balance of her fee application - applying the factors in Rule 5:3-5(c), and the judge's finding especially egregious Husband's refusal to follow the pendente lite order. This caused Wife's counsel to engage in substantial motion practice. Additionally, the judge found that Husband had a tendency to "focus on petty financial details" which resulted in his losing sight of the entire process, and that both sides had been well-represented with fair billings.
On appeal, Husband contends that the judge erred by: (a) not crediting his direct payments; (b) calculating the alimony and child support obligations; (c) ordering the parties' oldest son could attend private school; (d) failing to find that the American Express gift certificates were lost; and (e) awarding counsel fees to Wife.
On general issues of fact finding by a judge, such findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," unless the reviewing court is "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." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (internal quotation marks omitted). In that instance, the findings must be supported by "substantial evidence in support of the judge's findings." Ibid.
"Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, an appellate court reviewing the grant of alimony is limited, and "[a] trial court's rulings in such matters are discretionary and not overturned unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005). "Minimally adequate fact finding requires a discussion that demonstrates that the court has heard and addressed the relevant facts and claims under the controlling legal standards." Id. at 76-77.
DIRECT PAYMENT CREDITS CONTENTION
Husband argues that the judge erred in failing to credit his arrearage for the value of direct payments made by Husband for various loans, mortgages, utilities, and the children's activities, despite concessions by Wife on some of those expenses. We agree.
Husband requests credits totaling $102,581.51. This figure is arrived at from most of the same figures set forth in the judge's opinion. However, the judge's rendering of these figures does not entirely track the certifications provided to the judge. For example, much of Husband's request in his final June 2010 certification is inexplicably left out.
It is undisputed that Husband did not follow the July 14, 2009 order requiring him to pay $10,000 per month to probation. However, although he essentially ignored that order, he did make a number of direct payments on Wife's behalf for a variety of expenses intended by the judge to be covered by Wife's use of the funds Husband was to have deposited with probation. On repeated occasions, the judge reiterated that Husband's actions were not acceptable. At one point during the trial, the judge intimated that Husband would wind up in jail if he continued to ignore the judge's order.
Husband filed a number of certifications reciting his payments and provided evidence of payments made. Wife acknowledged these payments and conceded that Husband should receive credit for some payments. Husband made a few payments to probation, but was left with arrearages over $100,000. In his final opinion, the judge recited these facts and agreed with the Wife that only $27,620 should be allowed against Husband's support arrears. The judge also made the following observation:
[Husband's] proclivity for control of his and the family's finances came through loud and clear to the Court. In view of his attitude toward financial matters, it was predictable that he chose to ignore the Court's Order and make his own arrangements.
That he made the payments is laudable; that he ignored the Court's pendente lite Order is not laudable. [Although Wife] is willing to afford him credits for the mortgage, utility, and "EZ Pass" payments he made, the Court must impose some penalty for his conduct. That will come when it considers the issue of counsel fees.
We conclude that the judge erred in failing to credit Husband for the substantial amount of direct payments he made, especially on items that Wife conceded. Thus, we remand for an adjustment of the Husband's arrearages to reflect the proper amount of credits.
Husband raises three points in respect of the judge's award of alimony. First, the income findings were not supported by evidence. Second, the double counting for alimony purposes of dividends or distributions from Husband's tracking shares -which are now split between him and Wife - was not taken into account by the judge. Third, the judge failed to make sufficient fact-finding regarding why Husband must continue to shoulder the entirety of his disability insurance without any offset in his support payments.
IMPUTATION OF HUSBAND'S INCOME
Husband argues that the judge abused his discretion by finding for support calculation purposes that Husband's annual income was $400,000. Rather, Husband posits that in his best year, 2008, he earned a base salary of $216,288.90 plus a bonus of $100,000. Because this bonus is not guaranteed, and Husband has no control over whether it is issued or how much it will be, he believes that the judge erred in assuming that it will be $100,000 each year. Additionally, because his monthly net pay is only $10,257.35, the $10,000 per month alimony payment leaves him with less than $300 to pay child support and his own expenses. Also, Husband's multiple sclerosis muddies the future. Moreover, the judge should have looked at the last three or five years of salary, rather than the one in which he earned the most, as his total income has declined each year since 2007 owing to the recession's impact on the catering industry. Finally, the judge relied on a mistaken transposition of numbers in the Husband's 2008 tax return, $361,289, instead of the figure reported by his employer, $316,289.
N.J.S.A. 2A:34-23 grants to judges the discretion to award spousal and child support "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." Subsection (b) provides a list of non-exclusive factors a judge considering an award of limited alimony shall consider. N.J.S.A. 2A:34-23(b). Included in this list is the parties' earning capacities and the history of financial contributions to the marriage. Ibid.
Here, the judge expressly listed and made findings of fact for each of the statutory factors. Additionally, the judge discussed Husband's income history in making the alimony determination. The judge examined nine years of Husband's income from 2001 to 2008. For the year 2008, that total was recorded as $316,288.90. The judge also considered distributions Husband received from his tracking shares. The value of this distribution was considered to be "substantial additional income" that brought his 2008 income close to $400,000. Although the judge did not enumerate the value of these shares anywhere in his decision, such evidence was adduced at trial through testimony by Husband's employer and discussion of the details of tax returns by both parties. Moreover, it appears that Husband can control the year in which the distributions from these shares are made to him. He testified that he has in the past delayed receipt of the distribution for tax purposes.
We add that N.J.S.A. 2A:34-23(c) provides a mechanism for challenging an award of limited duration alimony. If Husband's contention is that he actually earns substantially less than the amount found by the judge, those statutory means are available precisely for that remedial purpose.
Husband's remaining contentions on this issue are flawed. He cites Platt v. Platt, 384 N.J. Super. 418 (App. Div. 2006), in support of the proposition that support payments should be measured by the previous three or five years of income, rather than just one prior year. However, in Platt, the trial court used a longer term of years because it suspected that the party ordered to pay alimony, who was the owner of his own company, had artificially depressed his income since the time he filed for divorce to get a smaller alimony payment. Id. at 424, 426-27. Here, we do not presume Husband to imply, by his citation to Platt, that he has engaged in a similar manipulation, so his reliance on it is misplaced. Thus, the trial court was within its discretion to use a one-year term, 2008, in making its support calculation.
Regarding the number transposition issue, we denied Husband's motion to supplement the record to include his 2008 W-2 statement. There was conflicting evidence in the record on the issue of whether husband's income was $316,000 or $361,000, and we find no basis for disturbing the judge's ultimate conclusion.
DOUBLE COUNTING HUSBAND'S COMPENSATION
As part of the equitable distribution of the marital property, the parties agreed to split the shares, with Wife receiving equitable title to 400 shares. Thus, when the distribution is made, Wife will receive a pro rata portion of the income. Husband argues that when calculating support income, it was error for the judge to include the full value of the tracking shares because Husband will only receive income for half. We understand the argument, however we do not reverse the judge's decision on this issue. The amount of additional tracking shares income attributed to husband by the judge ($16,000) is not substantial in comparison to Husband's total imputed income ($400,000). The difference is about four percent of Husband's 2008 income. In short, this difference is not so significant as to affect substantially the judge's discretionary decision to award $10,000 per month limited duration alimony.
HUSBAND'S DISABILITY INSURANCE
Husband argues he should not be forced to continue to pay the approximately $500 monthly premium for his disability insurance because, besides his children, Wife is a beneficiary of the policy. The judge's decision was supported by a finding that the disability insurance is vital, as Husband's multiple sclerosis is certain at some point to render him unable to work. Thus, the order to continue the policy was necessary to ensure payment of alimony and child support.
The judge's treatment of Husband's disability policy consisted of the following: "[D.P.G.] shall maintain in full force and effect his present policy of disability insurance." It appears in a section of the decision labeled, "Insurance," which notes that Husband has agreed to maintain his life insurance in order "[t]o secure the alimony and child support obligations set out above . . . ." Reading the rest of the section with that goal in mind implies a finding that Husband's maintenance of his disability insurance was necessary to achieve that end.
Husband testified that he was lucky to have such insurance, as he had purchased the policy only a few years before his diagnosis with multiple sclerosis. Because he could not now get another one, and a missed payment would result in him losing the policy, the judge determined that his maintenance of it was essential. That determination was not an abuse of discretion given the testimony received in evidence and related in other parts of the judge's decision.
Husband contends that the judge misapplied the Child Support Guidelines by failing to properly state the parties' incomes on the worksheet. Also, Husband challenges the judge's order for an additional $5,000 per child per year in additional child support beyond that calculated pursuant to the Guidelines because the judge failed to make specific findings thereof. We conclude that this argument lacks substantive merit because the manner in which the judge made the calculations would have the same result as the way the Husband charges it should have been done.
CHILD SUPPORT GUIDELINES
Rule 5:6A provides that when calculating child support a court shall follow the guidelines in Appendix IX of the Rules. Upon a showing of good cause, the court may, in its discretion, modify or disregard the guidelines. Ibid. One situation provided as good cause for modification in Appendix IX-A is for "extreme parental income situations." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A, ¶ 20 (2012). Essentially, when parents' combined income is greater than $187,200, the court must apply the top guideline figure but retains discretion to supplement the amount after considering the amount of the excess income and factors in N.J.S.A. 2A:34-23. Ibid. The guidelines merely set a floor.
Here, the judge found that Husband had an income of $400,000 and imputed to Wife an income $43,000. Instead of using these exact figures for the income portions, and the $120,000 of alimony on Line 1c, the judge added the alimony to Wife's imputed income, making it $163,000, and left Husband's income at $187,000 - creating two weekly incomes which at first glance look wrong. The arithmetic works out to be the same for the Wife's side of the ledger. Husband's side of the ledger, however, results in a smaller amount of support owed than if the judge had used the $400,000 figure because the judge left it at the guideline maximum. Pursuant to the method urged by Husband for the first worksheet the court provided, the result is an Adjusted Child Support Obligation for Husband of $257.64. The judge's method result is $175. No matter the methodology, the resulting obligation generated by the worksheet reflected the top of the guidelines and was within the discretion of the judge to calculate.
The judge also provided three different worksheets to reflect the fact that one child, the parties' daughter, was estranged from him and as such had no overnight visits. This was the substance of the judge's Second Amended Opinion. The judge explained:
Were the overnight parenting time the same for all three of the parties' children, 52 overnights a year, the weekly child support payable by [Husband] would be $245, as appears from the worksheet attached. [Because] at this point the overnight parenting time is not the same for all three children, using all the same data other than overnights we are required to first calculate child support for the two boys using the 52 parenting time overnights which yields a child support of $245. We then calculate child support for [Daughter] alone without overnights which yields a child support of $175. We then must deduct the latter from the former, which yields a difference of $47 and which we then must add to the boys' child support amount, $222, resulting in the final $269 weekly child support amount.
It is clear that Husband's contention in this regard is without merit. The judge used the discretion provided in the Rules to calculate child support for parents with income over $187,200. The judge properly chose to use the maximum figure on the guidelines and supplement that amount in a way different than by simply increasing the weekly payment. We find no abuse of discretion.
Husband argues the judge erred by failing to apply the factors in N.J.S.A. 2A:34-23(a), and making vague findings as to lifestyle to support the child support award. We disagree.
After making the initial child support determination pursuant to the guidelines, the judge awarded an additional annual amount of $5,000 for each child. This amount is to be placed in the parties' children's established college savings accounts. Another $15,000 was ordered to be paid for the parties' older son to attend private parochial school.
N.J.S.A. 2A:34-23(a) provides a non-exclusive list of factors for a judge to consider when making an award of child support where the amount is not controlled by court rule, i.e., income greater than $187,200. The guiding principle for a court awarding child support, especially in cases where the parents earn a substantial income, is the "reasonable needs of the children, which must be addressed in the context of the standard of living of the parties." Isaacson v. Isaacson, 348 N.J.
Super. 560, 581 (App. Div.), certif. denied, 174 N.J. 364 (2002). Moreover, "where the parties have the financial wherewithal to provide for their children, the children are entitled to the benefit of financial advantages available to them." Id. at 579. A court should be mindful that such "children are entitled to not only bare necessities, [so] a supporting parent has the obligation to share with his children the benefit of his financial achievement." Id. at 580.
Here, in discussing the child support award, the judge recited that he had reviewed most of the statutory factors earlier in the opinion. Although he did not enumerate the factors as he did for other issues in other portions of the opinion, the N.J.S.A. 2A:34-32 factors were clearly being considered and applied in the discussion of the reasons for the additional child support contributions. For example, the judge noted the parties' lifestyle, the relative financial needs of the children for athletic activities, the educational backgrounds of the parties and their earning abilities, and the lack of any danger that the children would be spoiled through misuse of the additional child support funds. Indeed, the extent of the judge's additional child support order was purely for educational purposes - either to fund the costs associated with private school or to supplement the children's existing college savings accounts.
Husband also contends that the judge failed to consider factors laid out in Newburgh v. Arrigo, 88 N.J. 529, 545 (1982). Newburgh provides a non-exclusive list of twelve factors that courts "should" consider when faced with a claim for contribution for a child's higher education. Ibid. The claim in that case resulted from a son who sought contribution for his college and law school tuition in the form of a share of his deceased father's wrongful death award. Id. at 534.
Here, although the judge did not apply these factors - indeed, some are not even applicable - his discussion of the award of additional child support contains sufficient findings of fact to address the overlap with the statutory factors. Moreover, Newburgh does not apply here because there is no order for tuition payment for higher education. Rather, the judge required Husband to contribute to accounts previously established and funded by him and the children's maternal grandfather. The judge's determination of additional child support was thus adequately linked to factual findings, within his broad discretion to award it, and was not an abuse of discretion.
CHILDREN'S ATTENDANCE AT PRIVATE SCHOOL
Husband also contends that the judge erred in deciding that the children could attend private schools. Husband argues that the judge failed to perform a multi-factor analysis required pursuant to case law before ordering he pay $15,000 annually to send one child to private, parochial school. We disagree.
To make this argument, Husband applies an inapposite case through misreading another. Husband first cites Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd o.b., 288 N.J. Super. 478 (App. Div. 1996), as providing a fourteen-factor test a judge may apply when determining whether to require a non-custodial parent to contribute to tuition for private primary school. Ignoring the fact that the school at issue here is a private secondary school, Husband further posits that Finger v. Zenn, 335 N.J. Super. 438, 445-46 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001), provides the next step in the analysis - that "[i]f such a determination is supported by sufficient credible evidence in the record and is 'reasonable under the circumstances,' it will be upheld." Pls.' Brief at 34 (quoting Finger, 335 N.J. Super. at 445-46). However, the quoted language from Finger referred to whether a child's decision to attend a particular college was "reasonable under the circumstances," not the decision of a judge to allow a child to attend a high school (or even an elementary school). Finger, supra, at 445-46.
These cases, therefore, provide no support for Husband's contention that the judge erred in allowing the parties' oldest son to attend private parochial school - a matter the parties explicitly left to the judge in their agreement. Based on the judge's fact-finding regarding the child's desire to attend that school, and the advantages and athletic opportunities available to him there, we have no cause to disturb this ruling.
Husband also contends abuse of discretion in the judge's ordering Husband responsible for an additional, potential $15,000 in tuition per year, per child, should another child seek to also attend private school. However, the judge also allowed any payments made by Husband to that end to be "a dollar-for-dollar credit against his child support obligation." Beside the fact that the oldest child, a sophomore in high school at the time of trial and presumably a senior now, attended public school, Husband offers no legal argument against this order other than to again cite the irrelevant Hoefers factors.
AMERICAN EXPRESS GIFT CARDS
Husband contends that the judge failed to articulate reasons for not allowing a credit for half of the American Express gift cards. Specifically, he argues that the judge should have found that the gift cards were lost. However, the judge credited testimony that they were lost. Thus, the judge could not divine a monetary figure from which to apportion the value of the gift cards.
The judge addressed this issue in two sentences, and simply ordered that if the certificates are located, they are to be placed in the children's college funds. Because there was no evidence adduced that either of the parties possessed, lost or had spent them, we see no error in the judge not making any specific findings on this issue. The order that if they are found they be placed in the children's college fund was sufficiently dispositive.
Finally, Husband contends that the judge erred in awarding counsel fees by punitively awarding $53,934.90 in full payment of Wife's counsel fees. We conclude that the judge's decision was appropriate given the bad faith of Husband in failing to comply with court-ordered support.
N.J.S.A. 2A:34-23 provides that in addressing a fee application in a pendente lite action or final determination, the court "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." Rule 4:42-9(a)(1) allows for fees in pendente lite actions and final determinations in family actions pursuant to Rule 5:3-5(c). Rule 5:3-5(c), beyond allowing a court to make an award of counsel fees in a divorce proceeding, provides a list of factors a court "should" consider:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. [(emphasis added).]
Husband argues that the judge failed to follow a three-prong test. However, that test was superseded by Rule 5:3-5.
Here, the judge made the award of counsel fees explicitly in response to Husband's continued and wanton violation of the pendente lite order. The judge enumerated the Rule 5:3-5(c) factors and his findings for each. Of note, the judge focused on two factors: (3) good faith of the parties; and (8) the need for counsel to work to enforce existing orders. As to the good faith factor, the judge concluded that Husband had wasted a large amount of time on petty financial details, having already settled all issues of custody and most of equitable distribution. Husband's refusal to comply with the pendente lite order, and his frustration of the income withholding mechanism bore on the judge's analysis of the need for Wife's counsel to perform work requesting Husband's compliance with the order. In all, the judge fully examined all of the correct factors, expressed his reasoning clearly, and awarded full fees to Wife.
Summarizing, we reverse the denial of credits due to Husband based on direct payments of Wife's expense, and remand for a calculation of these credits. In all other respects, the judgment is affirmed. We do not retain jurisdiction.
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