CATHY ANN HUSAIN v. MUKHTAR HUSAIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1003-04T31003-04T3

CATHY ANN HUSAIN,

Plaintiff-Respondent,

v.

MUKHTAR HUSAIN,

Defendant-Appellant.

________________________________

 

Submitted September 26, 2005 - Decided November 18, 2005

Before Judges Holston, Jr., and Gilroy.

On appeal from the Superior Court of New Jersey, Middlesex County, Chancery Division, Family Part, Docket No. FM-12-907-02-H.

Lanfrit and Tullio, attorneys for appellant (Lynne O'Carroll, of counsel; Ms. O'Carroll and Marc J. Friedman, on the brief).

Greenbaum, Rowe, Smith & Davis, attorneys for respondent, Estate of Cathy Ann Husain (Margaret Goodzeit, of counsel and on the brief).

PER CURIAM

Defendant, Mukhtar Husain (husband), appeals the September 30, 2004, order of equitable distribution entered in a separate maintenance action between himself and plaintiff, Cathy Ann Husain (wife). For reasons hereinafter expressed, we affirm in part; reverse in part; and remand the matter to the trial court for further proceedings consistent with this opinion.

The parties were married on November 14, 1987, and no children were born during the marriage. They enjoyed an upper middle-class lifestyle, both having worked for the majority of their marriage. Plaintiff completed one and one-half years of college, and worked as an office manager earning $42,500 annually. Defendant had a Bachelor's degree and worked for Hilton Hotels earning upwards of $100,000 annually. The parties owned a house in Smithtown (Long Island), New York, as well as three cars. They dined out often, enjoyed several trips to Europe, and vacationed regularly in South Carolina.

In 1998, while on vacation, the parties agreed to purchase a second home in South Carolina. They intended for plaintiff to relocate to South Carolina immediately and for defendant to join her after the sale of the New York home and transfer of his employment. Due to a lack of immediate funds, plaintiff's parents, the Tildens, agreed to advance monies for the purchase of the South Carolina residence. The Tildens were to be reimbursed upon sale of the New York residence. Defendant understood that once the Tildens were repaid, title would be transferred into the names of plaintiff and defendant only.

The South Carolina residence was purchased for $189,999. The Tildens contributed $35,000 as down payment and approximately $5,000 in closing costs. The purchase money mortgage was $151,950. The deed and mortgage were placed in the names of plaintiff and the Tildens. In June 1998, plaintiff moved into the South Carolina residence.

The New York residence was sold in August 1999, and the net proceeds, $21,000, was deposited into the parties' joint bank account in South Carolina. Defendant intended that the entire sum be paid to the Tildens; however, at no time did he issue them a check as payment on the loan. By the time defendant inquired of plaintiff as to the funds, only $10,000 remained in the account because plaintiff had used the money to maintain the South Carolina home. The parties paid $5,000 to the Tildens out of the remaining balance. In total, defendant paid the Tildens the $5,000, and contributed four mortgage payments of $1,149 each, along with three payments of $500 towards the South Carolina home. At all other times, the Tildens paid the mortgage for the South Carolina residence.

Plaintiff attempted to find work in South Carolina, but was unsuccessful. Defendant attempted relocation to South Carolina through his employer, but was also unsuccessful. During the period when the parties were physically separated, defendant visited plaintiff in South Carolina approximately one weekend per month. Plaintiff's father became ill, and plaintiff cared for him until his death in April 2000. Subsequently, defendant suffered a heart attack and plaintiff cared for him in South Carolina. While defendant's heart attack caused his work pace to decrease, his salary remained the same. In May 2000, due to defendant's lack of relocation, plaintiff filed for divorce and distribution of property in South Carolina. The court dismissed plaintiff's complaint for lack of jurisdiction. In September 2000, plaintiff was diagnosed with "demyelinating neuropathy," an irreversible disease that causes myelin sheath (the protective covering of the nerves) deterioration and weakening of the muscles. Over time, plaintiff lost her abilities to walk unaided, to feed and bathe herself, to see clearly, and to drive. Essentially, she could no longer conduct everyday activities or leave the house except to go to the doctor.

On May 7, 2001, plaintiff filed a second complaint for divorce in South Carolina, and a judgment for divorce was entered January 25, 2002. In the interim, defendant had moved to New Jersey, and jurisdiction over issues of support and property distribution were reserved to the New Jersey courts. On October 17, 2001, plaintiff filed a complaint for separate maintenance and a motion for pendente lite support in New Jersey. A hearing was held on the motion on December 10, 2001. A pendente lite order was entered on December 15, 2001, requiring that defendant pay plaintiff $1,600 per month in alimony.

During this period, plaintiff's medical condition increased in severity, such that she could no longer care for herself or live alone. Plaintiff's mother moved to the South Carolina residence to take care of her daughter. The Social Security Administration granted plaintiff permanent disability status. Plaintiff was awarded a lump sum disability payment of $19,706 in March 2003, which she kept in her checking account. Plaintiff did not start receiving disability payments until April 2003, in the amount of $1532 per month, which was reduced to $1497 per month beginning February 2004. The lump sum payment was equivalent to disability payments from the benefit start date of February 2002 through March 2003, at approximately $1500 per month.

Throughout the parties' marriage, medical coverage was provided through defendant's employer. After plaintiff's diagnosis in 2000, she continued to be covered under defendant's medical insurance. There was initially some confusion over which insurance cards were to be used by plaintiff. However, within several months defendant provided plaintiff with the correct card. In the interim, plaintiff paid her medical expenses out of pocket. For an unknown reason, defendant's insurance carrier periodically denied plaintiff's claims. Plaintiff accumulated an unpaid balance of $28,503.16 in medical bills before she was able to obtain coverage under Medicare in February 2002.

After the parties' divorce, defendant continued to dine at restaurants, traveled for both business and pleasure, and essentially maintained the marital lifestyle. In 2002, defendant purchased a home in Manalapan, New Jersey, and funds for both the deposit and closing costs came from a personal checking account which he held from 1999 to 2002. He also purchased a 1996 Jaguar, which was financed.

A trial was held on February 23-24, 2004, to determine equitable distribution and resolve alimony issues. Plaintiff and defendant were the only witnesses. Plaintiff testified via telephone because of her medical condition.

Between the time that plaintiff moved to South Carolina in 1998, and the date of trial, plaintiff had limited income, initially, because she was unable to find a job; and later, because illness prevented her from holding employment. Between 1998, and March 2003, plaintiff's sole source of funds, apart from pendente lite support which began in 2002, to maintain the South Carolina home were: $16,000 from the sale of the New York home; $1,500 that defendant sent plaintiff in three payments of $500; and plaintiff's credit cards. Plaintiff received the lump sum disability payment in March 2003, and began receiving monthly disability payments thereafter. At the time of trial, excluding alimony, plaintiff's monthly income was limited to $1,497 in disability payments. Plaintiff's monthly budget totaled $3,708.58 including, among other things: $1,512.45 for mortgage, taxes and insurance; $725 for utility and other house related bills for the South Carolina home; and $1,209.25 in personal expenses.

Defendant's annual salary after bonuses for 2003, was $130,186.88. His net monthly income was approximately $8,172, which included $5,924 in net salary after voluntary deductions; $1,644.58 per month from Social Security; and $604.94 per month from a pre-marital pension with another employer. Defendant also had several investment accounts which were pre-marital. Defendant's monthly expenditures totaled $6,684, including $2,134 in housing expenses; $1,235 in transportation expenses; and $3,315 in personal expenses.

At close of testimony, plaintiff's attorney moved for attorneys' fees. The court ordered that defendant submit an updated case information statement (CIS); pay for an appraisal of the South Carolina home; and provide the value of his Hilton pension and the balance in the parties' joint savings account. The court also ordered that the parties attempt to agree on the division of personal property in the South Carolina residence, and provide written summations.

On May 20, 2004, plaintiff died from her illness at the age of forty-five. Defendant was sixty-nine years old at that time. On June 10, 2004, a consent order was entered terminating future alimony. On August 10, 2004, the court issued a written decision determining in part that since plaintiff died before the decision, funds due plaintiff were to be paid to her estate. The trial court issued a confirmatory order of equitable distribution on September 30, 2004.

Under the terms of the order, the court awarded plaintiff: the home in South Carolina, one used automobile, and the $19,[706] lump sum Social Security disability payment. The order also provides:

[1] [D]efendant is to pay to the plaintiff's estate the sum of $71,050.00. This sum represents a retroactive increase in alimony in the amount of $950.00 per week from December 15, 2001 (the date of the pendente lite Order) to May 20, 2004 (the date of plaintiff's death) ($950 x 127 weeks = $120,650.00), less a credit given to the defendant of $1,600.00 per month paid during that time ($1,600 x 33 months = $49,600.00);

. . .

[2] [D]efendant is responsible to repay the plaintiff's estate the sum of $50,315.87. This sum represents one-half of the bills less a $5,000.00 credit for the down payment made by defendant ($110,631.75 x 1/2 - $5,000); . . .

[3] [D]efendant and/or his insurance company is responsible to pay the plaintiff's outstanding medical bills totaling $28,503.16, incurred by the plaintiff while in South Carolina, as well as any and all medical bills which have not been picked up either by Social Security or his insurance company up to January 25, 200[2]. The plaintiff's estate is responsible for those medical bills after the date of the divorce[;] . . . .

[4] [D]efendant is to pay to the plaintiff's estate the sum of $455.75, representing one-half of the balance of the EAB Account ($911.49 x 1/2); . . .

[5] [T]hat the outstanding credit card debt is to be divided equally between the parties; specifically, the defendant is responsible for $8,122.28 of plaintiff's $16,244.56 credit card debt[,] and the plaintiff's estate is responsible for $11,957.64 of the defendant[']s $23,915.29 credit card debt[,] the net result being that the defendant will receive a credit toward the monies herein due in the amount of $3,835.36 and each party will pay their own bills; . . .

[6] [D]efendant is to pay to the plaintiff's estate the sum of $38,100.00. This sum represents $300.00 per week from December 15, 2001[,] to May 20, 2004[,] ($300 x 127 weeks) as a reasonable payment by the plaintiff to her mother for taking care of her; . . .

[7] [D]efendant is to pay to the plaintiff's estate the sum of $63,597.00. This sum represents the stipulated 50% split of the marital coverture portion of the defendant's 401K Savings Plan and Retirement Savings Plan ($19,583.00 + $44,014.00); . . .

[8] [D]efendant is to pay to the plaintiff's estate an amount representing 50% of the current balance of the marital coverture portion (63.97%) of balance out of his Merrill Lynch IRA, to be calculated upon the defendant's providing to the plaintiff's counsel a statement showing the current value of his IRA account within 30 days of the date hereof[;]

[9] [T]hat counsel fees and costs are awarded to Linda A. Osman, Esquire, the plaintiff's counsel, in the amount of $12,399.00, pursuant to her Certification January 26, 2004. This is in addition to any other counsel fees and costs previously awarded. In addition, the Court awards an additional $525.00 to the plaintiff's counsel as counsel fees for the preparation of the within document.

On appeal, defendant challenges Paragraphs [1], [2], [3], [6], and [9]. Defendant also argues that the trial judge erred by not equitably distributing funds in plaintiff's IRA account.

A trial court, in a contested action tried without a jury, "shall . . . find the facts and state its conclusions of law thereon" upon entering its decision in the matter. R. 1:7-4(a).

The purpose of the rule is threefold: (1) to aid the trial court in making a correct factual decision and a reasoned application of the law to the facts; (2) to define for purposes of res judicata and estoppel by judgment the issues then adjudicated; and (3) to aid the appellate court on review.

. . . .

The duty of the judge to find the facts specially and state separately his [or her] conclusions of law thereon, or to file an opinion or memorandum statng the facts and the court's opinion on the law, should logically precede the entry of the appropriate judgment.

The judgment represents the ultimate discharge of the judicial function and must necessarily reflect the judge's findings and conclusions - - the end product of his [or her] mental processes.

[Testut v. Testut, 32 N.J. Super. 95, 100-01 (App. Div. 1954).]

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision below.

Defendant first argues that the trial judge erred in granting retroactive alimony, contending that the right to alimony is a personal right, not a property right; and the right terminated on the death of plaintiff. We disagree.

The right to receive future alimony is a personal right which terminates at death. Sutphen v. Sutphen, 103 N.J. Eq. 203, 205 (Ch. 1928). Here, we are not concerned with future alimony, but with a retroactive modification of a pendente lite support order. A judge sitting in the Family Part has "broad equitable powers . . . to accomplish substantial justice," including that of retroactively modifying support orders. Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). Such equitable power includes the authority to modify pendente lite support orders at the time of entry of final judgment. Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995). We conclude that there is no legal impediment to a court retroactively modifying a pendente lite support order based on evidence received prior to the death of the receiving spouse.

Although we conclude that the judge had inherent authority to consider retroactive modification of the pendente lite support order, we determine that the judge failed to consider all factors under the alimony statute, N.J.S.A. 2A:34-23b. The Legislature in enacting the statute established twelve factors which the judge is obligated to consider in setting alimony, along with "[a]ny other factors which the court may deem relevant." N.J.S.A. 2A:34-23b(13). Here, the record is devoid of the trial judge's analysis of the statutory factors. The judge only noted that defendant earned $154,504 per year, and the plaintiff received $17,163 annually. After referencing the income of the parties, the judge awarded $950 per week alimony from the date of the pendente lite order, December 15, 2001, less payments made by defendant since that date. There is no explanation of how the judge arrived at a $950 per week support payment. The record does not disclose whether the judge considered the tax consequences of defendant having to withdraw funds from his 401K or IRA retirement plans, nor the disparity in the cost of living standards between New Jersey and South Carolina; the assistance that plaintiff received from her parents because her parents were part owners of the house in South Carolina; and the effect, if any, of the death of the receiving spouse. These are factors which should have been considered by the judge in determining the amount of alimony that plaintiff was entitled to receive during the period of pendente lite support. We reverse that portion of the order awarding retroactive alimony, and remand the matter for the trial court to consider anew the amount of retroactive alimony under the factors required by statute.

Defendant next challenges that portion of the order awarding plaintiff the sum of $300 per week from the date of the pendente lite order, December 15, 2001, to date of the plaintiff's death, May 20, 2004, (127 weeks) for a total award of $38,100 as reimbursement for what the judge found to be "a reasonable payment by plaintiff to her mother for taking care of her" during her illness. Defendant argues that this portion of the judgment was entered sua sponte by the court, not having been sought by plaintiff in the pleadings, and is unsupported by any credible evidence in the record. Plaintiff concedes that she did not make a demand for reimbursement for the value of her mother's caretaking services. However, she argues that the judge had the inherent authority to amend her pleading to conform to the proofs at trial, R. 4:42-6, and the discretion to compensate her mother for the time spent in caretaking plaintiff in view of defendant's more than sufficient income to cover the costs of the same. We concur with defendant.

As conceded by plaintiff, her pleadings do not contain a request for payment from defendant to cover the costs of plaintiff's mother's caretaking services. We carefully reviewed the record and find that it is devoid of any facts establishing that there was a monetary obligation owed by plaintiff to her mother for services rendered. Nor is there any evidence that the mother ever expected to be reimbursed for the time that she devoted to her daughter during her daughter's illness. Not every act of love by a parent to a child is required to be reduced to a monetary equivalent. Generally, it constitutes a gift of oneself to another. Because the record is devoid of any evidence establishing a monetary obligation, such as a promise by plaintiff to repay her mother for her caretaking time, we conclude that the judge erred in rendering an award directing defendant to pay to plaintiff an additional $38,100 for the time plaintiff's mother spent caretaking. We reverse that portion of the order.

Defendant next argues that the court erred in ordering him to pay plaintiff $50,315.87, representing one-half of the amount claimed as costs for maintaining the South Carolina home during the period of pendente lite support to the time of plaintiff's death. Defendant contends that the award was improper because he never lived in the home; plaintiff and her parents owned the property; he was paying pendente lite support to plaintiff; and plaintiff's interest in the property transferred to her mother as the lone survivor of the three individuals who held title to the property. This issue has been rendered moot. Plaintiff candidly concedes that it was error for the judge to direct defendant to reimburse plaintiff for costs in maintaining the South Carolina home, acknowledging that plaintiff's shelter expenses were included in plaintiff's budget forming the basis for the pendente lite support order. This is a matter that will be considered anew by the court on remand of the first issue, the amount of any retroactive alimony award under the factors set forth in the alimony statute, N.J.S.A. 2A:34-23b. As such, we reverse and vacate that portion of the award directing defendant to plaintiff $50,315.87, in addition to the pendente lite support payments, as his share of the costs to maintain the South Carolina property.

Defendant next argues that the judge erred in awarding counsel fees and costs to plaintiff's counsel in the amount of $12,399, together with an additional $525 for preparation of the final judgment of divorce. Defendant contends the judge failed to state reasons for the award of counsel fees and requests that this court exercise original jurisdiction and deny the application in its entirety. Plaintiff concedes that the judge may not have explicitly articulated his reasons for the award of counsel fees and requests this court exercise original jurisdiction and uphold the award.

"An award of counsel fees is within the discretion of the trial court." Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998). "In determining whether a counsel fee should be imposed, the court must look at the requesting party's need, the other party's ability to pay, and the good and bad faith of each party." Ibid. (citing N.J.S.A. 2A:34-23). A trial judge must also address the pertinent factors under R. 5:3-5(c) when considering to award counsel fees in a matrimonial action. Clarke v. Clarke, 359 N.J. Super. 562, 572 (App. Div. 2003). In doing so, the court is required to make findings of fact. R. 1:7-4. Our review of the judge's decision discloses no evidence of that analysis, nor of any other expressed reasons for the awarding of counsel fees. Because we are remanding this matter for further review on other issues, we decline to exercise original jurisdiction; vacate that portion of the order awarding counsel fees; and remand the issue to the trial court for further consideration and explanation.

Defendant's next argument concerns the judge's determination that he is responsible for payment of outstanding medical bills in the amount of $28,503.16 incurred by plaintiff after moving to South Carolina and prior to being declared Medicare-eligible under Social Security in February 2002.

Defendant concedes that it was his responsibility to provide healthcare coverage for plaintiff through defendant's employer's health maintenance organization (HMO) prior to divorce. After plaintiff relocated to South Carolina, she was not provided with a valid HMO identification card for several months. The first card provided by defendant was for the wrong HMO. The second card provided required plaintiff to obtain medical referrals from a primary care physician in New Jersey. Eventually, plaintiff was provided with a valid HMO identification card, requiring her to obtain medical referrals through a primary care physician in South Carolina and to only use in-network providers. Plaintiff testified that she followed all procedures of the HMO when seeking healthcare, and notwithstanding, the HMO denied medical benefits. When payments were denied, Explanation of Benefits (EOBs) were provided by the HMO to defendant as the insured employee, not plaintiff. Defendant failed to provide the EOBs to plaintiff, except on one occasion after plaintiff's counsel obtained the EOBs through defendant's counsel. Thereafter, plaintiff received no further EOBs. Plaintiff incurred unpaid medical bills up to the time that she became Medicare-eligible in the total amount of $28,503.16.

Defendant contends that the judge erred in directing that defendant be responsible for payment of plaintiff's medical bills with the judge stating as his reasoning:

With regard to the outstanding medical bills totaling $28,503.16, these bills were incurred by the plaintiff while in [South] Carolina. The court simply does not accept the defendant's explanation that the various insurance companies that he had covering the plaintiff would somehow not cover her expenses. As such, the court finds the entire amount of $28,503.16 is due from the defendant and/or his insurance companies to the plaintiff.

Defendant contends that he provided plaintiff with a proper insurance identification card and that it was plaintiff's responsibility to follow up on denial of payments, not his. Plaintiff counters that defendant was the party who received the EOBs from the insurance company and had the responsibility to either follow up on denial of payments or to promptly forward the EOBs to plaintiff, which he failed to do, except in the one instance. Plaintiff contends that the judge rejected defendant's explanation for failure to follow up with the insurance company, and after weighing the equities between the parties, with defendant having the ability to pay and plaintiff suffering severe physical disabilities, the judge properly determined that the obligation to pay the outstanding medical bills rested with defendant.

While we conclude that the judge has inherent authority to impose the obligation of paying the outstanding medical bills on defendant under the equities of the case, we determine, like issues before, that the judge failed to adequately explain his reasoning behind his conclusion that defendant is the responsible party. The stated reason fails to explain why he concluded that responsibility lies with defendant. Therefore, we vacate that portion of the order, and remand the matter to the trial court for further consideration and explanation.

Defendant next challenges the judge's failure to equitably distribute funds contained in plaintiff's IRA that had an approximate value of $4,000. Plaintiff argues against distribution, contending that defendant was left with two and one-half times the amount of retirement monies distributed to plaintiff because he had a substantial amount that was pre-marital in nature. Although plaintiff may be correct in proffering what should be the end result of the judge's consideration of distribution of the asset, it is clear from the record that the judge never considered the asset for distribution, notwithstanding it was accumulated during the marriage. Therefore, we direct that the judge consider equitable distribution of the asset on remand.

Lastly, plaintiff argues in her brief that the judge erred in failing to distribute the $19,000 bank account controlled by defendant although the bank account was in existence at the time plaintiff filed her complaint in South Carolina. We disagree. Plaintiff never cross-appealed from the order of distribution, and therefore, the issue "is not properly before us." Seacoast Builders Corp. v. Jackson Tp. Bd. of Educ., 363 N.J. Super. 373, 381 (App. Div. 2003). We also note that this account was disclosed as an immune asset in defendant's 2001 CIS, a fact that was never challenged by plaintiff.

 
We reverse in part; vacate in part; and remand to the trial court for further proceedings in accordance with this opinion. In all other respects, the order under review is affirmed. We do not retain jurisdiction.

As discussed infra, plaintiff died on May 20, 2004, subsequent to close of evidence, but prior to the trial court's decision. Although the order of equitable distribution appealed from directs payments to the "plaintiff's estate," the briefs on appeal continue to refer to the deceased wife as "plaintiff." Accordingly, for the purpose of this opinion, we refer jointly to the deceased wife and her estate as "plaintiff."

These figures are from defendant's testimony. We note that the figures differ from the amounts shown on the defendant's CIS, which discloses total monthly expenditures of $7,208, including $2,064 in housing expenses, $1,015 in transportation expenses, and $4,129 in personal expenses. The total housing expense on the CIS is also internally inconsistent with the sub-total figure of $2,238.

Estimated by defendant to be approximately $80,000.

(continued)

(continued)

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A-1003-04T3

November 18, 2005