On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-295-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2012
Before Judges Messano and Lihotz.
Plaintiff Joel Dougherty seeks to vacate the equitable distribution provisions of a Judgment of Divorce (JOD) entered on June 10, 2011. Plaintiff maintains discovery was improperly restricted, the trial judge's factual findings were not supported by the evidence of record, and, for the first time on appeal, argues the trial judge abused her discretion in refusing to recuse herself based on a prior work association with defendant's counsel. We agree the trial judge abused her discretion in denying plaintiff's discovery motion seeking documentation of defendant's bank accounts and erred in her determinations supporting the equitable distribution of the retirement assets titled to defendant Katherine Dougherty and the allocation of tax liabilities. Consequently, the provisions in the JOD on these issues must be vacated and subject to further proceedings on remand by a different Family Part judge. In all other respects, we affirm.
The parties were married on September 12, 1992, and have one child, adopted during the marriage. They separated on June 1, 2009, and plaintiff initiated this matrimonial action on January 8, 2010, alleging irreconcilable differences; defendant counterclaimed, also alleging irreconcilable differences.
Following case management, discovery was ordered to be completed by July 9, 2010. Thereafter, plaintiff moved to enforce discovery, which the trial judge granted, ordering the exchange of "information regarding retirement, 401(k) plan, annuity plan, savings plan, profit sharing plan, and deferred compensation plan . . . from 2006 to the present[.]" Trial was held over four non-consecutive days from September 13, 2010, to January 27, 2011. Each of the parties testified and presented documentary evidence. Defendant was represented by her brother, an attorney, and plaintiff elected to be self-represented.
Plaintiff started his testimony by outlining his position, including that he had no responsibility for an outstanding $18,000 tax bill from 2006, which allegedly resulted from defendant's premature withdrawal of her retirement assets, including the sums he asserted defendant wrongfully withdrew. Plaintiff also argued defendant failed to file an updated case information statement and to produce information regarding requested financial information, including a bank account. The trial judge ordered plaintiff and defense counsel to exchange "trial notebooks" containing proposed trial exhibits.
Following trial, the judge dismissed plaintiff's complaint for failure to prove his cause of action, but granted defendant's counterclaim for divorce; fixed child support and related obligations regarding the parties' child; denied defendant's claims for rehabilitative alimony; denied defendant's request for an award of counsel fees; and equitably allocated marital assets and debts. On appeal, plaintiff's challenges concern only those portions of the JOD dedicated to resolving equitable distribution of the parties' automobiles and personal property and defendant's withdrawals from her pension and 401(k) accounts, along with the obligation to pay any accompanying tax consequences.
In her written decision, the trial judge included the following factual findings:
During the marriage, the parties had joint [bank] accounts from 1992-1995. Thereafter and until separation, the parties maintained separate accounts.
The parties have a 2001 Chevy Blazer. There is no loan on said vehicle. Plaintiff also owns two motorcycles, a 1994 Suzuki Intruder at a value of approximately $1,000 and a 2001 Yamaha at a value of approximately $3,000. There are no loans on these motorcycles as well. Defendant owns a 2006 Toyota Rav 4, which has an outstanding [loan] balance of approximately $7,000.
The parties dispute their financial liabilities. Concerning taxes, both parties acknowledge that it was customary for plaintiff to provide defendant with copies of his W-2 forms and defendant would prepare and file joint taxes. Plaintiff claims . . . he . . . filed his own taxes when the parties were separated. Both parties acknowledge that during the last five to seven years, defendant filed joint tax returns.
Regarding the tax years 2006 through 2008, which are in dispute, both parties agree that plaintiff provided the appropriate tax information to defendant. The [c]court notes that the parties were residing together between 2006 and 2008. However, defendant did not file taxes for tax year 2006 through 2008. Defendant claims she could not file taxes in a timely manner, as the adopted child was not yet issued a social security card. The minor child's social security card was issued on or about March 11, 2008. Defendant hired an accountant to file taxes for the 2006, 2007, and 2008 years [who] . . . filed joint taxes on behalf of the parties. Taxes for 2006 were filed on October 23, 2009. Taxes for 2007 were filed on October 23, 2009. Taxes for 2008 were filed on November 18, 2009.
Subsequently, plaintiff hired an accountant . . . [who] re-filed 2006 taxes as "married filing jointly." On March 26, 2010, plaintiff's accountant re-filed 2007 and 2008 taxes as "married filing jointly." As a result the parties incurred tax consequences.
Each of the parties had acquired retirement assets during the marriage. The judge found plaintiff's account had a value of $36,528.37 as of November 16, 2009. Although not specifically stated in her written findings and conclusions, the trial judge appears to have accepted defendant's testimony that she liquidated her two retirement assets -- a "Cash Annuity Account," and a Prudential Employee Savings Program, referred to as a 401(k) account -- ...