JILL E. WEIMER v. WILLIAM WEIMER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5065-02T55065-02T5

JILL E. WEIMER,

Plaintiff-Appellant/

Cross-Respondent,

v.

WILLIAM WEIMER,

Defendant-Respondent/

Cross-Appellant.

_________________________________________

 

Argued: November 1, 2004 - Decided:

Before Judges A. A. Rodr guez, Cuff and Weissbard.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-603-00.

William M. Laufer argued the cause for appellant/cross-appellant (Laufer, Knapp, Torzewski & Dalena, attorneys; Mr. Laufer, of counsel; Jennifer L. McInerney, on the brief).

Kevin Weinman argued the cause for respondent/cross-appellant (Belsole and Kurnos, attorneys; Mr. Weinman, on the brief).

PER CURIAM

Plaintiff, Jill Weimer (wife), appeals from several aspects of a dual judgment divorcing her from defendant William Weimer (husband). She contends that the judge erred by: (1) awarding her limited duration alimony instead of permanent alimony; (2) allocating responsibility for private school tuition for the daughter based on an erroneous imputation of income to her husband; (3) distributing the marital assets in an inequitable manner; (4) failing to award her additional attorney's fees despite her minimal assets and husband's bad faith throughout the litigation; (5) making her responsible for a portion of the marital debt; and (6) failing to require that husband engage in psychotherapy as a condition of visitation as recommended by the court-appointed psychologist. Husband cross-appeals from the judgment contending that: (1) the award of equitable distribution to wife was excessive; (2) the judge erred by making him responsible for two-thirds of the private school tuition; (3) the awarding of an additional $40,000 in attorney's fees to wife was in error because she unreasonably refused to settle the matter before the trial; and (4) the preclusion of testimony by husband's expert was plain error. We affirm the award of $40,000 in counsel fees to wife and the visitation order, but reverse and remand the remaining contentions on appeal.

I

The parties were married in 1989. One daughter was born of the marriage, who is now fifteen years old. At all times during the marriage, there was a wide difference in the parties' ability to earn an income. Wife is a high school graduate with two years of college credits. Prior to the marriage, wife worked part-time as a property manager and real estate salesperson. The most she ever earned was approximately $23,000. She does not know how to type, does not have computer skills and did not work outside the home during the marriage. Beginning at the time of her pregnancy, wife has suffered from severe migraine headaches. According to wife, these headaches occur three weeks out of each month and vary in intensity. Some interfere with the activities of her daily life, while others require hospitalization. These complaints have been corroborated by Kenneth Cerny, M.D., her neurologist. In his opinion, the severity of the headaches would interfere with her ability to hold down a full-time job, and the side effects from the medications would blur her vision and make it difficult for her to concentrate.

Husband earned a substantial salary as an actuary until he resigned his position in the reinsurance industry. Husband holds a bachelor of arts degree and a master's degree in statistics. In 1978, he went to work for Chubb and Son, Inc., as an actuarial trainee for a period of two years. He then worked for General Reinsurance Corporation, and later for F&G Re as a reinsurance underwriter. Subsequently, husband worked for Underwriters' Re Corporation in California. His starting salary was $85,000 a year, with an additional "sign-on" bonus of $50,000. He received bonuses of $75,000 in each of the next three years.

In 1990, the parties briefly separated and wife moved to her parents' home in New Jersey where she gave birth to their daughter. According to wife, she left husband shortly after he was arrested for exposing himself to women on Ventura Boulevard in Los Angeles. Husband agreed to marriage counseling and underwent court-ordered therapy for sexual addiction. Shortly after their separation, husband terminated his employment with Underwriters Re and followed wife to New Jersey to effect a reconciliation. He received severance pay of about $120,000. The parties reconciled and moved into a three-bedroom ranch home in Morris Township, which was owned by husband prior to the marriage. In 1992, the original ranch structure, which was the marital home, was extensively renovated, adding several thousand square feet of living space to the home. The cost of the renovation was approximately $200,000. Wife testified that she served as a general contractor during the renovation of the property. She retained various subcontractors and worked with the architect, Peter Dorne, who designed the renovation. Husband denied that wife served as general contractor. Dorne testified regarding wife's substantial efforts in accomplishing the renovation.

In 1991, husband left his employment to pursue self-employment. He entered into a contract to purchase National Heritage Insurance Agency (NHI), a small insurance company in Toms River for $195,000, payable in installments. However, operating NHI proved to be a struggle because the seller had failed to deposit a substantial number of premiums with the insurance carriers thereby reducing the value of the business. Husband sued the seller of NHI, seeking both rescission of the purchase agreement and damages. The dispute was eventually referred to arbitration. After four years of arbitration, the matter was settled. Husband agreed to pay the seller $115,000, rather than the agreed upon purchase price, and to discontinue his claim for rescission.

Due to NHI's limited revenue, in January 1996, husband became employed by F&G Re in Morristown. In his first year with that company, which was a partial year, he earned about $170,000. Over the next two years, husband was given increased responsibilities at F&G Re, and by 1998 husband was employed as a senior vice-president. In 1997, he earned $263,000; in 1998, he earned $407,794; and in 1999, he earned $365,440, including bonuses. In 1998, F&G Re merged with St. Paul Re, and husband, as well as other senior executives, were guaranteed job security and salaries for a three-year period.

However, shortly after the divorce complaint was filed in November 1999, husband's job with St. Paul Re ended. He was offered a $175,000 severance package. Husband maintains that he was fired. Wife argues that he quit. The judge determined that husband engineered his own termination. At the time, the marital home was unencumbered and husband owned a Merrill Lynch account worth $135,000.

According to husband, his sole income after this point was a gross income of $50,000 yearly from the NHI agency. To pay the family's expense, he used the $135,000 Merrill Lynch account and encumbered the marital residence with a $100,000 mortgage. Husband made only one or two mortgage payments, and allowed the home to go into foreclosure.

In addition to the marital home, the parties also owned two income producing properties, a ten-unit rental property in Oregon and a six-unit rental property in Ocean Grove. After the filing of the divorce complaint, husband used his severance pay from St. Paul Re to purchase a commercial property in Toms River to house NHI.

The parties' lifestyle reflected the husband's high income. The family's monthly budget was $13,000. The wife had a maid, a personal secretary, a gardener and a handyman to assist her in maintaining the household. She owned a horse and took riding lessons along with her daughter. The parties took expensive vacations. The wife drove a 1996 Mercedes Benz.

In 2000, husband and wife each filed a domestic violence complaint against the other. Following a hearing, Judge Harper dismissed the complaint against wife and found that husband had committed an act of domestic violence. The judge entered a final restraining order and barred husband from the marital residence. Thereafter, husband failed to pay health insurance and utility bills. As a result, the health insurance for wife and daughter was cancelled and the utilities were several months in arrears.

Upon wife's application, Judge Schaeffer directed husband to pay $3,500 a month in unallocated support through the Morris County Probation Department. This was followed by numerous pendente lite applications by both parties. Several orders were entered, followed by enforcement proceedings. Husband's response to any order to pay can only be characterized as defiant and recalcitrant. For example, in August 2001, Judge Schaeffer issued an arrest warrant due to husband's failure to pay support arrears. On August 28, 2001, husband was arrested and remained in custody for two weeks. Judge Hansbury conducted an "ability to pay" hearing. The judge "concluded that [husband] does have the ability to pay . . . and is refusing to do so in contempt of the court." Accordingly, Judge Hansbury directed that husband remain incarcerated until he posted a bond in the amount of $20,000. On August 31, 2001, husband moved for modification of a prior order that restrained him from dissipating marital assets in order to sell the Ocean Grove property to satisfy the bond. Following oral argument, Judge Hansbury ordered the immediate listing and sale of the Ocean Grove property, and upon sale, the proceeds were to be held in escrow by wife's attorney. The judge released husband from custody.

The parties were unable to resolve their financial disputes and the matter was tried on seven dates from August 26, 2002 to October 24, 2002. On February 25, 2003, the trial judge issued an oral decision determining several issues including child support, alimony, and equitable distribution. On the same day, a dual judgment of divorce was entered. Several weeks later on April 15, 2003, the judge issued an oral decision regarding attorney's fees and the allocation of the daughter's private school tuition expenses.

The judge's findings can be characterized as sparse. Husband was ordered to pay limited duration alimony at a rate of $550 per week for eight years and $279 per week in child support. In fixing this amount, the judge imputed an annual income of $20,000 to wife and $155,000 to husband. The judge did not articulate reasons nor did he identify the proofs that supported the imputation of income in those amounts.

Regarding equitable distribution, the judge ordered that the marital residence be sold. Further, the judge awarded $450,000 from the anticipated sale proceeds to the wife, with husband retaining the balance. Husband was awarded the NHI insurance agency, the Toms River property and the Oregon property. Husband was also awarded the balance of the proceeds derived from the sale of the Ocean Grove property.

The marital debt, totaling $229,463, was apportioned twenty-five percent to wife and seventy-five percent to husband.

The annual tuition and related expenses of the daughter at Morristown-Beard School were allocated two-thirds to husband and one-third to wife. Wife has the sole discretion to decide whether the daughter would continue at this school. The judge awarded wife $40,000 in counsel fees, in addition to pendente lite counsel fee awards.

Husband moved for enforcement of the judgment. Wife cross-moved for a stay of enforcement pending an appeal. The judge denied the request for a stay and directed wife to cooperate in effectuating the sale of the marital home. In addition, wife's attorneys were directed to release to husband the balance of the proceeds from the sale of the Ocean Grove property. Wife moved before us for a stay pending appeal. We denied this request.

II

On appeal, wife contends that the alimony award of $550 per week for a period of eight years should be reversed because the judge failed to perform a proper analysis of the statutory factors set forth in N.J.S.A. 2A:34-23(b) and failed to make appropriate findings of fact. Specifically, wife argues that the court failed to accord sufficient weight to, or make adequate findings regarding the following factors: the length of the marriage, her childcare responsibilities, the marital lifestyle, her need for support and husband's ability to pay. We agree that the judge failed to articulate the reasons for his decision and failed to make findings of fact. Thus, we remand the alimony award.

The judge found it "clear" that the parties had "an upper middle class lifestyle." Although the judge did not characterize their lifestyle as "lavish," he found that it was "certainly reasonably privileged." In reaching this conclusion, the judge noted several facts including: the size of and improvements to the marital residence, the "very nice" neighborhood location, the testimony regarding the employment of a maid, assistants and a gardener on a periodic basis, the "upscale" stores that the parties shopped at, the "nice" restaurants where they ate with "reasonable frequency," the vacations they enjoyed, the recreational activities they participated in including horseback riding, and the luxury cars they drove - albeit, wife's Mercedes was not "top-of-the-line." Despite these observations, the judge did not relate his alimony determination to the wife's ability in the future to maintain such lifestyle. This deficiency precludes appellate review.

Appellate review of financial determinations in a divorce action is narrow. A trial judge in a bench trial must make findings of fact and state conclusions of law. Rule 1:7-4. "Naked conclusions do not satisfy the purpose of" this rule. Curtis v. Finneran, 83 N.J. 563, 570 (1980). The trial judge must clearly state the factual findings and relate those findings to relevant legal conclusions "so that the parties and the appellate courts may be informed of the rationale underlying [the] conclusion." Esposito v. Esposito, 158 N.J. Super. 285, 291 (App. Div. 1978). This requirement applies to matrimonial cases. Harmon v. Harmon, 161 N.J. Super. 206, 211 (App. Div. 1978); Wertlake v. Wertlake, 137 N.J. Super. 476, 485-86 (App. Div. 1975). It is impossible, in the absence of such findings, to determine whether the trial court's decision was supported by substantial credible evidence on the record. Mol v. Mol, 147 N.J. Super. 5, 9 (App. Div. 1977). Therefore, "[t]rial judges should always state their reasons so that counsel and an appellate tribunal may be fully informed. A mere recitation of factors considered is not sufficient." Monte v. Monte, 212 N.J. Super. 557, 564-65 (App. Div. 1986) (citations omitted).

Such analysis is lacking here. Therefore, we must remand so that the trial judge can supplement his decision by making specific findings consistent with this analysis.

III

Wife also contends that because the judge erred in imputing income to both parties, the child support award and the allocation of the child's private school tuition must be re-calculated using the appropriate income levels. On cross-appeal, husband argues that the judge's apportionment of the private school tuition was in error for several reasons: the private school the daughter attended throughout the marriage was far less expensive, wife made the decision to change schools without consulting him, and there were no special needs to support the decision.

We note a similar lack of analysis by the trial judge with respect to the child support award and allocation of tuition costs. For example, the judge ruled that wife would be responsible for one-third of the daughter's educational expenses, although this exceeded her proportionate share based upon the income imputed to her. Thus, we must remand for further findings. Upon remand, child support should be re-calculated in a way that is consistent with the Child Support Guidelines. Pressler, Current New Jersey Court Rules, Appendix IX-A to R. 5:6A (2004).

The source of a court's authority to order a non-custodial parent to contribute to a child's private school education lies in N.J.S.A. 2A:34-23, which sets forth the factors that are relevant to a determination of child support. One of those factors is the "[n]eed and capacity of the child for education, including higher education." N.J.S.A. 2A:34-23(5). The child support guidelines, however, do not take into account certain "predictable and recurring expenses for children that may not be incurred by average or intact families such as private elementary or secondary education. . . ." Pressler, Current New Jersey Court Rules, Appendix IX-A to R. 5:6A at 2414 (2004).

In Hoefers v. Jones, 288 N.J. Super. 590, 611-12 (Ch. Div. 1994), aff'd o.b., 288 N.J. Super. 478 (App. Div. 1996), we adopted a fourteen-factor test to assist in the determination of whether a non-custodial parent should be required to contribute to private elementary school tuition. If such a determination is supported by sufficient credible evidence in the record and is "reasonable under the circumstances," it will be upheld. Finter v. Zenn, 335 N.J. Super. 439. 445-46 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001).

Here, the judge gave the best interests of the child paramount consideration in requiring the parties to contribute to the private school expenses. The judge did not specifically comment on the relevant Hoefers factors. More importantly, the judge did not explain why husband's obligation is limited to two-thirds of the cost.

IV

Wife also challenges equitable distribution of marital assets, arguing both that the judge did not adequately consider the statutory factors set forth in N.J.S.A. 2A:34-23.1, and that he failed to make findings of fact to indicate how the award was calculated. Husband requests a remand on the issue of equitable distribution contending that the judge failed to make specific findings of fact relative to the assets available and the value of each asset, thereby precluding meaningful appellate review of the award to wife. We agree with these contentions. In a separate point heading, wife argues that the judge erred in making her responsible for twenty-five percent of the marital debt.

In his oral opinion, the judge briefly discussed some of the relevant statutory criteria set forth in N.J.S.A. 2A:34-23.1, including the age and health of the parties, their earning capacities, and the duration of the marriage. He stated that it was "of some significance" that husband "brought . . . significant assets to the marriage and [wife] did not." However, the judge acknowledged that the increase in value of the marital estate was "attributable to the efforts of both parties." The judge explained that, in the process of equitably distributing the assets, he ultimately awarded "more" to wife in consideration of the fact that "[t]here has been less support available throughout the pendente period" because of husband's conduct in leaving St. Paul Re.

For the reasons that follow, we conclude that the judge did not deal adequately with the contested equitable distribution issues. We begin our analysis by stating the governing principles. A judge is vested with broad authority to divide the parties' property. The appellate court, in reviewing the lower court's decision, will consider only whether the result was "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." Wadlow v. Wadlow, 200 N.J. Super. 372, 382 (1985) (quoting Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978)). The Supreme Court requires the trial judge, when equitably distributing marital assets, to employ the following three-step procedure: (1) identify the specific property determined to be subject to equitable distribution; (2) determine the value of each asset, and (3) equitably distribute the assets. Rothman v. Rothman, 65 N.J. 219, 232 (1974). This three-step process was incorporated by the Legislature in N.J.S.A. 2A:34-23.1. The statute requires that, "in every case, the court shall make specific findings of fact on the evidence relative to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution. . . ." Ibid. The judge most requires the litigants to carefully review all eligible property interests they possess and come to court prepared to testify fully and accurately with respect thereto. Rothman v. Rothman, supra, 65 N.J. at 233.

Throughout the course of this litigation, wife claimed with specificity that the marital residence, the investment account, and all of the investment properties owned by husband were subject to equitable distribution. She made the following allegations:

The proceeds from the sales of the two pre-marital California properties were not immune because marital funds were used to pay down the mortgages, wife managed the properties, and the proceeds from the sales were not segregated from marital funds.

The Oregon property was not immune because marital funds were utilized to pay off the mortgage. Accordingly, she was entitled to an equal share of this property valued at $300,000, with a credit to husband for his initial down payment of $16,500.

The Ocean Grove property was not immune as it was purchased in contemplation of marriage and marital funds were used to pay off the mortgage. Thus, she was entitled to an equal equitable share of $173,240.

She was entitled to 50% of the value of the Toms River property, which was purchased with $145,000 of the $175,000 in severance pay husband received from St. Paul Re.

She was entitled to an equitable share of NHI, which was purchased during the marriage with marital funds. NHI was valued by an expert at $57,500.

She was entitled to a 50% share of the Merrill Lynch investment account based upon its date of complaint value of $115,602.

She should not be responsible for any portion of the NHI arbitration settlement or the attendant attorney's fees because she was not awarded an equitable share of NHI, husband did not consult with her in settling the matter, and he unilaterally procured a mortgage on the marital residence after the complaint was filed in order to satisfy the arbitration settlement.

Finally, wife asserts that because she was not awarded a percentage of the value of the Ocean Grove property, it was error to make her responsible for any portion of the capital gains tax resulting from its sale.

On the other hand, husband maintained that the real properties, with the exception of the one in Toms River, were immune from equitable distribution because he purchased them before the marriage and did not dedicate marital funds to their upkeep. However, he agreed that wife was entitled to a credit of the $66,500, representing one-half of the marital funds used to pay off the Ocean Grove mortgage. He also agreed that wife was entitled to one-half the value of the Toms River property.

Despite these discrete allegations, the judge did not resolve the competing equitable distribution claims. Thus, we cannot determine from the judge's oral decision, how he classified each asset identified by the parties for his consideration. The judge clearly failed to make the requisite findings of fact regarding the three-step procedure enumerated in Rothman v. Rothman, supra, 65 N.J. at 232. Further, he failed to properly identify and explain the use of the statutory guideline criteria set forth in N.J.S.A. 2A:34-23.1. Monte v. Monte, supra, 212 N.J. Super. at 564-65.

Accordingly, the provisions of the judgment concerning equitable distribution must be reversed and remanded. On remand, the judge should make more specific findings of fact and conclusions of law regarding each of the assets that the parties alleged were subject to equitable distribution. Monte, supra, 212 N.J. Super. at 568-69. In the event that any of these items, or portions thereof, constitute assets of the marriage subject to equitable distribution, they should be included in calculating the total value of the marital property to be distributed, even if their value is minimal. Pascarella v. Pascarella, 165 N.J. Super. 558, 564 (App. Div. 1979).

The provision of the judgment concerning the allocation of the "marital debt" must also be reversed. Some of the debt cannot be characterized as marital in light of the judge's findings. For example, there is no discernable basis in this record for making wife responsible for any portion of the NHI settlement and the attendant attorney's fees. Wife was not awarded an equitable share of NHI, presumably because the judge did not find that it was a marital asset. Further, as recognized by the judge, wife had no control over the NHI debt as she was not involved in the arbitration, and she was not consulted regarding the settlement thereof.

Moreover, husband apparently paid the settlement amount by mortgaging the marital residence, which evidently was considered a marital asset to some unspecified extent. Thus, it appears that to the extent wife's equitable share of the equity in the marital residence was dissipated to pay the settlement, she has already contributed to this debt.

In a separate point heading on his cross-appeal, husband argues that the judge erred in refusing to allow one of the arbitrators involved in the NHI arbitration to offer his opinion that the settlement was reasonable. For several reasons, we find no merit to this claim. First, husband is hardly aggrieved by this ruling, as he was permitted to retain NHI, while wife was made responsible for twenty-five percent of the arbitration settlement and attendant attorney's fees. Second, whether the NHI settlement was reasonable is completely irrelevant to a determination of whether wife was entitled to some equitable share of NHI. Third, there is no basis for making wife responsible for twenty-five percent of an anticipated capital gains tax on the sale of the Ocean Grove property. Husband was permitted to retain the balance of the sales proceeds, even though husband conceded that it was "a marital asset to the extent of the 133,000-dollar marital pay-downs that occurred." Thus, it appears that wife has already contributed to the capital gains tax to the extent that husband was permitted to retain her equitable share of the Ocean Grove sales proceeds.

In view of the foregoing, the issue of the allocation of marital debt is reversed and remanded for a re-determination with appropriate findings on each asset.

V

Wife contends that the judge erred in not requiring husband to engage in psychotherapy as a condition of his visitation with the daughter. In rendering his final decision, the judge allegedly allowed husband to determine whether he would engage in such therapy. We conclude that the judge's visitation order should be affirmed.

The background of this dispute is as follows. Prior to the filing of the divorce complaint, and through the Spring semester of 2002, the daughter attended Catholic school at a annual tuition of $2,500. In addition, there were yearly donations of $800 and costs for uniforms and lunches. Commencing with the seventh grade, the daughter began attending the Morristown-Beard school at an annual tuition of $20,000. She told the court appointed psychologist, Sharon Ryan Montgomery, Psy.D., that it was her choice to attend Morristown-Beard. Husband told Dr. Montgomery that he was "initially opposed" to his daughter attending Morristown-Beard "because of the homogeneity of the population and the snob appeal."

Dr. Montgomery found that husband and daughter "demonstrated an appropriate, comfortable, and bonded father-daughter relationship." The psychological evaluation of husband "failed to reveal significant psychopathology, risk, and/or deviations that would support the need for restricted or supervised parenting time." Dr. Montgomery recommended the implementation of a "graduated introduction of overnight visitation" culminating in alternate weekend visitation from Friday afternoons to Monday mornings.

In her report, Dr. Montgomery further recommended that husband engage in individual psychotherapy to address his depression, and that wife do the same to address her anger and anxieties. However, at the judge's request, Dr. Montgomery clarified this recommendation, explaining that she did not find husband "to be a risk to his daughter and did not intend for his expanded parenting time to be contingent upon his entry into . . . psychotherapy."

In view of Montgomery's clarification, there was no basis for the judge to make visitation contingent upon husband's participation in psychotherapy. That decision is affirmed.

VI

Wife maintains that the judge erred in awarding her only an additional $40,000 in counsel fees. She asks that we exercise original jurisdiction to increase the award of attorney's fees. Husband argues that the judge erred in awarding wife additional attorney's fees in light of its finding that wife adopted an unreasonable stance toward settlement.

Pursuant to N.J.S.A. 2A:34-23, the trial court may "order one party to pay a retainer on behalf of the other for expert and legal services when the respective financial circumstances of the parties make the award reasonable and just." In considering such an application, the court is required to "review the financial capacity of each party to conduct the litigation and the criteria for [an] award of counsel fees that are then pertinent as set forth by court rule." N.J.S.A. 2A:34-23. Further, the court shall consider the "good or bad faith of either party." Ibid. The award of counsel and expert fees in a matrimonial matter rests in the discretion of the trial court. Williams v. Williams, 59 N.J. 229, 233 (1971); Heinl v. Heinl, 287 N.J. Super. 337, 349-50 (App. Div. 1996); Fellerman v. Bradley, 191 N.J. Super. 73, 77 (Ch. Div.), aff'd, 192 N.J. Super. 556 (App. Div. 1983), aff'd, 99 N.J. 493 (1985). Absent a clear abuse of discretion, a trial court's award of counsel fees should not be disturbed. Chestone v. Chestone, 285 N.J. Super. 453, 468 (App. Div. 1995).

Bad faith includes the following: (1) unwillingness or intransigence during litigation to negotiate equitable distribution of marital property, (2) pursuit of relief that one knows or should know he or she is not reasonably entitled to under the facts or the law, (3) intentional misrepresentation of facts or law to avoid or unfairly limit equitable distribution, and (4) vexatious or wanton acts initiated to oppress one's opponent. Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992).

Here, the judge properly evaluated the relevant factors in awarding wife an additional $40,000 in attorney's fees. His findings are supported by sufficient credible evidence in the record. The judge considered the relevant factors, giving particular consideration to the reasonableness of the positions adopted by each party throughout the course of the litigation. Thus, we affirm the award of counsel fees, rejecting the arguments made against the amount of the award by husband and wife. This disposition does not preclude an application for attorney's fees incurred during the remand.

In summary, the judge's decision regarding visitation, the award of counsel fees and the rejection of expert testimony on the NHI settlement are affirmed. The spousal support, child support, marital debt allocation and school tuition allocation decisions are reversed and remanded for more specific findings and a relevant analysis. We are not ordering that additional proofs be heard. Rather, we are requiring that the trial judge review the evidence and make more specific findings of facts and conclusions of law. However, we do not preclude the possibility of additional proofs if requested by each party or if the judge finds it necessary.

 
Affirmed in part and reversed in part. We do not retain jurisdiction.

Weimer v. Weimer, No. M- (App. Div. June 20, 2003).

(continued)

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A-5065-02T5

November 28, 2005