J.P. VS. M.P. (FM-18-0919-18, SOMERSET COUNTY AND STATEWIDE)

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0053-19T4

J.P.,1

          Plaintiff-Respondent,

v.

M.P., n/k/a M.K.,

     Defendant-Appellant.
__________________________

                    Submitted October 20, 2020 — Decided October 29, 2020

                    Before Judges Haas and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Somerset County,
                    Docket No. FM-18-0919-18.

                    Fox Rothschild LLP, attorneys for appellant (Eric S.
                    Solotoff, of counsel and on the briefs; Lindsay A.
                    Heller, on the briefs).

                    Pamela M. Cerruti, attorney for respondent.

PER CURIAM


1
     We utilize initials to protect the parties' privacy.
      Defendant M.K., formerly M.P., appeals from a June 19, 2019 dual final

judgment of divorce entered following a trial, and challenges an August 9, 2019

order denying her motion for reconsideration. We affirm.

      Judge Haekyoung Suh tried this matter during three days in May 2019, in

which one-hundred and twenty-seven exhibits were admitted into evidence. The

judge noted defendant had retained and terminated four attorneys, and

interviewed fifteen attorneys in person and eighty-five by telephone, yet

defendant tried the case herself having retained counsel to serve only as a

consultant.

      Judge Suh also handled the matter pendente lite and entered a January 18,

2019 order adjudicating defendant's motion for pendente lite support. Defendant

filed the motion herself and retained an attorney to argue it. The judge denied

defendant's request that plaintiff pay her direct pendente lite support and made

the following findings:

                     The parties establish[ed] the marital status quo
              was maintained through joint access to marital accounts
              in which monies from plaintiff's base salary and hefty
              annual bonus were placed. Each party has now
              transferred a significant portion of this money to their
              personal accounts. They can carry on as they did during
              the marriage, each now with access to the same money,
              but in their respective personal accounts.



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                                         2
                  Further, with defendant having access to
            $540,000 in her personal account, she fails to
            demonstrate a need for pendente lite support. On top
            of the $540,000 . . . , she also received a $[2000] line
            of credit per month on an American Express Card . . .
            to fund her and the children's expenses.

                  To the extent the parties consume these funds,
            [they] may file motions to liquidate additional assets to
            meet their needs . . . .

The judge restrained the joint brokerage and savings accounts and ordered

plaintiff to "use the funds he transferred to his personal account, his base-salary

wages, and upcoming bonus monies to pay the bills of the house." Specifically,

the judge ordered plaintiff to pay the "utilities, property taxes, lawn care, home

security system, car      insurance, medical insurance, dental insurance,

homeowner's insurance and the children's extracurricular expenses." The trial

occurred four months after entry of the pendente lite order.

      At the outset of her written decision, the judge addressed the parties'

credibility. She found plaintiff more credible than defendant, noting defendant's

testimony was inconsistent and she filed inaccurate Case Information

Statements (CISs) claiming the joint marital expenses as her own. The judge

found the CIS defendant relied upon at trial "undermined her credibility" and a

CIS she filed one month before the trial "unreliable."



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                                        3
      The parties cohabitated before the marriage and were married for nearly

twenty years at the time plaintiff filed the complaint for divorce i n May 2018.

Four children were born of the marriage who were unemancipated. Because of

defendant's issues with alcohol, which led to a DUI conviction and mental

instability, plaintiff received custody of the three younger children. The eldest

child had a fractured relationship with plaintiff and remained with defendant

pendente lite before leaving for college in Fall 2019. Ultimately, the judge

awarded the parties joint legal and physical custody, and set an alternating week

parenting schedule for the three younger children requiring plaintiff to transport

them for parenting time until defendant's license was restored.

      The parties were relatively young at the time of trial; plaintiff was forty -

six and defendant was forty-eight years of age. The judge found plaintiff was

the breadwinner, earning a gross income of $1,933,404 in 2018, which

comprised of a base salary, bonus, and equity awards. His 2018 net income was

$1,079,733, and his net earned income was $44,347 per month. Defendant was

a homemaker throughout the marriage. The judge concluded the parties enjoyed

"an upper class standard of living during the marriage," characterized by

ownership of a $1.4 million mortgage-free marital home, ownership of three

vehicles "paid without financing," membership at a country club enjoyed by


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                                        4
plaintiff, and "[d]efendant['s] regular[] purchas[es of] luxury shoes and

shop[ping] incessantly, buying clothes, belts and jewelry." The judge credited

plaintiff's testimony that the family budget was $27,848 per month or $334,176

per year and the children's share of the expenses was $87,410 per year.

      Weighing the N.J.S.A. 2A:34-23.1 statutory factors, the judge ordered an

equal equitable distribution of the marital assets, which totaled in excess of $10

million as of the date of complaint. The judge ordered defendant could continue

to reside in the marital residence and bear its expenses until the youngest child

graduated from elementary school, when the residence would be sold, and the

proceeds divided equally. The judge ordered plaintiff to retain a 2016 Jeep

Grand Cherokee and transfer title to a 2011 Chevrolet Suburban operated by

defendant to her, in addition to a 2018 Jeep Grand Cherokee operated by the

parties' son. The judge ordered defendant's diamond stud earrings and Cartier

bracelets sold and the proceeds equally divided because "[n]either party wished

to retain" them.

      The judge considered the N.J.S.A. 2A:34-23(b) statutory factors and

awarded defendant non-taxable limited duration alimony for thirteen years and

four months of $13,195 per month. The judge found plaintiff and the three




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                                        5
younger children had needs of $33,168 per month, leaving a surplus of $11,179.

The judge noted each party would

              walk away from the marriage with over four million
              dollars and no liabilities. . . . While the parties derive
              income through investment of assets, only plaintiff has
              the skill to create more wealth. Defendant has no
              ability to invest money and once she receives her
              equitable distribution, she will not know how to make
              her investments grow without a financial advisor.

The judge also noted the "court denied pendente lite support since defendant had

transferred over $500,000 from the parties' joint . . . [b]ank account into accounts

she exclusively controlled. Plaintiff however continued to pay the Schedule A

expenses, including the 2018 taxes from his personal account since the court

froze the [parties' brokerage account]." 2

        Addressing defendant's needs, the judge noted

              [d]efendant requested half of plaintiff's income going
              forward. Her most recent self-prepared CIS is bloated
              and lacks credibility. To set the appropriate amount of
              alimony the court relies on the statement of expenses
              set forth in plaintiff's most recent CIS and defendant's
              July 19, 2018 CIS, which was prepared with the
              assistance of counsel.

The judge reduced defendant's Schedule A expenses because certain line items

were either unexplained or not necessary "given the excellent condition of the


2
    The record reveals the parties owed federal taxes of $127,610 for 2018.
                                                                            A-0053-19T4
                                          6
former marital residence . . . ." She also reduced defendant's Schedule B

expenses by $4200 "for a car payment she does not have" and because defendant

would be operating the 2018 Jeep, which did not require repair, and "the

Suburban . . . will likely be junked." The judge stated: "Defendant claims she

needs $38,031 per month to cover her Schedule C expenses. Many of her line

items are unsupported, inflated, redundant, exaggerated, or incorporated into

child support." Regarding certain Schedule C expenses, the judge commented

"[i]t is undisputed that defendant did not participate in golf club memberships

or sports during the marriage[.]" The judge "trim[med] defendant's . . . Schedule

C expenses so they align with the reasonable standard of living during the

marriage and, where applicable, match plaintiff's reported expenses." Notably,

the judge's Schedule C analysis included a savings component for defendant

equivalent to the entire sum that plaintiff's CIS indicated the parties set aside as

savings per month during the marriage.

      The judge concluded defendant did not require permanent alimony

because of the length of the marriage, the parties' relatively young ages, the

"tremendous savings cushion" created by the "over $4.5 million" in equitable

distribution defendant would receive and because "[d]efendant can begin




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                                         7
drawing on her significant retirement assets, including 401(k) and IRAs when

she turns [sixty-two]" at the conclusion of the limited duration period.

      The judge calculated child support using the Child Support Guidelines,

designating defendant the parent of primary residence, and thereafter reduced

child support to account for the parties' shared controlled expenses , which

yielded a figure of $340 per week. Then the judge applied the statutory child

support factors and increased the child support because of "the children's

extensive expenses as detailed by plaintiff's testimony . . . and the great disparity

in the parties' earning capacities[.]" She noted "[p]laintiff proposed that the

parties be responsible for the total $87,410 child support expenses in the

proportion of [seventy-five percent] plaintiff and [twenty-five percent]

defendant." However, according to the guidelines, the judge found plaintiff's

proportionate share of the income to be eighty-five percent and added $1140 per

week for a total child support figure of $1480 per week. Although the children

each had more than $100,000 in their respective 529 accounts, the judge ordered

plaintiff to cover "100% of any" uncovered college expense.

      Each party sought counsel fees. The judge denied the requests and noted

defendant failed to submit a certification of services.




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                                         8
      Each party filed a motion for reconsideration of the final judgment. The

judge granted plaintiff's and denied defendant's motion. Relevant to this appeal,

the judge reduced alimony to $12,845 per month because the figure set at trial

included the children's orthodonture expenses.      Defendant, represented by

counsel, filed a new CIS, and also sought reconsideration of the alimony award

arguing the savings component was inadequate and that the alimony did not

allow her a standard of living comparable to plaintiff. Defendant requested the

limited duration be extended to eighteen years and eleven months, and also

sought rehabilitative alimony. The judge denied defendant's requests for the

same reasons she explained in the trial decision and rejected defendant's request

for rehabilitative alimony "[d]ue to the reservations expressed by defendant in

following through with employment and educational programs, and the times at

which defendant contradicted herself stating she wishes to be a full-time

mother."

      The judge also granted in part plaintiff's motion to reconsider the child

support. Plaintiff argued the parties' eldest child was above the guidelines age.

The judge agreed and recalculated the guidelines using the three younger

children, applying the same methodology expressed in the trial decision, which

reduced the guidelines support amount to $306 per week. The judge also


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                                       9
adjusted the child support by deducting the expenses for the 2018 Jeep holding

"defendant [is] solely responsible for any payments related thereto, now being

the owner of that vehicle[, and that t]hese Schedule B expenses were already

included in her alimony award."          The judge concluded the children's

supplemental expenses were $81,610 and after deducting the guidelines level

child support, plaintiff's eighty-five percent share of the remaining expenses was

$55,843.30 per year, or $1074 per week, for a total weekly child support

obligation of $1380.

      Defendant also sought reconsideration of the child support arguing it did

not include the country club membership, school lunches, spending money,

gifts, and travel expenses for the parties' eldest child. The judge rejected the

argument, noting child support was calculated based on information provided in

plaintiff's testimony and

            defendant offered only a defective CIS at the time. . . .
            [Regardless, t]he court considered club and camp fees
            during the initial calculations . . . but declined to
            incorporate those costs without any proof as to the
            actual expenses incurred. Defendant failed to offer that
            proof at the time of trial when she had the opportunity.
            In any case, she again fails to provide such proof.

      Defendant also sought reconsideration of the decision to sell and split the

proceeds of the diamond earrings and Cartier bracelets, and instead sought to


                                                                          A-0053-19T4
                                       10
keep the items. The judge denied the motion, finding defendant testified she did

not wish to retain the jewelry.

      Defendant raises the following arguments on appeal:

            POINT I

            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S REQUEST FOR PENDENTE LITE
            SUPPORT AND ORDERING MINIMAL LIMITED
            DURATION ALIMONY, REQUIRING HER TO USE
            MARITAL ASSETS FOR SUPPORT IN LIEU OF
            PLAINTIFF'S SUBSTANTIAL INCOME.

                   A. CONTRARY TO N.J.S.A. 2A:34-23(C), THE
                   TRIAL   COURT'S   ALIMONY       AWARD
                   PROVIDES PLAINTIFF WITH A SUPERIOR
                   ABILITY TO MAINTAIN THE MARITAL
                   STANDARD OF LIVING AS COMPARED TO
                   DEFENDANT WHILE DISREGARDING ITS
                   OWN FACT FINDINGS AS TO MARITAL
                   LIFESTYLE.

                   B. THE TRIAL COURT'S FAILURE TO
                   INCLUDE PLAINTIFF'S PRESENT INCOME
                   IN  THE   ALIMONY     CALCULUS   IS
                   REVERSIBLE ERROR.

                   C. THE TRIAL COURT'S AWARD OF
                   LIMITED      DURATION      ALIMONY
                   CONSTITUTES    REVERSIBLE    ERROR
                   FOLLOWING A MARRIAGE THAT WAS
                   [NINETEEN] YEARS AND OVER [TWENTY]-
                   YEAR RELATIONSHIP OF FINANCIAL
                   DEPENDENCY.



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                                      11
D. THE TRIAL COURT FAILED TO PROVIDE
DEFENDANT      WITH     A    SAVINGS
COMPONENT CONSISTENT WITH THE
MARITAL LIFESTYLE.

E. THE TRIAL COURT FAILED TO
QUANTIFY THE AMOUNT OF INCOME
EARNED FROM DEFENDANT'S EQUITABLE
DISTRIBUTION      AWARD        WHEN
CALCULATING      ALIMONY      WHILE
UTILIZING SAME AS A BASIS THEREOF.

F.  THE    TRIAL   COURT    FORCED
DEFENDANT TO SPEND DOWN HER SHARE
OF MARITAL ASSETS IN LIEU OF
PENDENTE LITE SUPPORT DESPITE
PLAINTIFF POSSESSING THE ABILITY TO
PAY WITH HIS MILLIONS OF DOLLARS IN
POST-COMPLAINT INCOME.

G. THE TRIAL COURT CANNOT FORCE
DEFENDANT TO MAINTAIN THE MARITAL
RESIDENCE WITH HER INEQUITABLE
ALIMONY AWARD WHILE GRANTING
PLAINTIFF A DELAYED DISTRIBUTION OF
THE ASSET.

H. THE TRIAL COURT'S REDUCTION OF
DEFENDANT'S AUTO EXPENSES AND
FORCING HER TO DRIVE [THE ELDEST
CHILD'S] VEHICLE MUST BE REVERSED.

I. TO THE EXTENT THE COURT'S AWARD
OF ALIMONY WAS IMPROPER, SO TOO
WAS ITS ORDER REGARDING LIFE AND
DISABILITY INSURANCE.



                                       A-0053-19T4
              12
            POINT II

            THE TRIAL COURT'S HOLDINGS AS TO
            EQUITABLE DISTRIBUTION OF JEWELRY AS
            THOUGH OUR STATE IS ONE OF COMMUNITY
            PROPERTY    RATHER    THAN   EQUITABLE
            DISTRIBUTION MUST BE REVERSED.

            POINT III

            THE TRIAL COURT'S RECONSIDERED CHILD
            SUPPORT AWARD CONSTITUTES REVERSIBLE
            ERROR BECAUSE THE COURT FAILED TO MAKE
            ANY FINDINGS OF FACT OR CONCLUSIONS OF
            LAW AS TO [THE ELDEST CHILD'S] REMOVAL
            FROM THE GUIDELINES CALCULATION AND
            HIS EXPENSES AT COLLEGE.

            POINT IV

            THE TRIAL COURT'S DENIAL OF DEFENDANT'S
            REQUEST FOR COUNSEL FEES WITHIN THE
            TRIAL DECISION AND RECONSIDERATION
            ORDER CONSTITUTES REVERSIBLE ERROR.

      Our review of a trial court's fact-finding in a non-jury case is limited.

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general

rule is that findings by the trial court are binding on appeal when supported by

adequate, substantial, credible evidence. Deference is especially appropriate

when the evidence is largely testimonial and involves questions of credibility."

Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). While we owe

no special deference to the judge's legal conclusions, Manalapan Realty, L.P. v.

                                                                        A-0053-19T4
                                      13
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we do owe substantial

deference to the Family Part's findings of fact because of that court's special

expertise in family matters. Cesare, 154 N.J. at 412. Therefore, we will only

reverse the judge's decision when it is necessary to "ensure that there is not a

denial of justice because the family court's conclusions are clearly mistaken or

wide of the mark." Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010)

(citations omitted).

      We apply an abuse of discretion standard when reviewing challenges to

the amount and allocation of equitable distribution. Borodinsky v. Borodinsky,

162 N.J. Super. 437, 443-44 (App. Div. 1978). Similarly, a trial court's rulings

on alimony, child support, and the security necessary to assure the payment of

these obligations are discretionary and should not be overturned unless the trial

court abused its discretion, failed to consider applicable legal principles, or

made findings unsupported by the evidence. Gordon v. Rozenwald, 380 N.J.

Super. 55, 76 (App. Div. 2005); Jacoby v. Jacoby, 427 N.J. Super. 109, 116

(App. Div. 2012); S.W. v. G.M., 462 N.J. Super. 522, 535 (App. Div. 2020).

      Likewise, we will disturb an attorney's fee decision "only in the clearest

case of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div.




                                                                         A-0053-19T4
                                      14
2000). We also review a decision on a motion for reconsideration under the

same standard. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996).

      Applying these principles, we conclude that Judge Suh's factual findings

are fully supported by the record and, in light of those facts, her legal

conclusions are unassailable. She carefully reviewed the relevant evidence and

fully explained her reasons in a logical and forthright manner, applying the

relevant statutory factors to adjudicate every issue. Neither the record nor

defendant's arguments reveal anything so "wide of the mark" as to require our

intervention. Parish, 412 N.J. Super. at 48.

      We add that defendant's arguments under points I(C), I(G), I(I), II, III, and

IV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). We briefly address her remaining arguments.

      Defendant's alimony-related arguments in I(A) and I(B) are misplaced.

Contrary to her claims, the judge followed the law in describing the marital

lifestyle, quantifying it, and attributing the marital expenses to the appropriate

party. S.W., 462 N.J. Super. at 532-34. Defendant's non-taxable alimony alone

equaled forty-six percent of the marital family budget. With the addition of

child support, defendant received sixty-seven percent of the family budget.

After paying defendant alimony and child support, plaintiff has insufficient


                                                                           A-0053-19T4
                                       15
funds from his net earned income to meet his portion of the budget along with

his eighty-five percent share of children's expenses and all uncovered college

costs. Plaintiff must expend his share of the assets and supplemental income to

meet his and the children's needs.

      Furthermore, the judge clearly used plaintiff's 2018 income, specifically

his monthly net average earned income set forth in his CIS, to calculate his

support obligations.    Considering the trial occurred in May 2019, before

plaintiff's total compensation for that year was known, it was not an error for

the judge to rely on his last full year's-worth of income. Contrary to defendant's

claims, the judge did not use plaintiff's six-year average income to determine

the amount of alimony. Rather, a careful reading of the judge's decision shows

she described the amount and nature of plaintiff's income from 2013 to 2018 to

explain why he had the ability to pay.

      We reject defendant's arguments in points I(D) and I(E) relating to the

savings component and earnings from equitable distribution. At the outset, we

note that as the proponent of the argument, the burden fell on defendant to

articulate to the judge the amount of savings to be included in the alimony award

and the earnings she would derive from equitable distribution.           N.J.R.E.

101(b)(1).


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                                         16
      Defendant testified she believed the parties saved approximately $60,000

per month stating: "That's how we built [the] . . . brokerage account." However,

she presented no evidence the account balance increase was due to savings. On

cross-examination, she could not explain how the $60,000 figure was possible,

considering it exceeded plaintiff's salary.    Instead, defendant claimed the

savings figure, reported as $64,425.75 per month in her November 16, 2018 CIS,

was formulated on the advice of an attorney.

      We have stated that savings may be considered to protect "income being

derived from alimony[,] . . . to meet needs in the event of a disaster, to make

future major acquisitions, . . . and for retirement." Lombardi v. Lombardi, 447

N.J. Super. 26, 39 (App. Div. 2016). However, "[t]he most 'appropriate case' in

which to include a savings component is where the parties' lifestyle included

regular savings." Ibid. (citations omitted).

      In addition to awarding defendant a substantial equitable distribution, the

judge secured alimony by requiring plaintiff to maintain life and disability

insurance obligations, addressing most of the grounds justifying a savings

component according to Lombardi. The judge's decision noted that the parties'

brokerage account balance increased from $9011.85 in 2012 to $3,984,185 in

2018 and their checking and savings accounts decreased from $874,826 in 2012


                                                                         A-0053-19T4
                                       17
to $116,290 in 2017. However, these figures were not indicative of "regular

savings" as a characteristic of the marital lifestyle as envisioned in Lombardi.

Moreover, to the extent they were, these savings occurred during the last third

of the marriage and did not characterize how the parties handled their finances

throughout the marriage. Also, defendant did not prove the account balances

were the result of regular savings as opposed to passive growth from market

appreciation. Notwithstanding, the judge included a savings component in

alimony award.

      The judge also considered the potential income to be derived from

equitable distribution. However, she concluded she could not speculate as to

defendant's earnings on her share of equitable distribution because defendant

would require the assistance of a financial professional. This conclusion was

reasonable, considering we previously cautioned trial courts not to assume the

rates of return from investments held by a supported spouse inexperienced in

investing when calculating alimony. Overbay v. Overbay, 376 N.J. Super. 99,

110-13 (App. Div. 2005).

      We also reject defendant's argument in point I(F), which asserts the judge

erred by not awarding her pendente lite support. As we noted, although the

judge did not order a direct payment of pendente lite support, she did compel


                                                                        A-0053-19T4
                                      18
plaintiff to pay expenses on defendant's behalf. Furthermore, considering th e

pendente lite period was but a few months and with defendant having access to

the $540,000 she took from a marital account, she failed to demonstrate a need

for pendente lite support.

      Finally, we reject the argument raised in defendant's point I(H) regarding

the 2018 Jeep. The parties' son does not own this vehicle; it was an asset subject

to equitable distribution. Considering the son was away at college and the

parties operated similar vehicles during the marriage, it was not an abuse of

discretion to award defendant a newer Jeep in equitable distribution.

      Affirmed.




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