KAREN M. COSTANZA v. ANTHONY D. CLEMENTE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0545-04T50545-04T5

KAREN M. (CLEMENTE) COSTANZA,

 
Plaintiff-Appellant/

Cross-Respondent,

v.

ANTHONY D. CLEMENTE,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

 

Submitted October 19, 2005 - Decided March 27, 2006

Before Judges Stern, Parker and Grall.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Hunterdon County, FM-10-224-02.

Ada H. Carro, attorney for appellant/

cross-respondent.

Wasserman & Schachman, attorneys for

respondent/cross-appellant (David B. Wasserman,

on the brief).

The opinion of the court was delivered by

PARKER, J.A.D.

In this appeal, we are faced with the untoward results of the Family Part entering a judgment of divorce before equitable distribution was resolved, contrary to R. 5:7-8. We are well aware of the pressures placed on trial judges by the court administration to dispose of dissolution matters and "clear" dockets, particularly in the Family Part. No one can dispute the value of a speedy disposition in a family matter. Premature entry of a final judgment, however, may ultimately result in a significant injustice to the parties. Moreover, when trial judges are pressured to do "bench time" without being given the time necessary to adequately research and prepare decisions, the litigants are deprived of a fair and just resolution of their disputes. Incomplete or piecemeal decisions inevitably lead to further post-judgment litigation that is both costly for the litigants and time consuming for the courts at the expense of other cases that await disposition. Case clearance is a noble goal, but we are "constitutionally entrusted with the fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State." Mission Statement of the New Jersey Court System.

In this case, the judgment of divorce was amended twice: (1) by an order entered on June 28, 2004, addressing equitable distribution; and (2) by an order entered on February 3, 2005, amending the June 28, 2004 order and vacating an order of September 9, 2004 denying reconsideration of paragraphs 4 and 5 of the June 28, 2004 order. The parties cross-appeal from the orders entered on June 28, 2004, September 9, 2004 and February 3, 2005.

FACTUAL AND PROCEDURAL BACKGROUND

The facts and procedural history relevant to this appeal are summarized as follows. The parties were married in October 1992 and had two children. In 2000, before the parties separated, they jointly exercised stock options that plaintiff received through her employment with BEA Systems, Inc. (BEA). At the time, they were unaware that exercising the options would result in a $59,285 tax liability for that year. The parties discovered their liability when preparing their 2000 tax return in 2001 but did not pay the taxes at that time because they did not have the funds to do so.

In October 2001, they separated and the complaint for divorce was filed on December 17, 2001. Shortly after the separation, plaintiff's employment with BEA was terminated, and the parties were required to exercise plaintiff's remaining stock options at that time or loose them. They hired a consultant to advise them regarding the exercise of the stock options and the unpaid 2000 tax debt. In January 2002, they agreed to exercise the remaining options, sell all the stock, and use the proceeds to pay the taxes from the 2000 stock sale as well as other stock sale taxes. After the stock was sold in February 2002, plaintiff transferred "a portion of the proceeds of the sale into a joint account and paid the total joint 2000 tax debt." In turn, the payment of the year 2000 taxes created an alternative minimum tax credit of $59,285 and they used this credit to offset the total taxes that were due.

All of the stock sales were recorded in plaintiff's name, because the stock options were part of her employment compensation package. Likewise, the stock sales were listed as income on plaintiff's W-2 form. According to plaintiff, she properly applied the alternative minimum tax credit toward the tax obligation created by the stock sales. She then paid the remaining 2002 taxes with the stock sale proceeds.

On August 4, 2003, a Judgment of Divorce was entered pursuant to a Property Settlement Agreement (Agreement) placed on the record. The judgment states in its entirety:

A Judgment of Divorce having been granted this day and the Amended Judgment of Divorce to be submitted; and good cause appearing:

IT IS On this 4 Day of Aug, 2003: ORDERED that the parties are hereby divorced pursuant to N.J.S.A. 2A:34-1 et seq.

IT IS further ordered that the Property Settlement Agreement entered into between the parties is hereby incorporated in this judgment it being understood that the court took no testimony on this agreement nor is it ruling on the merits thereof.

The plaintiff may resume her maiden name of Karen Costanza.

On September 19, 2003, the trial court set aside the Agreement for reasons not included in the record. Nine months later, on June 15, 2004, the parties returned for a trial on the unresolved equitable distribution issues. During the trial, plaintiff sought to testify regarding "on-going and extraordinary expenses that she incurred and paid during the parties' separation from 2001 to 2003 for the maintenance of the home and support and care of the children." The issue was whether defendant was obligated to reimburse plaintiff for monies she used for household and children's expenses during the period between her termination from BEA and her re-employment. The trial judge stopped plaintiff's testimony, however, and indicated that he did not think it was "helpful to this case."

At the end of the trial, the judge directed the parties to submit memoranda regarding three disputed issues: (1) whether plaintiff's severance pay or vacation pay is subject to equitable distribution; (2) whether defendant is entitled to equitable distribution of the $59,286 alternative minimum tax credit; and (3) whether defendant is entitled to equitable distribution of the BEA stock sale proceeds in 2002.

After receiving the memoranda, the trial judge rendered his decision on the record and stated:

There were five separate items left for my determination. Number one, the defendant's claim for a credit of $4,906.00, representing his share of the pay-down of the principal on the mortgage for the marital home.

Number two, the plaintiff's claim for $20,000.00 credit, in light of Judge Herr's order, dated January 24, 2003, specifically, paragraph 13 of that order.

Number three, whether the defendant is entitled to one-half the severance pay and vacation pay, given to the defendant on November the 15th, 2001.

Number four, whether the defendant is entitled to one-half the value of the tax credit, in the amount of $29,642.56, generated by the exercise of BEA stock options that go back to the year 2000.

Number five, whether the defendant is entitled to one-half the value of BEA stock sold, as a result of plaintiff exercising stock options, and that one-half value is in the amount of $130,005.35.

The first two items did not involve testimony, but I heard oral argument from both attorneys.

Before I set forth my findings, as to equitable distribution, let me just state that I am, of course, mindful of the case of Rothman v. Rothman, 65 N.J. 219 (1974) [], and the statutory factors set forth in [N.J.S.A.] 2A:34-23.1.

In that regard, the specific property has already been identified as the five items that I have set forth. The value has been established, and as to allocation, I have decided that the allocation should be on a 50/50 basis.

The reason being that the settlement placed on the record, as to all of the other items, as well as the other certifications filed in this case, all contemplated a 50/50 division. Even where there has been disagreement as to whether or not someone's entitled to a credit, each party is seeking 50 percent credit from the other party.

Therefore, there's no reason for me to depart from that division, except for one area, which relates to the distribution of the value of BEA stock, for reasons that I'll set forth hereafter.

The judge then: (1) denied defendant's request for a $4,906 credit for payment of mortgage principal; (2) granted plaintiff's request for a $20,000 credit per the January 24, 2003 order (offsetting the $20,000 advance to the defendant to litigate the divorce); (3) denied defendant's request for a portion of plaintiff's severance and vacation pay; (4) granted defendant's request for one-half of the tax credit in the amount of $29,642.50; and (5) granted defendant's request for a credit from the sale of BEA stock in the amount of $115,257.35. This decision was memorialized in an order entered on June 28, 2004. Plaintiff's motion for a stay of the order pending appeal was denied.

On July 14, 2004, plaintiff moved for reconsideration, disputing paragraphs 4 and 5 in the June 28, 2004 order, "ask[ing] the court to make specific findings of fact and conclusions of law" regarding those paragraphs. On September 9, 2004, the trial court denied plaintiff's motion.

On October 1, 2004, plaintiff filed a notice of appeal challenging paragraphs 4 and 5 of the June 28, 2004 order. The notice of appeal was later amended to include the September 9, 2004 order. On November 10, 2004, plaintiff moved again in the trial court for a stay pending appeal, and the motion was denied. On December 8, 2004, defendant filed a notice of cross-appeal contesting the "[c]redits allowed plaintiff against award of monies to defendant."

In plaintiff's appeal, she argued: (1) the trial judge failed to deduct taxes paid by her from the BEA stock sale for the years 2000, 2001 and 2002; (2) the trial court abused its discretion in limiting plaintiff's testimony; and (3) the trial court failed to take judicial notice of an order entered on August 2, 2002 regarding monies allegedly stolen from a safe in the marital home.

In defendant's cross-appeal, he argued that the trial court (1) erred in reversing a prior ruling which allowed defendant a credit of $29,642.50 and instead allowed plaintiff a credit of $34,194.29; (2) made a mathematical error in allowing plaintiff a credit of $20,000 for an advance of $20,000 on equitable distribution; and (3) erroneously awarded a credit of $29,546 to plaintiff.

On December 2, 2004, the parties appeared for an appellate settlement conference before Judge Naomi Eichen (retired on recall). On December 3, 2004, Judge Eichen issued an order remanding the matter to the trial court because

[A]lthough the trial court issued an oral opinion following the trial and a written memorandum in response to plaintiff's motion for reconsideration, the opinions do not contain specific findings of fact, including an analysis of the evidence [presented by] lay and expert [witnesses], or provide reasons for the decision based on said analysis, or make conclusions of law regarding the aforesaid issues, pursuant to R. 1:7-4.

In response to the remand order, the trial judge sent Judge Eichen a lengthy supplemental letter opinion, dated January 6, 2005, in which he substantially reversed and amended his oral decision of June 28, 2004.

In the January 6, 2005 supplemental letter opinion, the judge found that defendant was not entitled to one-half of the $59,285 tax credit that plaintiff received in 2002; rather, defendant is obligated to plaintiff for one-half of the $59,285 ($29,643) tax obligation from the stock option exercise in 2000, and that amount "should be deducted from the total amount of the BEA stock sale proceeds accruing to the Defendant." The judge further found (1) that defendant "is obligated to pay a one-half share of the taxes owed on incremental increases in the stock value between 2000 and 2002," which equaled $3,649 (one-half of $7,298); and (2) that defendant owed one-half of the $1,805.58 in penalties and interest assessed because the 2000 taxes were paid late, equaling $902.79 The judge concluded that defendant's total tax obligation was $34,194.79.

On February 3, 2005, the trial judge entered an order memorializing the January 6 supplemental decision. The February 3 order amended paragraphs 4 and 5 of the June 28, 2004 order and vacated the September 9, 2004 order denying plaintiff's motion for reconsideration. The February 3 order directed defendant to pay one-half of the "original year 2000 taxes on options, taxes on the options' gain in value, and IRS penalties/interest for delayed payment of those taxes, which sums Plaintiff has paid without having been reimbursed."

As a result of the January 6, 2005 supplemental letter opinion and February 3 order, plaintiff withdrew her appeal of paragraph 4 of the June 28, 2004 order and amended her appeal of paragraph 5 to reflect the revision of that paragraph, arguing that "the distribution of the stock sale proceeds still does not reflect [her] payment of the full tax consequences" from the 2001 and 2002 stock sales, or "the extraordinary and on-going expenses" she incurred from the time of separation through the time of the trial.

On January 20, 2005, defendant amended his notice of cross- appeal to include (1) the February 3, 2005 order memorializing the January 6, 2005 supplemental letter opinion and denying him one-half of the 2002 tax credit in the amount of $29,643; (2) that portion of the June 28, 2004 order crediting $29,596 to plaintiff; and (3) that portion of the June 28 order crediting $20,000 to plaintiff, which offset the $20,000 advancement of funds to defendant to litigate this divorce.

We address this appeal to the extent we are able, given the record before us.

PLAINTIFF'S APPEAL

I

Plaintiff argues that the trial court erred in its January 6, 2005 supplemental letter opinion by not deducting all of the taxes paid by plaintiff from the stock sale proceeds. According to plaintiff, "[a]lthough the trial court acknowledged . . . that all taxes incurred on the stocks and paid by the plaintiff were a joint obligation, the trial court did not deduct all such taxes from the BEA stock sale proceeds prior to re-determining the equitable amount due the defendant from the sale proceeds."

Plaintiff points to the January 6, 2005 supplemental letter opinion in which the court found that all taxes incurred on the 2001 and 2002 stock sales "must be shared to the same extent and in the same proportion as the assets themselves must be shared." She contends that the trial court correctly found that she had paid $61,090.58 in taxes for the 2000 tax year liability (which included penalties and interest) and that there was an additional $7,298.00 in taxes for the increased stock value, totaling $68,388.58. She maintains, however, that the court failed to recognize that there was $21,520 in "taxes paid by the plaintiff that were not deducted from the stock sale proceeds."

Plaintiff offers the following illustration to demonstrate the tax payments she made relating to the stock sales:

2000 $61,355.58

2001 $11,619.00

2002 $16,935.00

Total $89,909.58

January 6, 2005 letter opinion -$68,389.58

AMOUNT NOT DISTRIBUTED $21,520.00

BETWEEN PARTIES:

Although the January 6 supplemental letter opinion held defendant responsible for $34,194.79 (one-half of the joint tax liability), plaintiff argues that this does not cover the additional $21,520.00 she paid. Plaintiff, therefore, is seeking credit for one-half of the $21,520.00 ($10,760.00) and to have defendant's equitable share of the proceeds from the stock sale reduced by this amount.

Defendant responds that there is no documentary proof to support plaintiff's claim that she paid $89,909.59 in taxes on the stock sale. He contends that some of the numbers cited by plaintiff were never brought to the attention of the trial court:

[P]laintiff refers to a number of $11,619 claiming she paid this amount on BEA stock sales in 2001. The only tax return submitted in evidence was plaintiff's federal tax return for 2002. This was entered as P-2 (T4). There was nothing before the trial court containing this $11,619 figure except submissions by counsel on various motions. There is no reference to this figure in the 2002 tax return of plaintiff.

N.J.S.A. 2A:34-23, governing equitable distribution, "authorizes the court to determine not only which assets [or liabilities] are eligible for distribution and their respective values, but also how the allocation of the assets [or liabilities] is to be made." Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443 (App. Div. 1978) (citing Rothman v. Rothman, 65 N.J. 219, 232 (1974)). "Where the issue on appeal concerns which assets [or liabilities] are available for distribution or the valuation of those assets [or liabilities], it is apparent that the standard of review is whether the trial judge's findings are supported by adequate credible evidence in the record." Borodinsky, supra, 162 N.J. Super. at 443-44.

In this case, the January 6 supplemental letter opinion found that plaintiff's claims of additional taxes in the amount of $11,619 for the year 2001 and $16,935 for the year 2002 were without merit. We are satisfied that this finding is supported by adequate credible evidence in the record. R. 2:11-3(e)(1)(A).

II

Plaintiff argues that the trial court erred and abused its discretion by refusing to allow her to testify with respect to the total amount of extraordinary expenses she incurred from the time the parties separated to the time of the trial and thereby failed to consider the full cost of these expenses to be deducted from the stock sale proceeds before equitably distributing the assets between the parties. She claims that the court must consider an additional $28,784.00 of extraordinary expenses.

The extraordinary expenses included tutoring, therapy, and summer camp for the parties' children, which were necessary for their health, education and well-being after the separation. Plaintiff maintains that these are joint expenses and must be shared by the parties. Although she was not permitted to testify to the full amount of extraordinary expenses at trial, she listed them in her memorandum to the court after trial. Plaintiff provides the following examples of extraordinary expenses:

Tutoring $624.00 per month

Jan. 2002 - October 2002 $ 6,240.00

Nov. 2002 - trial date $ 13,080.00

Therapy: $55.00 + $15.00 per session $ 9,660.00

Dec. 2001 - July 2003 (138 sessions)

Summer Camp: $1800.00 per summer x 3 summers $ 5,400.00

Total Expenses For Children $ 34,380.00

The trial court allowed only the following:

Son's Tutoring $2,596.00

Son's Therapy $1,200.00

Son's Summer Camp $1,800.00

Total $5,596.00

Defendant responds that he should not be liable for the extraordinary expenses, arguing:

Unfortunately plaintiff had treated the children as though she was their sole parent. As indicated in paragraph 10 of Judge Herr's Order of October 25, 2002, defendant had certified to the court that plaintiff had not consulted with him regarding the children's activities. He was not consulted regarding the tutoring or therapy and did not believe therapy was necessary or effective.

The actions of the plaintiff regarding the children constituted not only a violation of R.5:8-5 but a violation of paragraph 2(d) of Final Judgment Fixing Custody and Parenting Time which was entered as a court Order.

Defendant contends that the trial court erred in its January 6 supplemental letter opinion by allowing plaintiff's award of $29,645.00 for child care expenses to stand but reversing the $29,642.50 credit the court had previously awarded to defendant. He argues that "[t]he obvious result was to improperly enrich the plaintiff at defendant's expense." Plaintiff replies that she was not unjustly enriched, but was "denied full reimbursement for all of the extraordinary expenses she incurred for the children during that period of time."

"N.J.R.E. 403 specifically allows a judge, in his or her discretion, to exclude otherwise admissible evidence under specified circumstances. These decisions are reviewed under the abuse of discretion standard." Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citing State v. Erazo, 126 N.J. 112, 131 (1991), certif. denied, 163 N.J. 79 (2000)). "'Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings.'" Benevenga, supra, 325 N.J. Super. at 32 (quoting State v. Morton, 155 N.J. 383, 453 (1998)).

The issue here is whether the court abused its discretion by limiting plaintiff's testimony regarding her extraordinary expenses. In reading the trial transcript it is clear that plaintiff was allowed to testify respecting her extraordinary expenses, but was limited to those expenses that were incurred during the time she was out of work and not supported by severance pay. Plaintiff testified that she and defendant had agreed that she would use the stock sale proceeds to maintain the home and pay the children's expenses during this period of time.

The judge determined that plaintiff lost her job in October 2001 and received severance pay for the months of November, December and January. He concluded, and plaintiff conceded, that the parties' agreement covered the months after the severance pay expired: February, March, April, and May of 2002. The court then limited plaintiff's testimony regarding the extraordinary expenses to this period.

In his July 28, 2004 decision on the record, the judge stated:

I find that the defendant did not agree that the proceeds from this stock could be used by the plaintiff exclusively. Both parties did agree, however, that the stock would be sold.

From November, 2001, until June, 2002, the plaintiff was out of work. Other than severance pay, she did receive unemployment. The plaintiff testified that the defendant paid her, weekly, $500.00, which was $250.00 less than when they were together.

Plaintiff also had certain other extraordinary expenses during this time, such as her son's tutoring, her son's therapy, and summer camp.

The plaintiff had a shortfall, financially, and used the proceeds from the stock for certain necessary expenses for herself and the children, until she went back to work in June, 2002.

I find these expenses as follows. There were four months of no income from her employment. That amounted to about $24,000.00. Her son's tutoring, during the period of unemployment, came to $2,596.00, at six twenty-four a month, times that four months. Her son's therapy, $300.00 a month, times the four month period, $1,200.00. Summer camp was $1,800.

That totals $29,596.00. That sum will be deducted from $260,596.00, leaving $230,514.70. I find that plaintiff is entitled to one-half of that sum or $115,257.35.

We have carefully reviewed the record and we are satisfied that the evidence adequately supports the deduction of $29,596 prior to equitable distribution, effectively awarding that amount to plaintiff for the extraordinary expenses incurred by plaintiff for the children during the months of February, March, April and May 2002.

III

Plaintiff next argues that the "trial court's failure to take judicial notice of the theft of the monies from the safe in the marital home was an abuse of discretion and error and must be reversed." She claims that the amount of money stolen should have been deducted before distribution of the stock sale proceeds.

Plaintiff explains that the theft issue was heard by Judge Herr on August 2, 2002. Plaintiff provided proof to Judge Herr of compliance with defendant's request to file an insurance claim and police report. According to plaintiff, the insurance company paid only $200 of the claim. Judge Herr's August 2, 2002 order indicated that defendant's demand for a police report and insurance claim was moot.

Plaintiff argues that she intended to testify at trial regarding the $13,000 stolen from the safe, but "she was unable to ask that the court take judicial notice of the theft or that the court deduct the stolen money from the stock sale proceeds prior to their distribution between the parties."

Following the trial, plaintiff's memorandum requested the court to take judicial notice of the theft and Judge Herr's order and to deduct the stolen $13,000 from the stock sale proceeds before distribution to the parties. The court did not address this issue in any of its decisions, and plaintiff claims that it abused its discretion by failing to do so.

Judicial notice is not the issue here. Judicial notice is reserved for matters outside the record, not for issues and orders that have been integral to the case and are incorporated in the record. N.J.R.E. 201. The theft had been addressed previously in the litigation and in Judge Herr's order of August 2, 2002. It has been an integral part of the record since at least August 2002, and, consequently, the question is whether the trial judge erred in failing to address the issue.

Given that the issue was never addressed at trial, there is no evidence upon which we can decide it. Accordingly, we remand for the trial court to develop evidence on this issue and to make findings of fact and conclusions of law as to whether the $13,000 should have been factored into equitable distribution.

DEFENDANT'S CROSS-APPEAL

I

In his cross-appeal, defendant argues that the trial court erred in reversing its award of $29,642.50 to defendant and giving a credit of $34,194.70 to plaintiff because it deprived him use of this amount on his tax returns. Defendant contends that the court incorrectly stated in its January 6 supplemental letter opinion that plaintiff's $59,286 credit on her tax return did not accrue to her benefit. He claims that plaintiff "utilized the credit to reduce her tax on her earnings as well as sale of BEA securities" and that he was not able to take advantage of such a credit.

Defendant further argues that the court erred in finding that plaintiff was entitled to an additional credit of $3,649, which is one-half of the taxes for the increased value of the BEA stock from 2000 to 2002. He maintains that there is no proof that the stock price increased; rather, he maintains that the "stock had diminished substantially during the period in question." Defendant contends that the court misinterpreted the testimony of his expert, Jerome Newler, who opined that since the stock was acquired during the marriage, the tax liability should be taken from joint marital funds. Defendant insists that Newler was "only referring to a hypothetical not [an] actual withdrawal."

Plaintiff responds that she did not use the alternative minimum tax credit to offset the tax obligation on her own income. She argues "that the plaintiff had paid the 2000 taxes from 2002 stock sale proceeds and that the Alternative Minimum Tax Credit was properly utilized by the plaintiff to reduce the parties' joint tax obligation incurred as a result of the sale of the marital stocks." She urges that the judge correctly found that defendant was not entitled to the $29,642.50 he had been awarded previously.

In his January 6, 2005 supplemental letter opinion, the trial judge reversed himself, relying on the expert's testimony and plaintiff's 2002 check to the IRS:

Upon re-reviewing the entire matter I find that I am compelled to change my conclusion with regard to taxes. I find that the 2000 "options exercise" tax was paid from the funds of the 2002 stock sale and not from the parties' joint wages in 2000, and I find that the 2002 tax credit that Defense expert referred to as a refund to Plaintiff was instead merely a method intended to zero-out double taxation in tax year 2002 of that portion of stock value on which tax had already been assessed in 2000; thus there was no refund to be shared.

Late [in] the day of the June 15 trial, after 103 pages of testimony by both parties' accounting experts, counsel for the Defendant proffered a February 2002 check to the IRS in the amount of $61,090.58. This amount represented the 2000 stock options exercise tax plus interest and penalties accruing over the course of time. It was sent to the I.R.S. approximately 13 days after the stock sale proceeds were realized on or about February 12, 2002.

The payment of 2000 taxes by that check represents the crux of the error as to the timing of the 2000 tax payment, made in repeated testimony by Defendant's expert and also repeated by both attorneys during direct and cross examination, and upon which I relied. I now find all testimony prior to page 104 as to that issue is irreconcilable with this irrefutable evidence that the parties did not jointly pay their 2000 stock options tax from "their" wages while married, but that the 2000 options tax when finally paid in late February 2002 was paid from the proceeds of sale thirteen days earlier.

Likewise, the credit allowed by the I.R.S. on the value of the stock sold in 2002 did not accrue to Plaintiff's benefit but instead served to benefit both parities by avoiding double-taxation on that portion of the stock sold in 2002 that had already been taxed on the 2000 tax return.

I find that the amount allocated to Defendant out of the gross stock sale proceeds should instead have been allocated to him on net proceeds, after deducting the various taxes, penalties and interest shown at trial to have been paid. This was a mistake on my part.

The court further stated:

Given that the taxes for the exercise were not paid in 2000 but rather were paid 13 days after the receipt of the stock sale proceeds, I find Defendant's purported inability to use the $59,285 credit illusory. I am cognizant of the fact that Defendant did not get the use of the stock sale funds when those funds came in because they were placed in a separate account by Plaintiff and held there pending equitable distribution. However Defendant was also never denied use of the tax credits lowering monies owed the government, simply because the zeroing out of duplicate taxes in the 2002 return did not constitute a "refund" of (2000) taxes but rather a correction to avoid duplicate taxation, and because the tax payment itself was never drawn from joint wages but from stock sale[] proceeds. Therefore Defendant was never deprived of any funds - in the year 2000 or any time afterward.

"Where the issue on appeal concerns which assets are available for distribution or the valuation of those assets . . . the standard of review is whether the trial judge's findings are supported by adequate credible evidence in the record." Borodinsky, supra, 162 N.J. Super. at 443-44.

Here, it appears that there was adequate credible evidence in the record to support the finding that the award to defendant of $29,642.50 was incorrect and that plaintiff was entitled to receive a credit of $34,194.70. R. 2:11-3(e)(1)(A).

II

Defendant next argues that the trial court made a mathematical error by awarding plaintiff the full amount of the $20,000 advance paid to defendant rather than equitably distributing this amount. This error was not raised before the trial court.

On January 24, 2004, the trial court granted defendant's application for "an advance on equitable distribution" in the amount of $20,000. Defendant claims that this advance was paid from marital funds. In its June 28, 2004 order, the court credited plaintiff for the full $20,000 advancement. Defendant argues that the effect of the $20,000 credit to plaintiff deprived him of $10,000 to which he was entitled. He explained that this $20,000 derived from marital funds and was subject to equitable distribution, thus $10,000 belonged to him and $10,000 belonged to plaintiff.

Plaintiff responds that the trial court properly found "the $20,000.00 distribution to the defendant as Ordered by Judge Herr 'constituted a $20,000.00 advance out of marital funds, to the defendant, which at that time were in control of the plaintiff. Since the defendant received $20,000.00, plaintiff is entitled to an equal credit of $20,000.00 from the defendant.'" That is not what she argued at trial, however. At trial, plaintiff claimed $10,000 of the $20,000 advanced to defendant in April 2002.

In our view, this is not a "mathematical error" as defendant claims. Rather, the issue is whether the trial court committed plain error in awarding plaintiff the entire $20,000 sum rather than distributing it equally between the parties. In his oral decision on June 28, 2004, the trial judge framed the issue as "whether the plaintiff is entitled to a $20,000 credit" and held that "[s]ince the defendant received $20,000.00, plaintiff is entitled to an equal credit of $20,000.00, from defendant," but the court did not provide further explanation.

In light of plaintiff's concession at trial that she was only entitled to a $10,000 reimbursement on the $20,000 advanced to defendant, the trial court committed plain error in awarding her the full $20,000. We, therefore, reverse this portion of the amended judgment and remand this matter to the trial court to amend the judgment to reflect a $10,000 reimbursement to plaintiff.

CONCLUSION

To summarize our decision, we affirm on all issues, except (1) we reverse the award of $20,000 to plaintiff and order the trial court to amend this figure to $10,000; and (2) remand the issue of whether the $13,000 theft should be factored into equitable distribution and how it should be distributed, if at all.

We add a final comment with respect to the record before us. The parties were subjected to more extensive litigation and its incumbent costs than necessary because (1) the judgment of divorce was entered on August 4, 2003, before the parties resolved all of the issues, contrary to R. 5:7-8; (2) the judgment of divorce was entered without requiring the parties append a written copy of the Property Settlement Agreement, contrary to R. 4:42-1(a)(4) and Entress v. Entress, 376 N.J. Super. 125, 134 (App. Div. 2005); (3) the trial on equitable distribution issues was delayed for almost a full year after entry of the judgment of divorce; (4) the trial judge failed to provide an adequate statement of findings and conclusions after trial contrary to R. 1:7-4(a); and (5) the trial judge failed to address all of the issues after the matter was temporarily remanded for supplemental findings of fact and conclusions of law.

We are well aware of the extraordinary calendar burdens on Family Part judges and the pressures they face to "clear" numbers of cases. The desire to clear cases, however, must not override the need to have a full, fair and final resolution of all issues.

Trial judges are prohibited from entering judgments before all issues have been resolved, except "with the approval of the Family Presiding Judge, which approval shall be granted only in extraordinary circumstances and for good cause shown." R. 5:7-8. In our view, there are very few circumstances in which a judgment may be entered prior to resolution of all issues and those circumstances should be fully explained at the time the judgment is entered.

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

We have not been provided with either a copy of the Agreement or a transcript of the August 4, 2003 proceeding.

(continued)

(continued)

28

A-0545-04T5

APPROVED FOR PUBLICATION

March 27, 2006

APPELLATE DIVISION

March 27, 2006