E.I. v. L.I.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0589-04T10589-04T1

E.I.,

Plaintiff-Appellant,

v.

L.I.,

Defendant-Respondent.

_______________________________________________________________

 

Argued March 27, 2006 - Decided June 29, 2006

Before Judges Cuff, Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1261-03.

Louis G. Guzzo argued the cause for appellant (Mattleman, Weinroth and Miller, attorneys; Susan E. Goldsman, on the brief).

Stephen S. Berowitz argued the cause for respondent (Shaievitz & Berowitz, attorneys; Mr. Berowitz, on the brief).

PER CURIAM

Plaintiff, E.I., appeals the award of custody of the parties' two children to defendant, temporary suspension of her parenting time, the award to her of limited duration alimony and the denial of rehabilitative alimony, the equitable distribution of property, and the award of counsel fees contained in the Family Part's August 19, 2004, dual judgment of divorce, terminating the marriage between plaintiff and defendant, L.I. The August 19, 2004 order memorializes the judge's May 11, 2004 oral opinion and August 19, 2004 written opinion. We affirm in part, reverse in part, and remand in part for further proceedings consistent with this opinion.

Plaintiff, age thirty-six, and defendant, age fifty-six, were married on January 1, 1992 in Nigeria. Defendant had been residing in the United States and attending school at the time the parties married, and plaintiff did not join defendant in the United States until September 1995. Defendant visited his wife no more than once or twice a year in Nigeria between 1992 and 1995. Two children were born of the marriage, a son, born August 8, 1996, and a daughter, born April 13, 1998. Plaintiff has been employed since 1997 as a teacher's aide in the Newark Public Schools, and works during the ten-month school year earning approximately $25,000 annually. Defendant has worked for the Newark Public Schools since May 1991 and earns approximately $87,000 annually, over a twelve-month period.

Prior to the parties' separation in 2002, the family lived together in a one-bedroom leased apartment in East Orange. Defendant testified that since 1997 he slept in a bed in the living room while plaintiff shared a king-sized bed in the bedroom with the two children. Defendant claims that he was never allowed to care or spend time alone with the children because plaintiff took total control. The parties did not eat meals together, they utilized separate bank accounts, and they filed separate tax returns.

There is a history of allegations of domestic violence between the parties, primarily verbal in nature. However, no final restraining orders (FROs) were ever entered against either party. All temporary restraining orders (TROs) obtained by plaintiff were dismissed either by plaintiff herself or the court after a hearing. None of the domestic violence complaints filed by plaintiff alleged sexual abuse of the children by defendant.

The Division of Youth and Family Services (DYFS) became involved with the family in 2002, after plaintiff alleged that their daughter claimed defendant had touched her private parts inappropriately. The daughter's first allegation of sexual abuse was made on or about August 5, 2002. On August 6, 2002, plaintiff called the police. When DYFS employee Charlene Robinson came to the home as a result of the referral to evaluate the claim of sexual abuse, plaintiff told Robinson that she wanted defendant out of the house, and that she had defendant arrested on a charge of threatening to kill her with a gun. As a result, plaintiff also filed a domestic violence complaint alleging "threat to kill" as the basis.

Plaintiff filed a complaint for divorce in October 2002 on the ground of extreme cruelty, only two months after the August 5, 2002 allegation of sexual abuse. However, there was no mention of the alleged sexual contact between defendant and their daughter in the divorce complaint.

The second allegation of sexual abuse was made October 9, 2003, and the third allegation was made October 23, 2003. Both of these sexual abuse allegations were made after defendant had overnight parenting time with the children. Each of the allegations, upon referrals to DYFS, were found to be unsubstantiated. However, Jessica Platt, PH.D., an evaluating psychologist for DYFS, opined on November 5, 2003, that the sexual abuse alleged in August 2002 and October 2003 may be substantiated because the daughter was consistent in her allegations that her father had touched her "pee-pee."

After testimony from several DYFS caseworkers, psychologists and a polygraph operator at the pre-divorce five-day plenary hearing on the issue of custody, the court concluded that the allegations of sexual abuse had been fabricated by plaintiff. The court also determined that plaintiff had coached their daughter into claiming that she had been sexually abused by defendant, and that the single allegation of sexual abuse by the son was also coached by plaintiff.

Polygraph tests, which were conducted with the consent of the parties, indicated that defendant was telling the truth when he stated that he had not sexually abused his children and that plaintiff was being deceptive when she made her reports. The court determined that plaintiff was motivated to have the parties' daughter report that her father had touched her inappropriately because of the break-up of the marriage, to force defendant out of the apartment, and to thwart all parenting time between defendant and the children.

The court awarded custody of both children to defendant pursuant to Rule 5:3-7(a)(6), finding the transfer of custody to be in the children's best interests. The court also temporarily suspended plaintiff's visitation with the children pending a psychological evaluation of plaintiff and three to six months of psychotherapy. The court determined that the children needed to establish a relationship with their alienated father without any interference by the mother.

Plaintiff was awarded limited duration alimony in the amount of $175 per week for three years. The court concluded that $9,100 in yearly alimony would enable plaintiff to meet $1,500 in monthly expenses based on the parties' modest lifestyle and plaintiff's ability to supplement her income during the summer months. Counsel fees in the amount of $7,500 were also imposed on plaintiff.

"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). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Plaintiff presents the following arguments for our consideration:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SUSPENDED ALL PARENTAL RIGHTS OF APPELLANT ABSENT A FACTUAL FINDING THAT APPELLANT REPRESENTED AN ACTUAL RISK OF HARM TO THE CHILDREN IN DEROGATION OF N.J.S.A. 9:2-4.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ABDICATED ITS CREDIBILITY DETERMINATION TO A POLYGRAPH EXPERT WHO CONDUCTED A POLYGRAPH EXAM ON THE ISSUE OF THE SEXUAL ABUSE OF THE PARTIES' MINOR CHILD.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO CONSIDER THE STATUTORY FACTORS SET FORTH IN N.J.S.A. 2A:34-23(b) IN ITS AWARD OF TEMPORARY ALIMONY TO APPELLANT AND ITS FAILURE TO CONSIDER THE STATUTORY FACTORS SET FORTH IN N.J.S.A. 2A:34-23 REGARDING EQUITABLE DISTRIBUTION OF MARITAL ASSETS.

POINT IV

THE COURT BELOW COMMITTED REVERSIBLE ERROR IN AWARDING RESPONDENT COUNSEL FEES WITHOUT APPLYING THE FACTORS OUTLINED IN WILLIAMS v. WILLIAMS, 59 N.J. 229 (1971).

I

Plaintiff contends that the court made no factual finding that she posed a risk of actual harm to her children before suspending her custody and parenting time pursuant to N.J.S.A. 9:2-4, but rather the court concluded that she may have caused serious emotional harm to her daughter in her attempt to use her daughter against defendant in the divorce. Plaintiff asserts that the record reflects that the children were well taken care-of in her custody. She claims the expert testimony demonstrated that the children enjoyed a normal relationship with their father.

Plaintiff noted testimony from the daughter's kindergarten teacher, a DYFS Service Specialist, and an expert report submitted by Patricia Morgan Glenn, M.D., in support of her arguments. The daughter's kindergarten teacher testified that during the school year the child did not appear to be suffering any behavioral or emotional problems, and also that she had been performing well academically. The DYFS specialist testified that based on his personal observations during supervised visitations, the children did not appear to be alienated from defendant and played with defendant in a comfortable and interactive way. The expert report provided by Dr. Glenn suggested that the daughter was found to be in good health and well developed. Plaintiff contends that at no time prior to May 11, 2004, when custody was awarded to defendant, did any of the experts or professionals involved with the family recommend that she should be restrained from having contact with the children or make any findings of actual harm to the children as a result of her actions.

Our Supreme Court in Fantony v. Fantony, 21 N.J. 525 (1956), established that "in a cause involving the custody of a minor child . . . the paramount consideration is the safety, happiness, physical, mental and moral welfare of the child." Id. at 536. Fantony made clear that "a wife's misconduct does not preclude an award of custody to her if the child's best interest is thereby served." Id. at 538. However, Fantony also indicates that an intervention in custody would be proper where there was a "charge of . . . moral turpitude of the mother." Ibid. The moral turpitude of plaintiff was a central issue before the court in this case. The court found that plaintiff had used her children to lay false claims of sexual abuse against their father in an attempt to deny him custody and visitation in the future.

N.J.S.A. 9:2-4c establishes that the court has the power to order "[a]ny . . . custody arrangement as the court may determine to be in the best interests of the child." In Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985), we determined that "a parent's custody and visitation rights may be restricted, or even terminated, where the relation of one parent (or even both) with the child cause emotional or physical harm to the child, or where the parent is shown to be unfit, or perhaps where special temporary circumstances require[.]" Ibid. (citations omitted) (emphasis added). "[B]y seeking a divorce and invoking the jurisdiction of the Family Part, each party assented to the possibility that there will be some curtailment of what would otherwise be the ordinary rights concomitant to parenthood." Sacharow v. Sacharow, 177 N.J. 62, 80 (2003). "[T]he sole benchmark is the best interests of the child." Ibid.

Plaintiff's allegations of sexual abuse by defendant in this case warranted the court's highest focus. After the evidence of false allegations of sexual abuse was brought forth by the witnesses, the court made factual and credibility findings in favor of defendant. The court found that defendant had not sexually abused either of the children, but rather that plaintiff used the children to lie about the abuse in an effort to thwart defendant's rights to visitation or custody pursuant to the judgment of divorce. In coaching the children to make such serious allegations against their father in order to further her own interests, plaintiff threatened the relationship between the children and defendant.

We are satisfied that the pre-divorce custody ruling in favor of defendant on May 11, 2004, after an extensive plenary hearing, was supported by substantial credible evidence and should not be disturbed. The evidence supports the court's finding that plaintiff coached and fabricated false allegations of sexual abuse against the children's father and interfered with defendant's parenting time. Plaintiff's acts constituted "special temporary circumstances" for the suspension of plaintiff's visitation rights. Wilke, supra, 196 N.J. Super. at 496.

The suspension of plaintiff's visitation rights was determined to be in the best interests of the children in order to end the alienation of the children from their father. The court made its finding after psychologist, Dr. Paul Dasher, testified on August 4, 2004 that in the best interests of the parties' children, the plaintiff must undergo psychotherapy with a psychologist of her own choosing for three to six months prior to any reunification with the children and after the court consulted with their daughter's therapist. The court stated that, "Upon compliance with the psychotherapy treatment, the plaintiff may apply to the court for review and determination of parenting time with the minor children." We are satisfied that the court's order did not permanently deprive plaintiff of the right to see her children, but rather was of a temporary nature. The key to restoration of plaintiff's parenting time was within plaintiff's control.

We add the following: Plaintiff has not seen her children since the entry of the court's May 11, 2004 custody order. In the nearly two years that have elapsed since the custody order was entered, the children have been able to bond with their father as was the court's goal. As our decision in Wilke made clear,

It is well settled that the law favors visitation and protects against the thwarting of effective visitation rights. In re J.S. & C., 129 N.J. Super. 486, 487, 489 (Ch. Div. 1974), aff'd o.b., 142 N.J. Super. 499 (App. Div. 1976); Daly v. Daly, 39 N.J. Super. 117 (Cty. Ct. 1956), aff'd 21 N.J. 599 (1956). In Daly, the principle (which has equal application today) was stated that the courts should endeavor that children of separated parents should be imbued with love and respect for both parents, and where children are in custody of one parent, the court should endeavor to effect this facet of the children's welfare by conferring reasonable rights of visitation on the other parent. Id. at 123, citing Turney v. Nooney, 5 N.J. Super. 392, 397 (App. Div. 1949); Bierck v. Bierck, 123 A. 537 (Ch. Div. 1923) (not officially reported); In re Jackson, 13 N.J. Super. 144, 145, 147 (App. Div. 1951).

[Wilke, supra, 196 N.J. Super. at 496.]

Although plaintiff never complied with the trial court directive to undergo therapy as a condition precedent to restoring parenting time, we are of the view that as a result of the lapse of time, the children's bonding with their father, and the maturing of the children, that the issue of the establishment of parenting time for plaintiff should be considered anew by the trial court. Accordingly, we remand the issue of parenting time to the trial court to consider a fair and equitable parenting time order for plaintiff within forty-five days.

II

Plaintiff contends that the court improperly abdicated its decision-making responsibility and adjudicated the matter based on the results of the polygraph test administered by a court-selected polygraph expert. She further contends that once the court improperly considered the results of the polygraph examination, the expert witnesses were influenced to view plaintiff as unilaterally manipulating the children to allege sexual abuse by their father. In support of her contentions, plaintiff cites Capell v. Capell, 358 N.J. Super. 107 (App. Div.), certif. denied, 177 N.J. 220 (2003). There the judge suggested that in order to determine the veracity of both parties in a domestic violence hearing that he would rely solely on the results of a polygraph examination of both parties unless the results were inconclusive. Id. at 108. In Capell, we stated, "It is apparent from this record that the trial judge was prepared to abdicate his decision-making responsibility and adjudicate the matter solely based on the results of a test administered by a court-selected polygraph expert." Ibid. (emphasis added).

Here the court did not make credibility or factual determinations based solely on the results of the polygraph examinations. The results were used instead as one of many pieces of evidence presented during the five-day custody hearing establishing the basis for the court's findings. Although the results of the polygraph examinations were admitted into evidence and considered by the court, they were not given controlling weight.

We are also satisfied that the experts who testified were not unduly influenced by the results of the polygraph. Dr. Platt admitted during testimony that she could not evaluate the results of the exam because she was unfamiliar with the polygraph. Dr. Hagovsky, the court appointed psychologist, testified that the polygraph exam represented "one more piece of information" relating to the abuse allegations. Dr. Hagovsky's opinion that the allegations of sexual abuse by defendant were "improbable" was in large part based on his review of DYFS records.

The factors considered by the court in arriving at its findings included the following: Plaintiff's first allegation of sexual abuse was made August 5, 2002. Plaintiff filed a domestic violence complaint on August 6, 2002, and completed a victim fact sheet on August 14, 2002. Neither made reference to the alleged sexual abuse. On August 5, 2002, plaintiff never took her daughter to a doctor or hospital or called the police to report the abuse. Appointments for their daughter's physical and psychological evaluations were not kept by plaintiff, and no rescheduling was attempted by plaintiff. Plaintiff represented to Dr. Platt that she sought a divorce from defendant due to defendant's sexual abuse of their daughter, but no such abuse was alleged in her divorce complaint. Defendant filed a pendente lite motion in July 2003 requesting parenting time, and plaintiff filed a cross-motion only seeking to restrain defendant from taking the children out of the state. Defendant was forced to seek an order requesting parenting time because plaintiff refused to make arrangements, and then she violated the court's order. Following the parties' separation in August 2002, defendant did not have any contact with the children until October 9, 2003. Following that overnight visit, plaintiff again alleged that their daughter complained of her father touching her inappropriately. This allegation was not corroborated when DYFS worker, Kia Inman, spoke to the child. Ms. Inman indicated that when the third allegation of sexual abuse was reported by plaintiff, the child denied that her father touched her inappropriately. At supervised visits between defendant and the children in March 2004, the children were reported to be happy seeing their father and comfortable with him. The caseworker concluded that it was clear the children loved their father a great deal.

We are satisfied that both parties freely agreed to the polygraph examination, and that the results were properly utilized by the court. The court, in its comprehensive decision on May 11, 2004, stated the many factors that led to its conclusion that defendant had not sexually abused the children and instead that plaintiff had coached the children to report that they had been abused. The polygraph results were merely one factor considered by the court in arriving at its findings.

III

Plaintiff contends that rather than fully analyzing the enumerated factors in N.J.S.A. 2A:34-23b when determining the proper amount of alimony to be awarded, the court simply concluded that each party maintained separate lives and that during the marriage the parties funded their own lifestyles from their own incomes. Plaintiff also alleges that the court made no findings of fact in regard to the marital budget and performed only a cursory analysis of defendant's present budget. In addition, plaintiff claims the court set an amount of alimony that was punitive in nature due to her alleged wrongdoing. We disagree.

The purpose of an award of alimony is to provide the dependent spouse with sufficient support to maintain the standard of living the parties enjoyed during the marriage. Crews v. Crews, 164 N.J. 11 (2000). In Crews, our Supreme Court stated:

[T]he goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage. The importance of establishing the standard of living experienced during the marriage cannot be overstated. It serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award when "changed circumstances" are asserted.

[Id. at 16.]

"In all divorce proceedings, trial courts must 'consider and make specific findings' under N.J.S.A. 2A:34-23(b) when awarding alimony pursuant to a divorce decree." Crews, supra, 164 N.J. at 25 (quoting Carter v. Carter, 318 N.J. Super. 34, 42-43 (App. Div. 1999)). "[O]nce a finding is made concerning the standard of living enjoyed by the parties during the marriage, the court should review the adequacy and reasonableness of the support award against this finding." Id. at 26. N.J.S.A. 2A:34-23b "sets forth the same factors for a court to 'award permanent or rehabilitative alimony or both to either party.'" Wass v. Wass, 311 N.J. Super. 624, 631 (Ch. Div. 1998) (quoting N.J.S.A. 2A:34-23b).

The court utilizing the statutory enumerated factors made the following analysis before making its alimony award: With respect to the length of the marriage, the court considered it to be a relatively short-term marriage. Although the parties were married in 1992, they did not live together until September 1995 when plaintiff arrived in the United States. The parties separated in August 2002, when defendant was removed from the house after plaintiff accused him of making a terroristic threat.

The court determined, from the testimony of the parties and a review of their case information statements, that the parties had a very modest lifestyle. They always shared a one bedroom apartment, drove used cars and did not take vacations, except for a trip or two to Nigeria. Credit cards were relied upon by defendant to meet family expenses. At the time of trial, plaintiff had annual earnings of $25,152 as a teacher's aide employed by the Newark Public School District. Plaintiff was paid over the ten month school year and, therefore, had the opportunity to supplement her income during the summer. She was provided medical coverage at no cost and contributed to a 403(b) plan. At the time of trial, defendant's annual salary from his employment with the Newark Public School District was $87,242. Defendant was paid biweekly over the entire year. To a great extent the parties led separate lives from a financial standpoint. Plaintiff testified that once she began to work in February 1997, she paid for the children's clothing, daycare expenses and for a babysitter. The parties filed separate income tax returns and maintained separate checking accounts.

Plaintiff's case information statement, filed on June 29, 2004, showed total monthly personal expenses of $1,351, including a child support obligation of $596 per month, shelter expenses of $865 per month, and transportation expenses of $1,894 per month, for total monthly expenses of $4,110. The trial court determined that plaintiff's monthly budget was grossly inflated. This budget included transportation expenses of $1,894 per month for two automobiles when previous case information statements had listed those expenses at $450 in 2004. The court in its analysis of plaintiff's actual monthly needs determined them to total $1,500, not including her child support obligation. The court found that plaintiff had a current net monthly income of $1,702 to meet her household expenses.

We are satisfied that in arriving at its alimony award, the court adequately determined the amount, duration and type (limited duration) of alimony that defendant should pay plaintiff and conducted a thorough evaluation of the N.J.S.A. 2A:34-23b enumerated factors. The court concluded from the testimony of both parties, a review of their case information statements and taking into account the couples' modest lifestyle that an alimony award of $175 per week for three years was fair and equitable. The amount awarded would permit plaintiff to live the same modest lifestyle the parties had while married and living together.

Plaintiff sought rehabilitative alimony for a period of six to seven years in order to allow her to earn a bachelor's degree and become a teacher. However, the court found she failed to provide credible evidence of a rehabilitative "plan" required by N.J.S.A. 2A:34-23d. According to N.J.S.A. 2A:34-23d, the payment of a rehabilitative plan must show "the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur."

N.J.S.A. 2A:34-23d permits a short-term alimony award to enable the former spouse to complete the preparation necessary for economic self-sufficiency, and it ceases when the dependent spouse is in a position of self-support. Cox v. Cox, 335 N.J. Super 465, 474-75 (App. Div. 2000). "The focus of rehabilitative alimony is upon the ability of a dependant spouse to engage in gainful employment, combined with the length of the marriage, the age of the parties, and the spouse's ability to regain a place in the workplace[.]" Id. at 475 (citations omitted). In Kulakowski v. Kulakowski, 191 N.J. Super 609, 611 (Ch. Div. 1982), the Chancery Division stated, "The purpose of rehabilitative alimony is to exert fair and compassionate pressure upon a wife, absent unusual circumstances, to develop marketable skills and obtain employment which will enable her to contribute, in whole or in part, to her support." "Rehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur." N.J.S.A. 2A:34-23d.

Before any court can consider rehabilitative alimony, "there must be evidence presented which could form the basis of such an award, and such factors must be proven by the greater weight of the evidence." Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992). The burden of producing the specifics of the plan is on the plaintiff. Ibid.

The court found that plaintiff had not met her burden by failing to provide credible evidence as to the cost of the proposed education or the time within which she would get her degree. Plaintiff offered no evidence that her academic record in Nigeria, together with SAT scores, would qualify her for admission. Plaintiff had not recently applied to any college nor had she requested an application. Plaintiff did not seek to introduce evidence of the cost of her proposed education. The court properly exercised its discretion in determining not to award plaintiff rehabilitative alimony.

As respects equitable distribution, the court correctly began its equitable distribution analysis acknowledging the three-sep process set forth by our Supreme Court in Rothman v. Rothman, 65 N.J. 219 (1974). The court first must determine which assets are subject to equitable distribution, and then the court must determine the value of those assets. Finally, the court must distribute the assets equitably between the parties. The findings of fact made by the trial court are not to be disturbed on appeal provided they are reasonably related to the evidence. Perkins v. Perkins, 159 N.J. Super. 243 (App. Div. 1978).

The court listed eleven assets belonging to the parties, subject to equitable distribution, including the $1,000 security deposit for the parties' apartment, both parties' Public Employee Retirement System (PERS) accounts from the Newark Public School system, defendant's annuity and AIG accounts, and plaintiff's AIG and credit union accounts. The only liabilities subject to equitable distribution arose from the costs accrued during the divorce litigation, as the court determined that no other credible evidence as to marital liabilities was produced by the parties.

The court's fact-finding recitation continued:

The parties were married on January 1, 1992 in Nigeria. The defendant returned to the United States while the plaintiff continued to live in Nigeria and attend University. The plaintiff testified that the defendant did not support her while she remained in Nigeria while the defendant testified that he sent support and visited his wife one or two times a year. . . . [T]he parties maintained a modest standard of living with the family sharing a one-bedroom apartment. the parties did not travel or go out during the marriage.

. . . .

The plaintiff is thirty-four years old. The defendant is fifty-four years old. Neither party suffers any significant health problems except for plaintiff's psychological diagnoses and prognosis as found by Dr. Dasher. . . . Although there are no bright line rules which exist as to how the duration of the marriage factors into the equitable distribution equation, a spouses' equitable distribution award appears more legitimate in a marriage where the parties maintained a marital "partnership" with each contributing to the marriage and the raising of the family. The parties in their marital relationship maintained separate incomes and paid their expenses from their incomes. The plaintiff slept in the bedroom with the children and the defendant slept in the living room. The plaintiff attempted to dominate and control the family and isolate the defendant from the children as indicated by the domestic violence complaints and the allegation of sexual abuse. . . . There is no dispute that the marital relationship between the parties was less than amicable throughout the marriage. The defendant obtained graduate and post-graduate degrees prior to the marriage. Plaintiff obtained a university education in Nigeria but did not disclose the extent of her education over the four-year period that she was married to defendant and remained in Nigeria.

. . . .

[F]or all of the above reasons the parties' marital relationship was clearly not a partnership.

Plaintiff contends that the court arbitrarily arrived at an award of 25% of each other's pension, retirement and annuity accounts, amounting to an abuse of the court's discretion. However, "The purpose of equitable distribution is to divide property acquired during the marriage in a manner that is just under the circumstances of the case." Lawrence v. Lawrence, 237 B.R. 61, 78 (Bankr. D.N.J. 1999).

We are satisfied that the court properly considered the factors enumerated in N.J.S.A. 2A:34-23b when determining the award of alimony and in determining equitable distribution of the parties' marital assets, and that the conclusions of the court were reasonable based on the evidence.

IV

In the August 19, 2004 order awarding a dual judgment of divorce, the court awarded defendant "the sum of $7,500 in counsel fees." "N.J.S.A. 2A:34-23 authorizes an award of counsel fees in a matrimonial action and further requires the judge to 'consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good faith or bad faith of either party.'" Chestone v. Chestone, 322 N.J. Super. 250, 255-56 (App. Div. 1999) (quoting N.J.S.A. 2A:34-23). "Bad faith . . . can be shown by evidence of misuse or abuse of process to evade divorce obligations, seeking relief not supported by fact or law, intentional misrepresentation of facts or law, or acts that are vexatious, wanton or carried out for oppressive reasons." Lawrence, supra, 237 B.R. at 84.

The court, although mentioning the factors set forth in Williams, supra, focused on plaintiff's bad faith as a determining factor in awarding $7,500 to defendant. The court stated:

Black's Law Dictionary defines "bad faith" as "neglect or refusal to fulfill some duty or contractual obligation not prompted by some honest mistake as to one's rights or duties, but by some interest conduct or sinister motive." Bad faith is not just bad judgment or negligent actions, but "it implies the conscious doing of wrong because of dishonest purpose or moral obliquity." Borzillo v. Borzillo, 259 N.J. Super. (Ch. Div. 1992). Moreover, the economic position of the parties has little relevance where a party acts in bad faith since the purpose of an award is to protect the innocent party from unnecessary cost and punish the guilty party. Kelly v. Kelly, 261 N.J. Super. 303 (Ch. Div. 1992).

This case was extremely acrimonious litigation. This was a garden variety divorce whose progress was impeded by the plaintiff's inexcusable conduct in alienating the children and directing and encouraging false child sexual abuse allegations against the defendant as a father. The plaintiff also failed to provide accurate, complete and current information. Clearly the plaintiff breached her duty to the defendant and to her children in her attempt to demonstrate an extreme animus to the defendant by her wrongful conduct. It is clear that the defendant was forced to defend himself as to the child abuse allegation and to address the marital issues at the time of trial.

Although the factual record supports the court's finding of acrimonious and vindictive litigation, we are convinced that the award of counsel fees was unwarranted in light of plaintiff's limited income and defendant's ability to pay his own legal fees based on his $87,000 annual salary and by the fact that he had already paid over $4,500 of his own attorneys fees at the time of the judgment.

In summary, there was substantial credible evidence in the record to support the court's award of custody to defendant and temporarily suspending plaintiff's parenting time until she complied with the court's order to undergo psychological evaluation and treatment. The administration of the polygraph was voluntary on the part of both parties, and the results were used properly by the court as only one factor in making its custody determination. The statutory factors set forth in N.J.S.A. 2A:34-23b were properly evaluated and utilized by the court in its determination that limited-duration alimony for three years was appropriate in this case. The equitable distribution of property, including the parties' pension funds, was fair and equitable based on the court's analysis of the evidence and the case information statements submitted by each party. The court's award of $7,500 in counsel fees, however, was a mistaken exercise of discretion and must be reversed, as it did not afford appropriate consideration to plaintiff's inability to pay and defendant's ability to pay his own counsel fees. We do not retain jurisdiction.

Affirmed in part, reversed in part, and remanded in part.

 

 

We were informed at oral argument that plaintiff has never submitted herself to psychotherapy, has not filed a motion for reconsideration of the court's order of temporary suspension of visitation rights, and has not visited the children since the entry of the court's May 11, 2004 order changing custody.

Plaintiff's CIS provided that in 2003 she had gross earnings of $23,800, paid income taxes of $3,376 for net income of $20,424 or $1,702 per month over twelve months.

(continued)

(continued)

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A-0589-04T1

RECORD IMPOUNDED

June 29, 2006