On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-199-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Ostrer.
In this matrimonial matter, defendant Jack P. Poling appeals from the trial court's order denying his request for various forms of post-judgment relief, and the court's award to plaintiff Patricia M. Womer, his former wife, of relief on her cross-motion. We affirm in part, and reverse and remand in part.
The parties were married in June 1990 in New London, Connecticut. She was twenty-nine, and he was almost twenty-three. Defendant was employed by the U.S. Coast Guard. The parties have a daughter, born March 1991, and a son, born April 1994. The family moved from place to place following defendant's assignments. Ultimately, they resided in Dennis Township in Cape May County, while defendant was stationed at the Coast Guard Training Center.
The parties separated in 2009, and plaintiff filed a complaint for divorce in Cape May County on February 13, 2009. Defendant moved to Virginia in May 2009, after he was transferred to the Coast Guard Shore Infrastructure Logistics Center. He moved to dismiss the complaint for lack of jurisdiction, which the court denied on July 21, 2009.
Trial was held over two days in June 2010. The court entered a one-page final judgment of divorce (FJD) dated June 18, 2010, which incorporated the court's eight-page written opinion of the same date.*fn1 The FJD itself ordered the parties' cash accounts "split 50/50" with a payment to plaintiff of $7,257 in ten days; ordered $500 per week in alimony and $200 per week in child support through probation for the parties' teenage son who resided with plaintiff; and upon the sale of the marital home (which both parties had vacated by that time), ordered the proceeds be split equally, giving defendant credit for mortgage payments made before sale.
The remaining terms of the FJD must be gleaned from the written opinion. In the opinion, the court found plaintiff had established a cause of action. The court conclusorily stated, "All of the jurisdictional requirements have been met."
The court stated the only real issue at trial was support. The court imputed $30,000 in annual earnings to plaintiff, as she had earned roughly that amount as a title clerk before being laid off. The court held that defendant earned $10,416 a month, including base pay of $7,493, a housing allowance of $2,217, and a food allotment of $223. The court noted the housing and food allotments were tax-free.
After briefly reviewing the statutory factors for equitable distribution, the court concluded the "marital estate . . . should be split 50/50." The court addressed the marital home and cash accounts, but was silent about defendant's pension.
Turning to alimony, the court concluded "this is not a term alimony case." The parties had stipulated that the marital lifestyle was $5,690 a month. The judge noted that the parties' daughter lived near defendant and the parties' son lived with his mother while attending high school. The court conceded "there simply isn't enough money to go around" to replicate the marital lifestyle for both. The court concluded that the alimony of $500 a week, "after an application of the child support guidelines," would "roughly equalize the parties' net incomes" without taking into account the tax-free status of part of defendant's income.*fn2
The court addressed a tuition benefit defendant received as a Coast Guard member, in connection with the parties' obligation to support their children's college education.
Apparently that benefit can be used either for the children or for the defendant himself. Plaintiff's position was that in the event the defendant does not use it for himself that it be used for the children. That benefit if used for the children in the plaintiff's view would be considered as financial aid for the children and the parties' net college responsibilities split thereafter. The defendant's view appears to have been that assuming the benefit were used for the children that that would be part or all of his contribution. In the court's view assuming that neither of the parties is going into their pockets for a benefit that it is to be considered as a grant or scholarship and the parties' relative responsibilities for college expenses should be based upon the net obligation after application of any grants or scholarships such as this particular benefit.
As the excerpt indicates, the court did not expressly allocate responsibility for college expenses.
The court also stated it would make a "partial award of attorney fees for the plaintiff." The court ordered plaintiff's counsel to submit a certification within ten days. But, without reviewing that certification, the court ordered defendant to pay plaintiff half of those fees, whatever they were, within thirty days.
Neither the final judgment, nor the court's opinion, specifically addressed equitable distribution of defendant's pension, nor the procurement of life insurance to secure his alimony and child support obligation.
The judge invited the parties to submit written requests for clarification in the event of questions or "loose ends." No appeal was taken from the final judgment of divorce.
Sometime after entry of the final judgment, defendant retired from the Coast Guard. He said he did so to avoid involuntary separation. Defendant stated he had testified at trial that he was passed over for promotions and, in his view, faced involuntary separation "due to budget cuts and reduction in force."*fn3 Defendant stated he was passed over a second time - although the timing of that is unclear from the record. He explained, "Prior to the convening of an administrative discharge board, I retired due to the fact that I found a full time job with the federal government. I received my first retirement payment on November 1, 2010 in the amount of $4006." Defendant's new federal government annual salary was $105,211.
Shortly after defendant's retirement, plaintiff's counsel wrote to defendant in early November 2010 seeking his concurrence to entry of a consent order memorializing stipulations the parties allegedly entered on the record during the trial, but which had not been made in writing, nor memorialized in the FJD. The letter is not included in the record. However, based on defendant's counsel's reply, we infer that plaintiff claimed the parties stipulated that she would receive half of defendant's pension benefits accrued during the marriage. Plaintiff's counsel also apparently sought an order compelling defendant to obtain life insurance to secure his support obligations.
In a late November 2010 response, defendant's counsel asserted there was no agreement regarding insurance, but was willing to discuss the matter. Implicitly conceding an agreement regarding pension, counsel sought a reduction in defendant's alimony. He wrote, "Now that Mr. Poling was non-selectively retained and forced out of service there should be a deduction in his alimony payment to reflect the coverture fraction of her retirement interest."
On December 17, 2010, without formal motion, plaintiff's counsel wrote to the court to request a modification of the FJD to include the parties' alleged stipulations. She submitted a proposed form of order. Defense counsel objected.
The court conducted its own review of the record and issued a post-judgment order on January 27, 2011 that supplemented the terms of the FJD. The court found that plaintiff was to receive half of the marital portion of defendant's military retirement benefits, excluding the Thrift Savings Plan, using a coverture fraction, based on marriage between June 3, 1990 and February 13, 2009, the date of the complaint. Therefore, the court directed defendant to pay plaintiff $1,871.30 as her share of the parties' retirement accounts. Defendant was required to pay plaintiff directly her share of pension payments already received "if the military is unable to do so as the pension is currently in pay status."
The court also directed defendant to pay plaintiff $4,100 for her equitable share in the cash value of the parties' life insurance policies. The court further corrected the date of marriage reflected in the FJD to June 3, 1990. In a letter to the parties accompanying the order, the court wrote that the supplemental order was consistent ...