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Patricia Lenowitz v. Mark Lenowitz

November 29, 2012

PATRICIA LENOWITZ, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
MARK LENOWITZ, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-871-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 15, 2012 -

Before Judges Axelrad, Sapp-Peterson and Haas.

Plaintiff Patricia Lenowitz appeals, and defendant Mark Lenowitz cross-appeals, from certain provisions of an August 8, 2011 post-judgment order addressing alimony, child support, equitable distribution and other issues. We affirm, substantially for the reasons set forth in the written opinion of Judge James Guida, dated August 8, 2011.

I.

The facts and procedural history of this case are discussed in detail in the trial judge's opinion and need not be fully repeated here. The parties were married on February 14, 1994. They have two sons.

During the marriage, defendant provided the primary financial support for the family, earning substantial income as a financial trader. Between late 1995 and January 2002, he worked as an equity trader at Chelsea Capital and his income grew from $240,000 to $4 million per year. He lost his job in 2002, when "Chelsea Capital closed its doors." Defendant then started a hedge fund, which was not successful. He continued to trade, using family assets, and posted losses in 2004, 2005 and 2006.

Prior to the marriage, plaintiff worked in the finance department of a car dealership and as an executive assistant at a publishing company. During the marriage, she was employed for a time at a daycare center. Thereafter, she cared for the children.

On March 1, 2007, defendant was arrested and charged under federal law with securities fraud and insider trading, based upon his employment at Chelsea Capital. He pled guilty in July 2007, but his sentencing was postponed.

On October 12, 2007, plaintiff filed her complaint for divorce and the parties separated in December 2007. Pursuant to a December 15, 2008 consent order, the parties acknowledged that defendant had already paid plaintiff $45,000 as an advance on equitable distribution and he agreed to pay her $22,500 on March 1, 2009 in return for her promise not to seek alimony or child support prior to May 31, 2009.

The parties negotiated a property settlement agreement (PSA), which was incorporated into their December 15, 2008 Final Judgment of Divorce. Defendant had been unemployed since the time of his arrest and sentencing was still pending. Accordingly, the parties agreed not to address issues of alimony and child support until after the criminal charges were finally resolved.

The parties agreed to share joint legal custody of their children, with plaintiff acting as the parent of primary residence. With the assistance of a parent coordinator, they agreed the children would spend six out of every fourteen days with defendant. Although Judge Guida thereafter handled several post-judgment motions regarding parenting time, this provision of the PSA remained unchanged.

Under the PSA, the former marital home was to be sold and the net proceeds divided equally. Defendant continued to live in the home. Plaintiff used her equitable distribution advance to purchase a home for $790,000, after borrowing money from a friend to secure the balance of the purchase price. The remaining marital assets were divided in accordance with the PSA, with defendant "crediting back" over $300,000 to plaintiff for the monies he forfeited to the federal government after his conviction for insider trading. In total, plaintiff received in excess of $1 million in money and assets in equitable distribution.

The PSA directed the parties to divide their personal property, either by "amicably agree[ing]" on the distribution or by taking turns selecting items they wanted "from an agreed upon list." The division of property was to have been completed by January 15, 2009.

A series of post-judgment applications on support issues were filed by the parties and Judge Guida entered orders resolving them. On August 14, 2009, the trial judge ordered defendant to pay plaintiff $37,500 in lieu of alimony or child support for the period between June 1, 2009 and October 31, 2009. A July 12, 2010 order required defendant to pay plaintiff $288 per week in pendente lite alimony and $95 per week in child support, effective February 1, 2010. In total, plaintiff received $120,000 in unallocated support.

Eventually, defendant was sentenced to three years probation, conditioned upon six months of house arrest. As the result of his conviction, defendant "is barred from trading in securities, except for his own personal funds."

Because defendant had been sentenced, the postponed issues of alimony and child support could now be resolved. Judge Guida conducted a plenary hearing on five, non-consecutive dates between February 14, 2011 and April 27, 2011. At the conclusion of the hearing, the judge issued a twenty-five page written opinion.

Based upon the parties' testimony, and that of defendant's vocational expert, Dr. Charles Kincaid, the judge imputed $85,000 in annual income to defendant and $30,000 to plaintiff. After considering all of the statutory alimony factors, as required by N.J.S.A. 23:34-23(b), the judge granted plaintiff $385 per week in permanent alimony. He calculated child support under the Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules 2012, Appendix IX-A (the Guidelines), which resulted in plaintiff being granted $110 per week in child support. The judge found there should be no further division of the parties' personal property and he required plaintiff to pay $5,000 toward defendant's counsel fees.

II.

On appeal, plaintiff has raised the following points for our consideration:

POINT ONE

THE TRIAL COURT FAILED TO ENFORCE THE PLAIN LANGUAGE OF THE PARTIES' PROPERTY ...


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