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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...