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Eileen M. Podlas v. James J. Podlas

November 14, 2012

EILEEN M. PODLAS, PLAINTIFF-RESPONDENT,
v.
JAMES J. PODLAS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1460-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 28, 2012

Before Judges Axelrad and Sapp-Peterson.

Husband appeals from various rulings in his matrimonial dissolution trial and the final judgment of divorce (FJOD) entered which, among other provisions, ordered that the parties share equally in husband's pension. We affirm.

The parties were married in 1970 and have three adult children. They separated in 2008. At the time of the trial in December 2010, husband was sixty-three years old and wife was sixty-one years old. Husband is an attorney employed by the Maryland Public Defender and earns approximately $68,744 annually. He has been practicing law since 1981 and, within two years of his admission to the bar, opened his own firm. His private practice was successful during the 1980s, but by the late 1990s, the parties developed financial problems, which ultimately forced them to sell their marital home and a vacation home. In early 1999, the parties filed a joint Chapter 7 bankruptcy petition. During their forty-year marriage, wife earned no more than $16,000 and, at the time of the trial, was living in the basement of her daughter's home*fn1 in Short Hills, helping her daughter, a stay-at-home parent, with her daughter's three young children.

In addition to the financial problems the couple faced in the 1990s, husband also experienced significant heart problems that led to open heart surgery. In 2002, husband learned from his doctors that several of the heart bypasses were not functioning. In light of this information, the couple decided to semi-retire. Husband closed his law practice and the couple moved to Maryland. They erected a modular home and husband obtained his current employment as a public defender. The couple's financial problems continued and the couple mortgaged their Maryland home in order to satisfy the balance of their IRS obligations.

The couple had been experiencing marital problems for quite some time and, in early December 2008, wife returned to New Jersey and commenced living with her daughter, whose husband is a vice president at J.P. Morgan/Chase. All of wife's expenses have been assumed by her daughter and son-in-law.

The first case management conference was conducted on July 8, 2010 before Judge Thomas P. Zampino. Although both parties were directed to appear, wife failed to appear and failed to respond to her attorney's attempt to contact her. Wife's attorney learned from husband that wife was vacationing with her daughter and her daughter's family. The judge conducted the proceeding in her absence. However, her attorney was unable to answer any questions from the judge related to the year wife last worked and whether she had sufficient quarters to obtain social security. When wife's attorney told the judge that wife last worked at Head Start, husband interjected, "That's incorrect." The judge admonished husband not to interrupt. The judge then engaged in a colloquy with husband, learning he was sixty-two years of age. The judge commented that wife, who was almost sixty-one years of age, could take early social security in about a year, and based on the parties' income levels and length of marriage, husband would be obligated to pay her permanent alimony. He further noted that if and when husband retired, it would be a consideration as to whether that would constitute a change of circumstances. He asked husband several times whether he understood, and husband responded in the affirmative.

Judge Zampino also addressed equitable distribution. The judge advised husband that an antique vehicle purchased during the marriage and his pension from his current employer would be subject to equitable distribution.

The next case management conference occurred on November 4, 2010, but in the interim, husband had filed two motions, one seeking severance of his Tevis*fn2 counterclaim and the other seeking Judge Zampino's recusal. The judge explained to husband it was unnecessary to file a motion to separate the Tevis claim because at the conclusion of the trial, if the Tevis claim is not resolved, then he would "give a [thirty-]day window . . . to file your complaint in the [C]ivil [D]ivision." Turning to the recusal motion, the judge inquired of husband the nature of the application. Husband advised the judge that the motion was based "on the procedures so far in this matter, particularly those at the first case management conference[.] I think that Your Honor has prejudged the issues here without hearing the evidence and is prejudiced in favor of the plaintiff." Judge Zampino denied the motion, stating he had no independent recollection of the earlier proceeding but he did not believe he had "drawn any conclusion[.]"

Prior to trial, on February 12, 2010, wife submitted a Case Information Statement (CIS) in which she listed her monthly expenses as totaling $275. Trial commenced on December 8, 2010. Over husband's objection, the judge permitted wife to testify about her monthly budget, which she testified was prepared with the assistance of her daughter. According to wife, her monthly budget was approximately $2000.

The judge also precluded husband, during wife's cross-examination, from eliciting testimony relative to her individual Chapter 7 bankruptcy petition filed in 2009. Husband claimed that in the petition, wife answered, "No," to the question whether she had any present or future interest in pensions, alimony, maintenance or support. Husband maintained this evidence was relevant to wife's claim for alimony and equitable distribution, which was contrary to what husband contended was their agreement, that wife would waive alimony and any claimed entitlement to husband's pension. Judge Zampino disagreed, noting that at the time wife filed her bankruptcy petition, there was, in fact, no pending action for alimony or equitable distribution.

The judge also refused to permit husband to introduce a series of documents wife authored that addressed her employability, education and skills, which was four years old, and which the judge found was too remote to be relevant. Husband pointed out that the document related to wife's educational background, and the judge questioned husband as to whether there was any evidence to dispute that wife had some college credits. Husband produced no such evidence, but pointed out that wife had been a licensed social worker, a certified domestic violence specialist, and had been a member of the executive board of the New Jersey Coalition for Battered Women. Notwithstanding wife's qualifications, husband was unable to produce any ...


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