D.P.G. v. L.G.No. A-1750-10T2.
Superior Court of New Jersey, Appellate Division.
Argued October 11, 2011.
Decided September 6, 2012.
Jason C. Tuchman argued the cause for appellant (Cohn Lifland Pearlman Herrmann & Knopf LLP, attorneys; Mr. Tuchman, of counsel and on the brief; Julie L. Kim, on the brief). Donna J. Vellekamp argued the cause for respondent (Ms. Vellekamp, attorney; Ms. Vellekamp and Sandra W. Moss, on the brief).
Before Judges A. A. Rodríguez, Ashrafi and Fasciale.
NOT FOR PUBLICATION
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
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
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
On the issue of the missing American Express gift cards, the judge ordered that if found, they were to be allocated to the children's college funds. In addition, the judge granted Wife twelve years of limited duration alimony. The judge based the decision on the length of marriage, the Wife's future employment potential, and Husband's employment history, including an income of nearly $400,000 in 2008. The judge viewed the parties' lifestyle as more modest than Husband's income may have provided for.
In setting the spousal support obligations, the judge considered the factors specified in
Because Husband's income was in excess of $187,200, the judge recognized that the Child Support Guidelines were not an appropriate guideline. The calculation was then made applying the Child Support Guidelines up to $187,200 and supplementing that amount based on factors in
The judge ordered that the spousal child support obligations be protected through mandatory maintenance of the parties' current insurance policies. Husband holds life insurance policies with a $1.3 million benefit; Wife holds one in the amount of $400,000. Wife and the children were to be the primary beneficiary of Husband's policy to the extent of their interest until their emancipation. The children were the beneficiaries of Wife's policy with the same interest. Both parents were made trustees of the other's policies for the benefit of the children. Husband was also ordered to maintain his present disability policy.
Finally, the judge awarded counsel fees. The judge ordered Husband to pay $53,934.90 to Wife's counsel — the balance of her fee application — applying the factors in
On appeal, Husband contends that the judge erred by: (a) not crediting his direct payments; (b) calculating the alimony and child support obligations; (c) ordering the parties' oldest son could attend private school; (d) failing to find that the American Express gift certificates were lost; and (e) awarding counsel fees to Wife.
On general issues of fact finding by a judge, such findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," unless the reviewing court is "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice."
"Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding."
DIRECT PAYMENT CREDITS CONTENTION
Husband argues that the judge erred in failing to credit his arrearage for the value of direct payments made by Husband for various loans, mortgages, utilities, and the children's activities, despite concessions by Wife on some of those expenses. We agree.
Husband requests credits totaling $102,581.51. This figure is arrived at from most of the same figures set forth in the judge's opinion. However, the judge's rendering of these figures does not entirely track the certifications provided to the judge. For example, much of Husband's request in his final June 2010 certification is inexplicably left out.
It is undisputed that Husband did not follow the July 14, 2009 order requiring him to pay $10,000 per month to probation. However, although he essentially ignored that order, he did make a number of direct payments on Wife's behalf for a variety of expenses intended by the judge to be covered by Wife's use of the funds Husband was to have deposited with probation. On repeated occasions, the judge reiterated that Husband's actions were not acceptable. At one point during the trial, the judge intimated that Husband would wind up in jail if he continued to ignore the judge's order.
Husband filed a number of certifications reciting his payments and provided evidence of payments made. Wife acknowledged these payments and conceded that Husband should receive credit for some payments. Husband made a few payments to probation, but was left with arrearages over $100,000. In his final opinion, the judge recited these facts and agreed with the Wife that only $27,620 should be allowed against Husband's support arrears. The judge also made the following observation:
We conclude that the judge erred in failing to credit Husband for the substantial amount of direct payments he made, especially on items that Wife conceded. Thus, we remand for an adjustment of the Husband's arrearages to reflect the proper amount of credits.
Husband raises three points in respect of the judge's award of alimony. First, the income findings were not supported by evidence. Second, the double counting for alimony purposes of dividends or distributions from Husband's tracking shares — which are now split between him and Wife — was not taken into account by the judge. Third, the judge failed to make sufficient fact-finding regarding why Husband must continue to shoulder the entirety of his disability insurance without any offset in his support payments.
IMPUTATION OF HUSBAND'S INCOME
Husband argues that the judge abused his discretion by finding for support calculation purposes that Husband's annual income was $400,000. Rather, Husband posits that in his best year, 2008, he earned a base salary of $216,288.90 plus a bonus of $100,000. Because this bonus is not guaranteed, and Husband has no control over whether it is issued or how much it will be, he believes that the judge erred in assuming that it will be $100,000 each year. Additionally, because his monthly net pay is only $10,257.35, the $10,000 per month alimony payment leaves him with less than $300 to pay child support and his own expenses. Also, Husband's multiple sclerosis muddies the future. Moreover, the judge should have looked at the last three or five years of salary, rather than the one in which he earned the most, as his total income has declined each year since 2007 owing to the recession's impact on the catering industry. Finally, the judge relied on a mistaken transposition of numbers in the Husband's 2008 tax return, $361,289, instead of the figure reported by his employer, $316,289.
Here, the judge expressly listed and made findings of fact for each of the statutory factors. Additionally, the judge discussed Husband's income history in making the alimony determination. The judge examined nine years of Husband's income from 2001 to 2008. For the year 2008, that total was recorded as $316,288.90. The judge also considered distributions Husband received from his tracking shares. The value of this distribution was considered to be "substantial additional income" that brought his 2008 income close to $400,000. Although the judge did not enumerate the value of these shares anywhere in his decision, such evidence was adduced at trial through testimony by Husband's employer and discussion of the details of tax returns by both parties. Moreover, it appears that Husband can control the year in which the distributions from these shares are made to him. He testified that he has in the past delayed receipt of the distribution for tax purposes.
We add that
Husband's remaining contentions on this issue are flawed. He cites
Regarding the number transposition issue, we denied Husband's motion to supplement the record to include his 2008 W-2 statement. There was conflicting evidence in the record on the issue of whether husband's income was $316,000 or $361,000, and we find no basis for disturbing the judge's ultimate conclusion.
DOUBLE COUNTING HUSBAND'S COMPENSATION
As part of the equitable distribution of the marital property, the parties agreed to split the shares, with Wife receiving equitable title to 400 shares. Thus, when the distribution is made, Wife will receive a pro rata portion of the income. Husband argues that when calculating support income, it was error for the judge to include the full value of the tracking shares because Husband will only receive income for half. We understand the argument, however we do not reverse the judge's decision on this issue. The amount of additional tracking shares income attributed to husband by the judge ($16,000) is not substantial in comparison to Husband's total imputed income ($400,000). The difference is about four percent of Husband's 2008 income. In short, this difference is not so significant as to affect substantially the judge's discretionary decision to award $10,000 per month limited duration alimony.
HUSBAND'S DISABILITY INSURANCE
Husband argues he should not be forced to continue to pay the approximately $500 monthly premium for his disability insurance because, besides his children, Wife is a beneficiary of the policy. The judge's decision was supported by a finding that the disability insurance is vital, as Husband's multiple sclerosis is certain at some point to render him unable to work. Thus, the order to continue the policy was necessary to ensure payment of alimony and child support.
The judge's treatment of Husband's disability policy consisted of the following: "[D.P.G.] shall maintain in full force and effect his present policy of disability insurance." It appears in a section of the decision labeled, "Insurance," which notes that Husband has agreed to maintain his life insurance in order "[t]o secure the alimony and child support obligations set out above...." Reading the rest of the section with that goal in mind implies a finding that Husband's maintenance of his disability insurance was necessary to achieve that end.
Husband testified that he was lucky to have such insurance, as he had purchased the policy only a few years before his diagnosis with multiple sclerosis. Because he could not now get another one, and a missed payment would result in him losing the policy, the judge determined that his maintenance of it was essential. That determination was not an abuse of discretion given the testimony received in evidence and related in other parts of the judge's decision.
Husband contends that the judge misapplied the Child Support Guidelines by failing to properly state the parties' incomes on the worksheet. Also, Husband challenges the judge's order for an additional $5,000 per child per year in additional child support beyond that calculated pursuant to the Guidelines because the judge failed to make specific findings thereof. We conclude that this argument lacks substantive merit because the manner in which the judge made the calculations would have the same result as the way the Husband charges it should have been done.
CHILD SUPPORT GUIDELINES
Here, the judge found that Husband had an income of $400,000 and imputed to Wife an income $43,000. Instead of using these exact figures for the income portions, and the $120,000 of alimony on Line 1c, the judge added the alimony to Wife's imputed income, making it $163,000, and left Husband's income at $187,000 — creating two weekly incomes which at first glance look wrong. The arithmetic works out to be the same for the Wife's side of the ledger. Husband's side of the ledger, however, results in a smaller amount of support owed than if the judge had used the $400,000 figure because the judge left it at the guideline maximum. Pursuant to the method urged by Husband for the first worksheet the court provided, the result is an Adjusted Child Support Obligation for Husband of $257.64. The judge's method result is $175. No matter the methodology, the resulting obligation generated by the worksheet reflected the top of the guidelines and was within the discretion of the judge to calculate.
The judge also provided three different worksheets to reflect the fact that one child, the parties' daughter, was estranged from him and as such had no overnight visits. This was the substance of the judge's Second Amended Opinion. The judge explained:
It is clear that Husband's contention in this regard is without merit. The judge used the discretion provided in the
Husband argues the judge erred by failing to apply the factors in
After making the initial child support determination pursuant to the guidelines, the judge awarded an additional annual amount of $5,000 for each child. This amount is to be placed in the parties' children's established college savings accounts. Another $15,000 was ordered to be paid for the parties' older son to attend private parochial school.
Here, in discussing the child support award, the judge recited that he had reviewed most of the statutory factors earlier in the opinion. Although he did not enumerate the factors as he did for other issues in other portions of the opinion, the
Husband also contends that the judge failed to consider factors laid out in
Here, although the judge did not apply these factors — indeed, some are not even applicable — his discussion of the award of additional child support contains sufficient findings of fact to address the overlap with the statutory factors. Moreover,
CHILDREN'S ATTENDANCE AT PRIVATE SCHOOL
Husband also contends that the judge erred in deciding that the children could attend private schools. Husband argues that the judge failed to perform a multi-factor analysis required pursuant to case law before ordering he pay $15,000 annually to send one child to private, parochial school. We disagree.
To make this argument, Husband applies an inapposite case through misreading another. Husband first cites
These cases, therefore, provide no support for Husband's contention that the judge erred in allowing the parties' oldest son to attend private parochial school — a matter the parties explicitly left to the judge in their agreement. Based on the judge's fact-finding regarding the child's desire to attend that school, and the advantages and athletic opportunities available to him there, we have no cause to disturb this ruling.
Husband also contends abuse of discretion in the judge's ordering Husband responsible for an additional, potential $15,000 in tuition per year, per child, should another child seek to also attend private school. However, the judge also allowed any payments made by Husband to that end to be "a dollar-for-dollar credit against his child support obligation." Beside the fact that the oldest child, a sophomore in high school at the time of trial and presumably a senior now, attended public school, Husband offers no legal argument against this order other than to again cite the irrelevant
AMERICAN EXPRESS GIFT CARDS
Husband contends that the judge failed to articulate reasons for not allowing a credit for half of the American Express gift cards. Specifically, he argues that the judge should have found that the gift cards were lost. However, the judge credited testimony that they were lost. Thus, the judge could not divine a monetary figure from which to apportion the value of the gift cards.
The judge addressed this issue in two sentences, and simply ordered that if the certificates are located, they are to be placed in the children's college funds. Because there was no evidence adduced that either of the parties possessed, lost or had spent them, we see no error in the judge not making any specific findings on this issue. The order that if they are found they be placed in the children's college fund was sufficiently dispositive.
Finally, Husband contends that the judge erred in awarding counsel fees by punitively awarding $53,934.90 in full payment of Wife's counsel fees. We conclude that the judge's decision was appropriate given the bad faith of Husband in failing to comply with court-ordered support.
Husband argues that the judge failed to follow a three-prong test. However, that test was superseded by
Here, the judge made the award of counsel fees explicitly in response to Husband's continued and wanton violation of the
Summarizing, we reverse the denial of credits due to Husband based on direct payments of Wife's expense, and remand for a calculation of these credits. In all other respects, the judgment is affirmed. We do not retain jurisdiction.
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