Opinion
DOCKET NO. A-4496-12T2 DOCKET NO. A-1787-13T3
08-03-2015
S.D., Plaintiff-Respondent, v. S.D., Defendant-Appellant.
August J. Landi, attorney for appellant. Laufer, Dalena, Cadicina, Jensen & Boyd, L.L.C., attorneys for respondent (James C. Jensen, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-211-11. August J. Landi, attorney for appellant. Laufer, Dalena, Cadicina, Jensen & Boyd, L.L.C., attorneys for respondent (James C. Jensen, on the brief). PER CURIAM
We address in a single opinion the two successive appeals of husband S.D. (defendant) from a final judgment of divorce after a trial (A-4496-12) and from post-judgment orders enforcing provisions of the judgment (A-1787-13). We affirm the judgment and orders.
These appeals are a reflection of matrimonial litigation at its most unnecessarily contentious and arduous. The record leads us to attribute this critical characterization to defendant's intransigence and litigation tactics. Throughout the divorce proceedings, defendant has taken unreasonable positions and made use of every opportunity to prolong and complicate the case. He has made claims and arguments that even the most tenacious litigant would recognize are without merit, and he has challenged virtually all unfavorable rulings of the trial court along the way and again on appeal.
In these two appeals, he has raised fourteen separate points of argument, many of them with multiple subparts and imbedded claims and issues. Because of his recalcitrance, the trial court entered post-judgment orders to carry out the terms of the divorce judgment. Defendant has no one but himself to blame if his stonewalling resulted in post-judgment remedies that went somewhat beyond the strict terms of the judgment. Our overall conclusion about these appeals is that the trial court considered and addressed all the claims and defenses in this difficult divorce case, and we see no basis to reverse any of its many rulings and determinations.
I.
Defendant and plaintiff S.D. met in India on May 30, 1997, for purposes of an arranged marriage. Their wedding took place five days later. They moved to the United States, and a son was born in 2001 and a daughter in 2003. They separated permanently in 2010 after plaintiff filed a domestic violence complaint against defendant for the second time. Plaintiff filed for divorce in July 2010.
Plaintiff did not work before marrying. During the early years of the marriage, she was a homemaker and took care of the children. The marital home was purchased using funds from defendant's income at InSoft, a computer consulting firm that defendant set up with a friend in 1998. In 1999, defendant was diagnosed with a heart condition, idiopathic ventricular tachycardia. Eventually, he had heart transplant surgery, and he recovered well.
Throughout the marriage, defendant's parents would visit for long stretches, and their presence in the family home caused stress in the marital relationship. By 2005, defendant's parents had settled into the marital home for an indefinite stay. They were supported financially by defendant.
In 2007, defendant started working for Honeywell as a computer programmer. In 2008, plaintiff made use of the bachelor's degree she had received in India and also found employment outside the home, a position as a bookkeeper at an annual salary of about $37,000. After beginning employment, plaintiff took student loans toward her studies for an MBA. Defendant already held two master's degrees and had finished his Ph.D. coursework but had not completed a thesis. The parties' tax return for 2008 stated joint income of more than $135,000.
Plaintiff's decision to enter the workforce followed a domestic violence incident in 2008. Plaintiff alleged that defendant physically abused her for suggesting that their son could attend a birthday party with their daughter. She called the police and obtained a temporary restraining order (TRO). Previously, plaintiff had been apprehensive about getting a restraining order despite defendant's ongoing abuse because he threatened that the children would be taken from her if she ever spoke to anyone about his conduct. Plaintiff subsequently withdrew her complaint for a restraining order, and the TRO was vacated.
In May 2010, plaintiff obtained a second domestic violence TRO against defendant. Defendant then moved into an apartment and took his parents with him. The parties never lived together again.
On June 2, 2010, the children visited with defendant in the hospital when he was awaiting a heart transplant. The surgery was performed on June 6, 2010. After that initial visit, plaintiff kept the children from seeing defendant in the hospital because she feared they were traumatized by the experience, but she was amenable to the children visiting with defendant after his discharge from the hospital. By July and August 2010, defendant was no longer hospitalized, but he regularly missed agreed-upon visits with the children.
After plaintiff filed for divorce, defendant filed the first of his eight case information statements (CISs) in August 2010. Substantial discrepancies exist between defendant's first and last CISs, the only ones in our appellate record, pertaining to defendant's income, expenses, assets, debts, and life insurance policies.
In defendant's first CIS, he stated his annual salary was $126,000. His W-2 form for 2009 indicated he earned $122,856.90 at Honeywell that year. On November 9, 2009, however, defendant went on short-term disability. He began receiving $13,669 per month in tax-free disability payments through a private disability insurance plan, and he also received Social Security disability income (SSDI) benefits of $2,208 per month.
The annual rate of income on these two disability payments would be more than $190,500. --------
On September 24, 2010, the court issued an order requiring pendente lite support for plaintiff of $4,500 per month. Defendant was also required to pay $7,500 to plaintiff as reimbursement for her attorney's fees. In addition, the order granted defendant parenting time with the children on alternate weekends and for Wednesday night dinners.
On October 1, 2010, the court entered a consent order by which plaintiff agreed to dismiss her domestic violence complaint and instead the parties agreed to refrain from any contact except "non-abusive e-mail contact in connection with issues pertaining to the minor children of the marriage . . . ." They also agreed to joint legal custody, with plaintiff designated as the parent of primary residence. Plaintiff would retain possession of the marital home during the divorce case, but the home would be subject to equitable distribution.
Mediation of the divorce disputes failed, and defendant moved for additional parenting time, which the court denied on January 7, 2011. On March 2, 2011, the court appointed Dr. Amie Wolf-Mehlman, a psychologist, as a custody expert. Also in March 2011, the parties' son made a remark in school that he intended to commit suicide.
In April 2011, defendant filed a motion requesting eleven forms of relief, including modification of his support obligation and reconsideration of the court's pendente lite decisions pertaining to custody and parenting time. Also, defendant sought an order requiring that all interviews of the children pertaining to custody and parenting time be recorded. Shortly thereafter, defendant withdrew nine of his eleven grounds for relief. On May 27, 2011, the trial court denied reconsideration of orders pertaining to custody and additional parenting time. On June 3, 2011, the court denied an application by defendant seeking anew the relief he had previously requested in the nine withdrawn claims.
On June 9, 2011, a panel of this court reversed the trial court's June 3, 2011 ruling with respect to the recording of the children's custody interviews and ordered that they be recorded with protective measures taken to restrict access to the recordings and to prevent inappropriate disclosure. Several days later, the trial court issued a protective order that strictly limited the parties' access to such recordings except upon specific application to the court.
On August 3, 2011, the court granted plaintiff's motion for permission to travel with the children to Canada. Although the family had vacationed in Canada in the past and plaintiff had a relative living there, defendant objected to plaintiff taking the children to Canada. The court believed that defendant was unreasonably withholding his consent and had intentionally forced plaintiff to incur unnecessary legal fees.
On August 25, 2011, the court denied defendant's motion for permission to use joint marital assets to pay his counsel fees and his unpaid pendente lite support obligations. The court found that defendant had a substantial monthly income in the form of disability benefits and that he had been voluntarily giving money to his parents and buying many items for himself that were not necessities. The court also granted plaintiff's request for counsel fees of $10,287.43.
On October 20, 2011, Wolf-Mehlman submitted her expert report, which she would later discuss in detail at trial. She recommended against joint custody and a shared parenting plan because of the high conflict in the marital relationship.
In February 2012, defendant was granted leave to appeal by this court from another protective order of the trial court. We held summarily that copies of the expert custody reports should be provided to the parties and not just be available for their review at the courthouse.
On May 9, 2012, defendant's private disability benefits were terminated on the ground that his health no longer prevented him from performing his occupational duties. He continued to receive SSDI benefits.
On May 11, 2012, the trial court denied various requests by defendant, including: his desire to use the audio recordings of the custody interviews at trial as opposed to preparing and using transcripts of the recordings; his untimely request to depose the court's custody expert, Wolf-Mehlman; his request to release the audio tapes to his own custody expert; and his request to increase his parenting time. The court further denied defendant's request to obtain a copy of Dr. Doreen Sperber-Weiss's private notes of the son's therapy sessions.
Up to that time, defendant had retained three different attorneys for the divorce litigation, but he was pro se by the time of the May 2012 order. The court also granted a number of requests plaintiff had made in a cross-motion, which we need not detail here.
On June 15, 2012, the court denied defendant's motion for a reduction of pendente lite support and denied his request for reconsideration of the May 2012 order. The court observed that defendant claimed he had financial problems but had also recently amended his CIS to show he earned $110,000 annually at the same time that he claimed $13,364 in monthly expenses, numbers that could not be reconciled. The court also noted that defendant sought to "rehash" a "litany" of matters dating as far back as the couple's separation in 2010.
On July 9, 2012, the court ordered defendant to create a litigation fund of $50,000 drawn from his pension account for plaintiff's use during the litigation. On August 24, 2012, the court entered an order specifying use of audio recordings of the custody evaluations.
The divorce trial commenced on October 22, 2012, and continued into March 2013.
Regarding the marital relationship, plaintiff testified that she had lived in fear of defendant because he displayed a threatening demeanor and could "fly into a rage at the drop of a hat." According to plaintiff, in the first years of the marriage, defendant was only verbally abusive, but he became physically abusive after the parties' son was born in 2001. She explained that the relationship deteriorated further with the birth of their daughter. Plaintiff testified she was the primary caretaker for the children. Defendant did not help with the household chores, did not cook, and did not clean. Before he stopped working because of his heart condition, he spent some fifty to fifty-five hours per week at his job.
After the 2008 domestic violence TRO, plaintiff allowed defendant back into the home because he promised to attend counseling, to change his ways, and to move his parents back to India. Instead of doing what he promised, defendant terminated all of plaintiff's credit cards, overdrew their joint bank account, and left her without any money to provide for household expenses. Plaintiff testified that defendant also soon resumed the verbal and physical abuse. A few months after the reconciliation, defendant's parents returned to the marital home and apparently planned to stay permanently. The parents never worked or contributed to the household.
Plaintiff obtained a second restraining order in 2010 after defendant allegedly beat her for spending money on Chinese take-out food for the family on Mother's Day. Defendant's mother refused to help plaintiff during the incident and instead cursed and complained about her. As a result of the domestic violence complaint and TRO, defendant and his parents moved out of the house.
Plaintiff testified that she remained the primary caretaker of the children after she started working in 2008. She helped with their homework, set out their clothes, made their meals, put them to bed, and took them to extracurricular activities and doctors' appointments. Plaintiff's daily routine was to drop the children at school, go to work, pick up the children after work, and help them with their homework. She claimed that the need to spend more time attending to the children reduced her work time. Her taxable income for 2011 was $37,552.
Plaintiff also testified that defendant would not allow her to discipline the children while they lived together. Since the separation, she had been trying to obtain help for her son because of his ADHD and anxiety, but defendant would frequently resist her efforts. The son was receiving a lot of information about the divorce from defendant. Plaintiff stated she did not discuss the divorce with the children.
Plaintiff described defendant as overbearing in his interactions with her. He wanted everything to be his way, including after the separation. He did not respect her. He intentionally made it difficult for the children to attend their activities and claimed that plaintiff tried to keep him from the children. Despite his lack of cooperation, she shared parenting time with defendant during school breaks beyond the requirements of the court's pendente lite order.
Plaintiff did not believe that defendant had been forthcoming about the existence and value of marital assets. According to plaintiff, since about 2006, defendant had spent a great deal of time trying to develop a car wash business with a partner. He invested marital assets in the car wash plan. Plaintiff provided the following information as best as she knew about the parties' assets: defendant's pension plan was valued at $219,628.38 at the time the complaint was filed; defendant's savings plan with Honeywell was valued at $8,000; the parties' three IRAs were valued at a total of $22,300; and defendant had a separate bank account in India. Although she did not have access to specific information about defendant's life insurance policies, she stated he had four policies: the largest one with New England Life for $1.25 million. Plaintiff thought she had been the named beneficiary on the policies, but she believed defendant changed the beneficiary designations after the parties' separation. In regard to debts, the outstanding mortgage loan on the marital home was $317,052.61. Plaintiff stated that defendant took out loans and opened credit cards without her consent after the divorce complaint was filed.
During the pendency of the litigation, defendant deducted from the $4,500 in monthly unallocated support ordered by the court the amounts that he paid directly for the mortgage and related charges. The mortgage payment accounted for $3,200, leaving a balance of $1,300 that he deposited in the joint account for plaintiff's general use in meeting her expenses. Because of defendant's disability, plaintiff received Social Security payments on behalf of the children in the amount of $577 per month per child. The court did not order separate pendente lite child support because the children were receiving the Social Security benefits. At the time of trial, defendant still had not returned to work.
Wolf-Mehlman, the court-appointed expert, testified that plaintiff was a "strict gatekeeper" in terms of monitoring and restricting the children's time with defendant, but her approach to his parenting time was based on concerns plaintiff had about defendant and his parents. Plaintiff did not want to sever ties between the children and defendant. Although defendant denied that domestic violence had occurred in the home, both children confirmed there was fighting, yelling, and cursing in the home. The children saw their father as the "bigger yeller." The son had seen defendant hitting plaintiff and overheard their physical altercations. In contrast, plaintiff was not reported to be aggressive or physical towards defendant or the children.
Wolf-Mehlman added that defendant blamed the failures in the marriage on plaintiff. He inaccurately believed he was the primary caretaking parent before the couple's separation. The son felt stress about the prospect of parenting time increasing with defendant as a result of the divorce. Defendant's speaking about the litigation added to the son's stress and anxiety.
Wolf-Mehlman believed a number of factors weighed against a shared custody arrangement, including: the size of defendant's two-bedroom apartment that he shared with his parents, and his sharing a bed with the children; the children's primary bond with plaintiff; defendant's aggression towards plaintiff; and defendant's attempted control of the son. Because of the high-conflict nature of the divorce, Wolf-Mehlman recommended that plaintiff be the primary caretaker.
Sperber-Weiss, the son's treating therapist, explained that the initial treatment meeting did not go well because defendant's behavior was "explosive" and was intimidating to plaintiff and to Sperber-Weiss. She discussed the stricter control that plaintiff maintained over the children's activities than defendant did in his home and viewed it as plaintiff setting appropriate boundaries for the children while defendant did not. Additionally, the divorce litigation caused major stress in the son's life because he knew too many details about the case, which caused him continual anxiety. Sperber-Weiss noted that plaintiff provided more time for defendant and the children to interact than the parenting time ordered by the court.
William Brunner, a car wash appraiser, was presented and qualified as an expert witness by plaintiff. He reviewed documents such as planning board data, due diligence reports, operating agreements from the anticipated car wash, and a proposed contract for the purchase of the land on which the car wash would operate. The proposed purchase contract for the land set a price of $500,000. Defendant and his business partner had incurred expenses and secured all necessary permits to be an operating car wash at the planned site. Based on Brunner's analysis, the value of the car wash business was $408,454.
In his case, defendant testified that he did most of the parenting of the children before the parties separated. He woke them, got them dressed for school, supervised their morning activities, got them showered, prepared them for school, and dropped them off at school. Afterwards, he would go to work and then pick them up from school, giving them snacks, helping them with homework, taking them to karate, and playing with them. Plaintiff would make the family's dinner, both parties would read to the children, and the children would be asleep by 10 p.m. After defendant's heart condition was diagnosed, his elderly father walked the children to school and would bring them back at the end of the school day. He complained that the children's hygiene had declined since plaintiff became the primary caretaker after the separation. Defendant conceded that he received additional parenting time after requesting it from plaintiff.
Defendant was concerned that plaintiff would flee the country and return to India with the children. He argued that plaintiff's bookkeeping job underpaid her, and that income should be imputed to her at the mean wage for a professional accountant of $96,280 per year. Defendant sought alimony from plaintiff because she was working and he was disabled. However, he admitted that his health was good as of January 2011, that he was well enough to resume normal activities, and that he had no post-surgery complications. Nevertheless, he had not looked for a new job.
Defendant admitted he and his business partner had spent approximately $500,000 to get approvals for the car wash. He claimed his share of the invested money was about $100,000, which he obtained from the joint marital checking account.
After the parties' separation, defendant's initial overall monthly expenses totaled $5,285 as shown on his CIS. At the time he completed his first CIS, he was receiving $13,669 per month in tax-free disability payments. He conceded he had approximately $8,000 left per month with which to pay plaintiff the $4,500 pendente lite support as ordered by the court. Nevertheless, when he was ordered to pay plaintiff's counsel $7,500 in fees, he took a $15,000 loan without plaintiff's consent on a life insurance policy. He additionally paid his custody expert, Dr. Ralph Fretz, out of the remainder of the loan he had taken from the life insurance policy.
When defendant left the home in May 2010, he stopped using the parties' joint bank account and instead opened a new account with his father. In June 2010, defendant started depositing the $13,699 disability payments into his new account.
Defendant admitted that during the pendency of the divorce case he spent funds from marital assets for his own expenses without permission from plaintiff or the court. He admitted he took approximately $7 6,000 from the marital assets for various purposes. He also cashed in an IRA from Bank of America for more than $4,300.
After plaintiff filed the divorce complaint and before the trial concluded, defendant made various expensive purchases at computer stores, video stores, and the Apple online store. For example, he made a debit card purchase of $1,703, which he believed may have been for his television. He made almost daily purchases from Amazon.com totaling about $500 per month, claiming that he needed basic living items. While the litigation was pending, he continued to buy items such as expensive gifts, wine, and a plane ticket from India for a relative. As an example of his spending freely despite his claim of limited income and assets, defendant bought premier stereo equipment in 2011 but later claimed he had no work- related income for 2011 and only received approximately $26,000 in SSDI benefits that year.
He also admitted that he actively used the couple's joint credit card to pay his personal expenses although he had money in his bank account. For example, he intentionally placed a portion of his attorney's fees on the joint credit card. He admitted that he was spending more than $9,000 per month, which substantially exceeded plaintiff's and the children's living expenses.
He believed he was entitled to take items from the marital home and away from plaintiff even though he had already fully furnished his entire apartment with new furnishings and other items. Defendant conceded he could have used cash to purchase items for his new home but that he intentionally placed the charges on the joint credit card. In fact, defendant had about $20,000 of credit card debt at the time he left the marital residence in May 2010 but that debt had risen to more than $66,000 at the time of trial. He testified he wanted plaintiff to pay a share for the credit card debt he incurred after the separation. He avoided answering directly whether he wanted plaintiff to be responsible for his alleged personal loans from family and friends. He did state that he wanted plaintiff to pay for half the $15,000 loan he took on the life insurance policy, despite spending half the loan proceeds to pay his custody expert, Fretz, and the other half to pay attorney's fees on her behalf as ordered by the court.
After the complaint was filed and prior to trial, defendant took many trips, including to Canada, Niagara Falls, and California. He also paid for his parents to travel to California, and for his extended family to travel to the United States from India and to tour Atlantic City. During these visits, he would pay for entertainment, food, and sightseeing excursions for his relatives.
As the litigation proceeded, defendant filed CISs in which he successively raised his own expenses to nearly $13,000 per month. He continued spending even when his private disability payments ended. He testified that from January 1 to March 15, 2013, he took $27,000 out of his pension plan account. He did not have any taxes withheld on the money he took out of the pension plan. Despite his claims to the contrary, defendant had access to more than $33,000 in the first two-and-a-half months of 2013, and of that amount only $4,500 per month was going to plaintiff. Defendant kept almost $9,000 for himself each month, but still claimed he did not have enough to survive. He had dissipated his pension account, which only contained about $100,000 at the time of his testimony, down from approximately $219,000 at the time the divorce complaint was filed.
In regard to other marital assets, defendant testified that he had total savings and investments in various accounts of slightly more than $50,000. Plaintiff's counsel pointed out to the court that the documents reflected larger values than defendant testified. In regard to life insurance, defendant contradicted his final CIS and plaintiff's testimony. He conceded that he changed the beneficiary to his parents on his various life insurance policies after the couple separated in May 2010.
Defendant's custody expert, psychologist Fretz, agreed with Wolf-Mehlman that the situation between the parties was "high-conflict." At the same time, he disagreed with Wolf-Mehlman that it was preferable to grant custody to only one parent and grant the other parenting time. Fretz recommended joint legal custody and virtually a fifty/fifty shared parenting plan. He also contended that Sperber-Weiss was exacerbating the conflict in the family.
Fretz believed that plaintiff made it difficult for defendant to maintain a relationship with the children by attempting to block defendant from having overnight parenting time, keeping medical information about the children from being sent to defendant, and denying defendant's requests for additional parenting time with the children. During cross-examination, Fretz conceded he was not made aware of defendant's visit with the children when defendant was ill. Moreover, he admitted he did not inquire about plaintiff's account of events relating to the alleged domestic violence committed by defendant.
The court rendered its decision in writing and issued a final judgment of divorce on May 16, 2013. In general, the court awarded plaintiff sole legal and physical custody of the children with parenting time for defendant, set forth the couple's assets and divided them equally between the parties with adjustments for transactions that had occurred since the separation, and awarded plaintiff $700 per week in permanent alimony. The final judgment of divorce did not address in detail the parties' life insurance policies but it ordered defendant to obtain an additional policy valued at $300,000 to cover his alimony obligation to plaintiff.
Defendant's notice of appeal from the judgment was filed on May 29, 2013. Within a few days, the trial court was again presented with applications from both parties. The court considered plaintiff's application to freeze the parties' joint assets to prevent further dissipation, but a corresponding court order is not included in the record on appeal.
On June 14, 2013, defendant filed a motion requesting an "ability to pay" hearing, and he wanted both his financial obligations and the court's child-related decisions referred to non-binding arbitration. By way of cross-motion, plaintiff sought verification of her and the children's designation on life insurance policies, and for defendant to comply with numerous financial aspects of the divorce judgment. Against her own financial interest, she also pointed out a mathematical error in the calculation of her own pension and IRA accounts that benefitted defendant by about $9,700.
On August 15, 2013, the court ruled on the pending post-judgment motions. The court amended the judgment to correct the error revealed by plaintiff. It ordered that the children be named as the beneficiaries on two life insurance policies: a New England policy with a value of $1.25 million and a Honeywell policy with a value of $250,000. Furthermore, the court ordered that plaintiff be named as the beneficiary on two policies: a New England policy with a value of $750,000 and a Honeywell policy with a value of $254,000. The court denied defendant's request for "an ability to pay" hearing with respect to his support obligations and attorney's fees.
Subsequently, defendant filed two motions for reconsideration, and plaintiff filed a cross-motion seeking defendant's compliance with the divorce judgment. After newly-retained counsel for defendant requested an adjournment of the motions, the court advised the parties that the return date for the motions would be November 22, 2013. However, on November 1, 2013, the court found it necessary to provide certain relief to plaintiff in advance of the formal return date. The court permitted the release of certain marital assets to pay plaintiff's expenses, and it denied defendant's request to stay the August 15, 2013 order. Furthermore, the November 1 order required that defendant appear in court on November 12, 2013, for the purpose of executing documents to implement other parts of the divorce judgment and the August 15 order.
On November 7, 2013, defendant requested that the court consider his reply brief and certification. On November 12, 2013, defendant and his attorney failed to appear in court. Defendant had not performed any of the tasks that the court had ordered, including the payment of alimony for ten weeks and the designations required on the life insurance policies. The court appointed a neutral attorney to act as attorney-in-fact for defendant to effectuate the requirements of its November 1, 2013 order. On November 15, 2013, plaintiff's counsel informed the court that the Probation Department could not proceed with enforcing defendant's alimony obligation as long as motions were pending. On November 22, 2013, the court formally decided the balance of the pending motions and issued an order appointing plaintiff as attorney-in-fact for defendant because the appointed attorney had not taken the actions the court had directed.
On December 10, 2013, defendant filed a second notice of appeal regarding the court's post-judgment orders (A-1787-13). His motions for a stay were denied by the trial court and by us.
II.
Defendant raises the following argument points in A-4496-12, his appeal from the final judgment of divorce (JOD or FJOD):
POINT ONE
(a) THE COURT SET UP A $50,000 "LITIGATION FUND" FOR PLAINTIFF'S TRIAL COUNSEL. APPELLANT WAS DENIED ACCESS TO THE LITIGATION FUND AND FORCED TO TRY THE CASE PRO SE — RESULTING IN A "NON-LEVEL LITIGATION FIELD" AT TRIAL.
(b) THE COURT'S PRE-TRIAL DISCOVERY RULING OF MAY 11, 2012 BARRING APPELLANT'S RIGHT TO TAKE DEPOSITIONS OF EXPERT WITNESSES, PREJUDICED APPELLANT'S RIGHT TO CROSS-EXAMINATION AT TRIAL.
(c) THE APPELLATE COURT ON INTERLOCUTORY APPEAL ENTERED AN ORDER GRANTING APPELLANT THE RIGHT TO HAVE CUSTODY EVALUATION INTERVIEWS, AUDIO RECORDED. THE TRIAL COURT SUA SPONTE THEN PROHIBITED THE USE OF THE AUDIO TAPES AT
TRIAL; AND FURTHER PLACED CUMBERSOME & ONEROUS RESTRICTIONS ON THE REVIEW OF THE TAPES; (1) REQUIRING IN CAMERA REVIEW BY THE COURT, BEFORE THE PARTIES COULD ACCESS THE TAPES; (2) LIMITING REVIEW BY THE PARTIES, COUNSEL OR EXPERTS TO THE COURTHOUSE; (3) REQUIRED THAT APPELLANT PAY FOR TRANSCRIPTS OF 20+ HOURS OF RECORDINGS; AND (4) FURTHER PROVIDING THAT ONLY THE TRANSCRIPTS & NOT THE TAPES BE USED AT TRIAL — THUS EMASCULATING THE RELIEF GRANTED BY THE APPELLATE ORDER.
(d) THE COURT'S PRE-TRIAL ORDER OF MAY 15, 2012 BARRING APPELLANT'S ACCESS TO A TAPE OF PLAINTIFF IMPERSONATING APPELLANT, PREVENTED CROSS-EXAM AT TRIAL TO IMPEACH PLAINTIFF'S CREDIBILITY.
(e) AT TRIAL, PLAINTIFF'S COUNSEL REPRESENTED PLAINTIFF WAS NOT SEEKING SOLE CUSTODY. TWO MONTHS FOLLOWING TRIAL & ONE DAY BEFORE THE JOD ISSUED, PLAINTIFF'S COUNSEL SUBMITTED A PARENTING PLAN SEEKING SOLE CUSTODY. THE COURT'S JOD INCORPORATES THIS PLAN; WITHOUT GRANTING APPELLANT OPPORTUNITY TO BE HEARD.
(f) AT TRIAL THE COURT REFUSED TO LET APPELLANT REBUT ALLEGATIONS OF DOMESTIC VIOLENCE, YET THE JOD FINDS APPELLANT'S CONDUCT "REPREHENSIBLE."
(g) CONTRARY TO THE JOD FINDINGS OF DISSIPATION, THERE WAS NEVER AN ORDER RESTRAINING AND ENJOINING APPELLANT FROM UTILIZING HIS RETIREMENT ACCOUNTS TO MAINTAIN THE STATUS QUO.
POINT TWO
GRANTING SOLE LEGAL & PHYSICAL CUSTODY TO A MOM FOUND TO BE A "VERY STRICT GATEKEEPER" DENIES THE CHILDREN'S RIGHT TO EXTENDED TIME WITH THEIR DAD WHO HAS A LIFE EXPECTANCY OF LESS THAN SEVEN YEARS & ABRIDGES DAD'S
CONSTITUTIONAL RIGHT TO CO-PARENT THE CHILDREN.
POINT THREE
PARENTING TIME SHOULD BE MAXIMIZED FOR YOUNG CHILDREN WHOSE DAD'S LIFE EXPECTANCY IS SEVEN YEARS. THE COURT COMMITTED PREJUDICIAL ERROR BY LIMITING DAD'S TIME TO ALTERNATIVE WEEKENDS PLUS A SUPPER VISIT MID-WEEK.
POINT FOUR
THE COURT SETS NO PATH FORWARD FOR THE PARTIES TO ACHIEVE A FAVORABLE CO-PARENTING OUTCOME POST-DIVORCE. THE JOD DOES NOT PROVIDE FOR APPOINTMENT OF A PARENTING COORDINATOR; GUARDIAN AD LITEM; CO-PARENT COUNSELLOR; OR OTHER REMEDIATION TO CORRECT PARENTAL DYSFUNCTION RECOGNIZED BY THE COURT THROUGHOUT THE TRIAL.
POINT FIVE
THERE WAS NO EVIDENCE OF RECORD TO IMPUTE INCOME TO PAYOR, WHO IS A HEART TRANSPLANT SURVIVOR AND SOCIAL SECURITY DISABILITY RECIPIENT. THE PERMANENT ALIMONY AWARD ON THIS 12 YEAR MARRIAGE IS THUS OPPRESSIVE. APPELLANT SHOULD BE RECEIVING ALIMONY ON THIS RECORD, NOT PLAINTIFF.
POINT SIX
THE COURT FAILED TO APPLY MALLAMO RELIEF AS TO APPELLANT'S OVER-PAYMENT OF PENDENTE LITE SUPPORT FOLLOWING LOSS OF HIS $13,000 PER MONTH DISABILITY INSURANCE.
POINT SEVEN
THE EQUITABLE DISTRIBUTION SCHEME IMPOSED BY THE COURT IS NEITHER FAIR, EQUITABLE OR JUST AND DOES NOT SUPPORT FINDINGS OF ASSET DISSIPATION.
POINT EIGHT
THE RECORD DOES NOT SUPPORT FINDINGS THAT A NON-EXISTENT CAR WASH HAD ANY VALUE.
POINT NINE
LAVISHING FURTHER COUNSEL FEES OF $21,995 ON PLAINTIFF'S COUNSEL POST-DIVORCE IS NEITHER FAIR, EQUITABLE NOR JUST.
In A-1787-13, the appeal from post-judgment orders, defendant raises the following argument points:
POINT ONE
I. The Trial Court's motion practice does not comply with the Rules of Court.
(a) Orders are entered contrary to the FJOD with the case on Appeal;
(b) Orders are entered without any supporting certifications to substantiate such awards;
(c) Orders are entered without Defendant being granted the opportunity to be heard.
(d) Orders are entered contrary to the Court's rulings from the Bench.
Without transcript or written decision setting out finding of facts and conclusions of law, Orders are rendered non-reviewable on Appeal.
POINT TWO
II. The Trial Court erred in the Orders of August 15, 2013, November 1, 2013 and November 22, 2013 by enforcing the "mistake of figures", clearly identified in Defendant's Certification of November 8, 2013:
(a) enforcing the "mistake of figures", clearly identified in Defendant's Certification of November 8, 2013:
(b) by awarding Plaintiff the $55,000 remaining in Defendant's IRA retirement leaves Defendant with no assets to pay the taxes on such withdrawals.
(c) by creating new financial obligations while the FJOD is on Appeal in violation of Rule 2:9-1.
POINT THREE
III. By letter submission on November 21, 2013 without a pending Motion, Plaintiff's counsel submitted a form of Order for the Court's signature entered by the Court on November 22, 2013 granting the following:
(a) authorizing the removal of $10,000 from Defendant's paid up $1,250,000 New England Life Insurance policy targeted for the children — funds required to assure continued payment of premiums.
(b) granting Plaintiff beneficiary status to $1,250,000 of Life Insurance wherein the children were named beneficiaries; whereas the FJOD limited Plaintiff's beneficiary status to $300,000.
(c) This Order is in contra-distinction to the Court's November 1, 2013 and August 15, 2013 Orders confirming the children beneficiary status to $1,250,000 of Defendant's Life Insurance.
The November 22 Order over-rules the Court's prior post-judgment Orders of August 15, 2013 and November 1, 2013 without a hearing and while the FJOD is on Appeal in violation of R. 2:9-1.
POINT FOUR
IV. The Trial Court gives carte blanche power and authority to Plaintiff as to the children's passports, by authorizing and empowering her to sign Defendant's name to all such documents without a motion or a
hearing — resulting in a denial of due process.
POINT FIVE
V. The Trial Court erred by signing a form of Order presented by Plaintiff's Counsel granting Plaintiff what is in essence a General Power of Attorney to signing Appellant's names to Financial Documents, Life Insurance Policies, Children's Passports, where there exists a clear conflict of interest in conferring such power to the one party to a contested divorce action.
The majority of these arguments are without sufficient merit to warrant discussion in a written appellate opinion. R. 2:11-3(e)(1)(E). We will address some of defendant's arguments in general terms and a few with respect to the specific circumstances of the case that prompted the trial court's orders.
Defendant points to several disparate pretrial and trial rulings of the court, which were made by two different judges, and argues that these rulings indicate the litigation was not conducted on a "level field" and he was hampered in presenting his case. We find no unfair treatment of defendant.
The court ordered that a litigation fund of $50,000 be established from marital assets for plaintiff's use because defendant had already withdrawn substantial funds from his retirement account to pay for his several lawyers, his custody expert, and his personal expenses. Defendant had utilized the marital asset despite having a large monthly disability income that far surpassed the combined legitimate living expenses of both parties. The evidence showed that he was spending freely on discretionary items and also purposely incurring debt to dissipate marital assets rather than making use of his monthly income. It was not clear where his funds were being diverted, but he had a joint account with his father and he incurred large expenses on behalf of family and relatives from India. There was simply no credibility in defendant's accounting of his usual monthly expenses.
The "un-level field" that the court sought to right was the one created by defendant in his own favor. There was no abuse of discretion in the court's order that defendant provide the funds for plaintiff's litigation expenses. See Clarke v. Clarke, 349 N.J. Super. 55, 58 (App. Div. 2002) (appellate court is bound to give substantial deference to discretionary rulings of family court).
With regard to defendant's desire to depose the court's custody and parenting time expert, Wolf-Mehlman, defendant could have made the request much earlier since Wolf-Mehlman issued her report in October 2011. We will generally defer to a trial court's determinations regarding discovery, and we review those determinations under the abuse of discretion standard. See Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512-13 (1995); Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). The court did not abuse its discretion in denying defendant's request on the ground that the case was already two years old and needed to proceed to a trial.
We also find no abuse of the trial court's discretionary authority to control the "mode and order of interrogating witnesses and presenting evidence," N.J.R.E. 611(a), because the court required the parties to use transcripts of the audio recordings rather than the recordings themselves. Defendant complains about the expense of preparing transcripts, but he could have requested transcripts of relevant excerpts for the purpose of cross-examining Wolf-Mehlman.
With respect to the court's awarding sole custody to plaintiff on the basis of a parenting plan plaintiff's attorney provided shortly before the entry of the final judgment, it is true that plaintiff began the case by acknowledging that the court would likely order joint legal custody of the children. However, the trial lasted several months and the court heard evidence that a joint custody arrangement would cause ongoing difficulties because of the high conflict interaction of the parties. Furthermore, it was initially defendant who challenged the parties' pendente lite decision to share joint legal custody, with plaintiff being the parent of primary residence, as stated in the consent order of October 1, 2010. He can hardly complain that plaintiff's position on legal custody evolved as the case progressed and his cooperation seemed unattainable. As a procedural matter, defendant had the opportunity to challenge at trial Wolf-Mehlman's recommendation against joint custody.
Nor did the court deprive defendant of the opportunity to challenge the allegations of domestic violence. Defendant testified for several days, and the court heard his side of the many disputes about the marital relationship. Simply stated, defendant was not a credible witness, and his denials of domestic violence were even contradicted by his own children in private custody interviews.
Further on the subject of custody and parenting time, defendant argues the court erred substantively in awarding sole legal and physical custody to plaintiff because he believes that his heart condition gives him statistically only seven years left to live and because he has a constitutional right to co-parent the children. Although he was granted substantial parenting time, he argues he was entitled to more, and he adds that the court should have appointed a parenting coordinator or taken other measures to address the dysfunctional parental relationship.
The court explained that defendant took intransigent positions on parenting and custody and refused to cooperate with plaintiff. The court credited the testimony of Wolf-Mehlman and Sperber-Weiss that defendant's behavior was a contributing cause to the children's anxiety. In particular, defendant's discussing the matrimonial disputes with the children was detrimental to their well-being.
In contrast, plaintiff appeared to be proceeding in the best interests of the children. She proposed a fair but fixed parenting schedule, and in fact granted defendant more time with the children than the court's pendente lite orders required. The court specifically declined to credit the testimony of defendant's custody expert Fretz that discounted plaintiff's allegations of domestic violence and other serious problems in the relationship.
The objective of the court in determining custody and parenting time is to protect the best interests of the children. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997); Wilke v. Culp, 196 N.J. Super. 487, 497 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). In making custody and parenting determinations, the court may find that some expert testimony is not credible. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002).
Defendant's expert Fretz off-handedly dismissed plaintiff's allegations of domestic violence without speaking with her and without considering the record that supported its occurrence. Fretz also claimed that plaintiff was depriving defendant of his right to parent the children but was not aware that she was granting him more parenting time than the court had required. The court reasonably found that Fretz was not a credible witness. As an appellate court, we defer to the credibility determinations of the trial court.
Defendant makes a litany of other criticisms of plaintiff, including ludicrous claims such as her acknowledgement of the family taking vacations was inconsistent with her complaints that her marriage was unhappy. The record also indicates that defendant was abusive and had a bad temper. Moreover, there was credible expert testimony directly indicating that defendant's behavior was the cause of the children's anxiety. There is no support in the record for defendant's allegations that plaintiff was abusive or a bad parent.
Furthermore, contrary to defendant's claims, Wolf-Mehlman did not support the reunification of the children with defendant. She recommended that the court designate plaintiff as the parent of primary residence and grant her the right to make decisions to avoid ongoing conflicts about the children.
We defer to the trial court's discretion in resolving custody and parenting time disputes. See Pascale v. Pascale, 140 N.J. 583, 611 (1995); see also Sacharow v. Sacharow, 177 N.J. 62, 80 (2003) ("The only limitation on the court is the application of correct legal principles to the facts . . . ."). The trial court's decision was not an abuse of its discretionary authority to determine what arrangement was in the best interests of the children.
With respect to the judgment of divorce, defendant contests the court's financial determinations, including the award of $700 per week permanent alimony to plaintiff and the division of the marital assets through equitable distribution. Generally, trial courts are permitted to exercise discretion in awarding financial support in a matrimonial action. See Pascale, supra, 140 N.J. at 594. We review the Family Part's decision on alimony for abuse of its discretionary authority. See Innes v. Innes, 117 N.J. 496, 504 (1990); Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000). In Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009), we elaborated on what our standard of review entails:
To vacate a trial court's finding concerning alimony, we must conclude that the trial
court clearly abused its discretion or failed to consider all of the controlling legal principles, or we must otherwise be satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering all of the proofs as a whole.
Applying this standard of review, we find no abuse of discretion or other reversible error here. The trial court's written statement of reasons for the award of alimony covered the factors listed in N.J.S.A. 2A:34-23(b) and reached reasonable findings and conclusions. Based on defendant's earning history, the court imputed income of $125,000 per year to defendant. "It was . . . within the judge's discretion, in addressing [a party's] earning capacities, to employ as a benchmark the amount of time [the party] had devoted to his work during the marriage and to expect him to continue working at that level." Clarke, supra, 349 N.J. Super. at 58.
Although defendant had a heart transplant and was disabled for a time, the evidence indicated he could resume working but had made no effort to do so. The court reasonably rejected his "wait and see" position pending resolution of the divorce case. In addition, even after his private disability payments ceased, defendant was able to continue his lavish spending habits. Finally on this subject, we view defendant's claim that plaintiff should be paying him alimony because of his disability as a further indication of the frivolous positions he took during this litigation.
On the subject of equitable distribution, "[o]ur role on review as we see it is to determine whether the result could reasonably have been reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence." Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978). We find no abuse of discretion in the court's essentially even allocation of marital assets and their equitable distribution in the divorce judgment. See La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000) (abuse of discretion standard applicable to distribution of marital assets), certif. denied, 167 N.J. 630 (2001). Evidence in the record supported the court's requirement that defendant be charged for amounts he had dissipated from marital assets after plaintiff filed the divorce complaint.
Last with respect to the appeal from the judgment of divorce, "the award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992); see also Gotlib v. Gotlib, 399 N.J. Super. 295, 314-15 (App. Div. 2008) (application of R. 5:3-5(c) and decision to award counsel fees rests within the court's sound discretion); Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004) (allowance for attorney's fees and costs remains discretionary). The court's several interlocutory orders and final judgment requiring defendant to reimburse plaintiff for her attorney's fees were not an abuse of discretion, especially since defendant had access to much greater income and assets and was primarily responsible for prolonging the litigation.
With respect to the appeal from the post-judgment orders, defendant argues that his filing of a notice of appeal on May, 29, 2013, deprived the trial court of jurisdiction to enter various provisions in its post-judgment orders of August 15, November 1, and November 22, 2013. He contends that Rule 2:9-1, concerning the control of litigation by an appellate court pending appeal, permits only enforcement remedies but the trial court modified terms of the divorce judgment and granted new remedies to plaintiff.
"The ordinary effect of the filing of a notice of appeal is to deprive the trial court of jurisdiction to act further in the matter unless directed to do so by an appellate court, or jurisdiction is otherwise reserved by statute or court rule." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 376 (1995) (citing Rolnick v. Rolnick, 262 N.J. Super. 343, 365- 66 (App. Div. 1993)). But the trial court is not deprived of continuing jurisdiction to enforce its judgments and orders pursuant to Rule 1:10. R. 2:9-1(a). In addition, Rule 1:13-1 provides jurisdiction in the trial court to correct clerical and calculation errors even when an appeal is pending. McNair v. McNair, 332 N.J. Super. 195, 199 (App. Div. 2000).
Rule 1:10-3 allows the court to provide coercive or punitive relief to litigants when an opposing party flagrantly defies a court order, including the awarding of counsel fees. In a family action, the court may use alternative methods to enforce a litigant's rights. Roselin v. Roselin, 208 N.J. Super. 612, 618 (App. Div.) (approving appointment of a receiver or other methods to transfer title of the marital residence when the defendant refuses to comply), certif. denied, 105 N.J. 550 (1986).
We have reviewed the three post-judgment orders that defendant challenges and find that, with one exception, they were all in the nature of enforcement of terms of the judgment of divorce. In ordering specific remedies, such as granting plaintiff the power to execute documents to implement the terms of the judgment as to equitable distribution, renewal of the children's passports, and life insurance policies, the court was compelled to devise such methods only because of defendant's recalcitrance in complying with the judgment.
In fact, it was defendant himself who filed post-judgment motions in the guise of correcting mathematical errors. His motions effectively sought reconsideration of certain provisions of the divorce judgment with which he disagreed. The trial court did not have jurisdiction to entertain such motions while an appeal was pending, Kiernan v. Kiernan, 355 N.J. Super. 89, 92 (App. Div. 2002), and it did not grant defendant's requests.
With respect to the beneficiaries designated for four life insurance policies, the trial court appears to have modified a specific term of the divorce judgment. The judgment required defendant to "maintain a policy of insurance of $300,000.00 by way of decreasing term on his life naming the Plaintiff as his beneficiary until his alimony obligation is satisfied or until further Order of this Court." Defendant was to fulfill this obligation within thirty days or to provide five letters of denial from insurance companies to establish that he could not obtain such insurance on his life. Defendant did not comply with that requirement of the divorce judgment.
By its August 15, 2013 post-judgment order, the court ordered that defendant immediately sign all necessary documents to designate the children as the beneficiaries of two existing life insurance policies and to designate plaintiff as the beneficiary on two other designated policies. The order also prohibited defendant from changing the beneficiary designation without further order of the court. Defendant did not comply with that provision of the August 15, 2013 order.
The court's November 22, 2013 post-judgment order authorized plaintiff to act as attorney-in-fact for several purposes including carrying out the beneficiary designations ordered on August 15, 2013. The November 22 order was worded specifically to indicate that five insurance policies on defendant's life, with a total death benefit of about $2.53 million, would designate "Plaintiff as beneficiary for the parties' two children [indicating children's names]."
While these provisions were a modification of the specific life insurance term of the divorce judgment, they were in keeping with the court's overall decision at that time requiring that defendant account for assets that he had unilaterally changed from marital property to his own after plaintiff filed for divorce. Testimony at the trial indicated that defendant had changed the beneficiary designations on his life insurance policies from plaintiff and the children to his parents. The court's post-judgment orders merely corrected that change and re-designated the children as the ultimate beneficiaries of all the policies. Plaintiff's role as a named beneficiary is to be the custodian for the children's benefit if payment is required under the policies. Plaintiff benefits only indirectly from the modification beyond the divorce judgment's requirement of a new $300,000 life insurance policy to protect her right to alimony.
Also, defendant argues irrationally that the court gave carte blanche to plaintiff to sign papers in place of defendant. The November 22, 2013 order lists very specifically the documents that plaintiff is authorized to execute, and each is designed to implement the terms of the divorce judgment.
We find no jurisdictional or other reversible error in the court's post-judgment orders, which were prompted by defendant's purposeful inaction and refusal to comply with the terms of the divorce judgment. As we stated previously, defendant's other arguments are without sufficient merit to warrant further discussion in this written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION