WAYNE TROTMAN v. CAROL TROTMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1623-03T21623-03T2

WAYNE TROTMAN,

Plaintiff-Appellant,

Cross-Respondent,

v.

CAROL TROTMAN,

Defendant-Respondent,

Cross-Appellant.

________________________________________________________________

 

Argued December 5, 2005 - Decided February 8, 2006

Before Judges Cuff, Parrillo, Holston, Jr.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-761-99C.

John A. Hartmann, III, argued the cause for appellant-cross-respondent (Pellettieri, Rabstein & Altman, attorneys; Mr. Hartmann, of counsel and on the brief; Nicole J. Huckerby, on the brief).

Amy S. Newman argued the cause for respondent-cross-appellant.

PER CURIAM

Plaintiff, Wayne Trotman, and defendant, Carol Trotman, appeal and cross-appeal respectively numerous financial aspects of the Family Part's August 20, 2003 supplemental final judgment as to equitable distribution, alimony, child support and counsel fees. The parties also appeal the October 27, 2003 order partially amending the court's October 20, 2003 order. We affirm in part and reverse and remand in part.

Plaintiff filed a complaint for divorce on February 5, 1999. On April 15, 1999, defendant filed a counterclaim. After a fourteen-day trial beginning July 31, 2001 and ending May 30, 2002, the trial judge granted a dual judgment of divorce on May 31, 2002. On August 20, 2003, the judge issued a seventy-three page written opinion deciding the issues of equitable distribution, alimony, child support and counsel fees and signed a supplemental final judgment memorializing the court's written opinion.

On September 9, 2003, defendant filed a motion for reconsideration of counsel fees and equitable distribution of stock options. On September 12, 2003, plaintiff also filed a motion for reconsideration on numerous issues. On October 27, 2003, the judge entered an order determining the motions for reconsideration, attached to which the judge provided a written supplemental statement of reasons.

Plaintiff raises the following arguments in his appeal.

I. THE TRIAL COURT ERRED IN AWARDING DEFENDANT REHABILITATIVE ALIMONY.

II. THE TRIAL COURT ERRED IN DETERMINING THE AMOUNT OF PLAINTIFF'S ALIMONY OBLIGATION.

A. The Trial Court Erred in Determining Defendant's Monthly Budget As It Did Not Comport With The Marital Standard of Living.

B. The Trial Court Erred in Determining Plaintiff's Ability To Pay By Prorating Plaintiff's July 5, 2002 Paystub That Included A One-Time Bonus.

III. THE TRIAL COURT ERRED IN DETERMINING THE AMOUNT OF CHILD SUPPORT.

IV. THE TRIAL COURT ERRED IN DETERMINING THE VALUE OF THE MARITAL HOME AND FURTHER ERRED IN DISTRIBUTING 90% OF THE EQUITY TO DEFENDANT.

V. THE TRIAL COURT ERRED IN AWARDING DEFENDANT 90% OF THE EQUITY IN 44 BUTLER PLACE.

VI. THE TRIAL COURT ERRED IN THE INCLUSION OF AND DISTRIBUTION OF STOCK OPTIONS TO DEFENDANT.

VII. THE TRIAL COURT ERRED IN AWARDING DEFENDANT $11,750 AS HER INTEREST IN PLAINTIFF'S 1998 BONUS.

VIII. THE TRIAL COURT ERRED IN AWARDING DEFENDANT $55,107 AS HER INTEREST IN THE DREYFUS ACCOUNT.

IX. THE TRIAL COURT ERRED IN AWARDING DEFENDANT $22,000 AS HER INTEREST IN ONE WORLD FINANCIAL.

X. THE TRIAL COURT ERRED IN AWARDING DEFENDANT $2,700 RELATIVE TO THE JOINT SUMMIT ACCOUNT.

XI. THE TRIAL COURT ERRED IN DETERMINING THE VALUE OF THE SUMMIT 401K ACCOUNT.

XII. THE TRIAL COURT ERRED IN FAILING TO COMPEL DEFENDANT'S CONTRIBUTION TOWARD MARITAL CREDIT CARD DEBT TOTALING $27,000.

XIII. THE TRIAL COURT ERRED IN FAILING TO PROVIDE PLAINTIFF WITH A CREDIT RELATIVE TO THE DIVISION OF PERSONAL PROPERTY.

XIV. THE TRIAL COURT ERRED IN DIRECTING PLAINTIFF TO PAY 100% OF UNREIMBURSED ORTHODONTIA.

XV. THE TRIAL COURT ERRED IN FAILING TO PROVIDE PLAINTIFF WITH CREDITS RELATIVE TO VARIOUS EXPENDITURES.

XVI. THE TRIAL COURT ERRED IN AWARDING DEFENDANT COUNSEL FEES AND COSTS OF $10,000.

XVII. THE TRIAL COURT ERRED IN AWARDING PLAINTIFF ONLY 60% OF THE STOCKS, STOCK OPTIONS, BONUSES, PENSION, DREYFUS, ONE WORLD AND SUMMIT ACCOUNTS AS PLAINTIFF WAS ENTITLED TO A GREATER PERCENTAGE SHARE.

XVIII. THE TRIAL COURT ERRED IN ITS VALUATIAON OF AND DISTRIBUTION OF THE MARITAL RESIDENCE.

XIX. THE TRIAL COURT PROPERLY REFUSED TO APPLY INTEREST TO THE ONE WORLD NOTE.

XX. THE TRIAL COURT PROPERLY EXEMPTED THE RELOCATION PACKAGE FROM EQUITABLE DISTRIBUTION.

XXI. THE TRIAL COURT PROPERLY REDUCED THE PLAINTIFF'S OBLIGATION TOWARD DEFENDANT'S COUNSEL FEES AND DEBTS.

Defendant raises the following legal arguments in her cross appeal.

I. THE TRIAL COURT ERRED IN AWARDING 60% OF THE STOCKS, STOCK OPTIONS, BONUSES, PENSION, DREYFUS, ONE WORLD AND SUMMIT ACCOUNT TO THE PLAINTIFF WHO IS IN A SUPERIOR FINANCIAL POSITION.

II. THE TRIAL COURT ERRED IN AWARDING PLAINTIFF 10% OF THE GROSS VALUE OF THE MARITAL RESIDENCE RATHER THAN 10% OF THE NET EQUITY IN THE PROPERTY.

III. THE TRIAL COURT ERRED IN FAILING TO APPLY THE INTEREST TO THE ONE WORLD NOTE PRESENTED BY PLAINTIFF IN DETERMINING THE VALUE OF THE ONE WORLD INVESTMENT.

IV. THE TRIAL COURT ERRED IN FAILING TO INCLUDE THE RELOCATION PACKAGE WHICH PLAINTIFF RECEIVED IN THE MARITAL ASSETS SUBJECT TO DISTRIBUTION.

V. THE TRIAL COURT ERRED IN REDUCING THE AMOUNT OF ATTORNEY'S FEES AND DEBTS PAYABLE ON BEHALF OF DEFENDANT.

VI. THE TRIAL COURT ERRED IN COMPUTING THE PAYMENTS DUE TO THE DEFENDANT.

The parties met while attending the City University of New York (CUNY). Plaintiff graduated in 1983 with a business degree. Defendant graduated in 1984, magnum cum laude, with a degree in finance. When the parties married in June 1988, plaintiff was age twenty-eight and defendant was thirty-five. There were two children born of the marriage, Carolyn, currently age fifteen and Wayne Robert (Bobby), currently age eleven. Defendant had two children from a previous marriage, Candice, now age thirty and Kendall, now age thirty-two. When the parties were first married they resided in a one-bedroom condominium that they purchased on Butler Place in Brooklyn.

After their graduation from CUNY, both parties were accepted into a training program at Chase Manhattan Bank (Chase) called the Management Development Program (MDP). Upon completion of the MDP, each became an assistant manager at Chase. The couple's 1988 tax return showed that they earned roughly the same, with plaintiff earning $31,079 and defendant earning $30,187.

Defendant returned to Chase from maternity leave in September 1989 after Carolyn's birth in May 1989. At this time plaintiff entered into Chase's Credit Training Program. Thereafter, Carolyn developed a blood infection which caused defendant to miss substantial time from work and ultimately required her to quit her job in February 1991. The parties' 1991 joint income tax return showed earned income of $47,561, consisting of plaintiff's salary of $41,000 and defendant's salary until she quit her job.

In 1992, defendant decided to open a day-care business with her mother, at her mother's house. Defendant earned $11,700 from the day-care business, but after costs the parties' joint income tax return showed a loss of over $2000. Plaintiff earned a gross income of $54,360 in 1992. Plaintiff accepted a year-long transfer to London in October 1992, as a result of which the parties leased their Butler Street Condominium and moved to London where their son Bobby was born on February 11, 1993. While the parties were in England, they traveled to Belgium, Spain, Italy, and France.

In 1993, plaintiff's gross income was $79,929, but according to plaintiff this figure was "grossed up" to include expenses that his employer paid in London, including a portion of the couples' rent and car expenses. Plaintiff stated that his 1993 salary was actually $52,800. In November 1993, the London training ended and plaintiff accepted a position with Chase in Bala Cynwyd, Pennsylvania where he was the team leader of a private banking group that did high-end mortgages for high net-worth individuals. The parties bought a forty-five-year-old four-bedroom, three-and-one-half bath, center hall stone colonial house in Elkins Park for $189,000, in a "moderately upper-middle class neighborhood."

In 1994, Candice came to live with the parties while she attended Temple University. Plaintiff contributed to her tuition and listed her as a dependent on their tax returns. In 1994, plaintiff's earned income was $81,798. In 1995, against plaintiff's wishes, Kendall also moved in to attend Temple. Kendall's presence in the house added to the marital strain and plaintiff started sleeping in the family room.

Because plaintiff's office was being downsized, he left Chase and accepted a job at SEPTA in June 1995 at a starting salary of $102,880. In the fall of 1995, plaintiff met a woman at work and began an affair with her, which defendant learned about in January 1996. In 1996, plaintiff's income was $100,489.

Also in 1996, without defendant's knowledge, plaintiff withdrew $35,000 from the parties' Dreyfus IRA account to invest in One World Financial, an antique car company. Defendant said she learned of the withdrawal when she had to produce tax returns for Candice's financial aid. According to plaintiff, One World Financial, in July or August 1996, went "belly up." Plaintiff received $15,000 of his investment back and received an assignment of a note from Brian Kelly, a principal in the company, for $20,000 with 3% interest a week or $28,800 a year. At the time of trial, there was $115,000 in interest due on the note, but plaintiff claimed that it would be difficult to collect because Kelly was in prison.

In 1996, plaintiff accepted a job with Summit Bank in Cranford, New Jersey and moved alone to New Jersey on April 1, 1997. Plaintiff claimed he looked at the job change as the opportunity he was looking for to break their relationship, and that he had no intention of having defendant relocate with him. He told defendant that the marriage was over and that he would file for divorce. Plaintiff initially stayed in temporary housing in West Windsor, but in August 1997 he leased an apartment in Lawrenceville, in his sole name. Defendant and the children visited several times that summer at the complex's pool. Although the children stayed overnight, defendant never did, nor did plaintiff ever stay overnight in the parties' Elkins Park home.

Plaintiff admitted that defendant did not want to separate, and in 1996 they started marriage counseling which continued until mid-1998. According to defendant, plaintiff continued to come home on weekends, and she and plaintiff looked in the Princeton area for housing in the summer of 1997.

The rector of the parties' church, Reverend Milton Cole, testified that defendant told him that plaintiff had taken a job in New Jersey. However, Cole continued to see plaintiff at church until November 1997, when Cole left the congregation.

In May 1998, defendant and plaintiff went to New York for the wedding of a mutual friend, stayed with defendant's mother, and, according to defendant's mother, they slept in the same bed. Plaintiff denied that they stayed in the same bed or had sexual relations. In the summer of 1998, they went on a family vacation to the Poconos.

At Christmas 1998, defendant and the children went to Atlanta to visit defendant's parents (they had recently moved there) where plaintiff visited for two days, during which she and plaintiff slept in the same bed and, according to defendant, they had sexual relations. According to plaintiff, defendant was arrested in Atlanta, and he went there only to drive defendant and their children home. He admitted to sleeping in the same bed but denied having sexual relations. In early February 1999, according to defendant but denied by plaintiff, plaintiff visited for Bobby's birthday, and they had sexual relations.

During the marriage, defendant went to Trinidad annually to visit her friends and family, and the family also took a vacation every year. Plaintiff and defendant went to Jamaica twice. Defendant shopped at Macy's, Bloomingdales, Victoria's Secret and The Gap. Plaintiff had his shirts custom-made and monogrammed at Brooks Brothers. The parties went out to dinner about three times per month, according to plaintiff, and twice a week according to defendant. Plaintiff was a member of a country club where he played golf.

After defendant learned to drive in 1996, she got a 1983 Mercedes Benz that plaintiff bought for about $4400. Later, plaintiff bought her a 1996 Dodge Caravan. Plaintiff had a 1 987 Mercedes Benz 560 SL convertible that he bought in 1998 for $18,500 and he also had a company car.

Plaintiff's income in 1997 was $172,771, made up of a base salary of $120,000, a $10,000 signing bonus and other performance incentives. In 1997 when plaintiff joined Summit, he was given 1500 shares of restricted stock as part of his sign-on bonus, which increased to 2250 shares as a result of a stock split. The stock vested in equal shares over a five-year period, and he had to still be employed at Summit to exercise his options.

In 1998, plaintiff was promoted to senior vice president and his income was $193,787. In January 1998, plaintiff was granted 2400 non-qualified stock options which were exercisable on January 23, 1999. In 1998, he was also issued another 500 shares of restricted stock which also vested over a five-year period, at the rate of 100 shares per year.

In January 1999, plaintiff was granted 1500 shares of stock and 1150 performance stocks. In addition plaintiff was issued 9000 stock options, which he could exercise on January 22, 2000. In 1999, he was promoted to executive vice president, earned $243,267 and took a $20,000 IRA distribution. As of October 1, 2000, all of the stocks vested when Summit Bank merged with Fleet Bank.

Plaintiff contended that "since the value of [the stock options] are going to be based upon future action" i.e., "are the result[ant] of activities in the future that relate to me making money for the bank," defendant was not entitled to share in the grant of 9000 shares, although he conceded that she was entitled to share in the earlier grant of 2400 shares.

Plaintiff's wages in 2000 were $435,504. However, he contended that $205,000 of that income was a result of the restricted stock vesting on an accelerated basis due to the merger of Summit and Fleet Banks.

Plaintiff filed for divorce on February 5, 1999 and defendant was served on February 22, 1999. Defendant admitted that she paid a $3000 retainer to her divorce attorney in July 1998 because plaintiff was always threatening divorce and because she was concerned about the withdrawals he was making from their accounts.

Plaintiff claimed that defendant should be able to earn between $40,000 and $45,000 a year in the banking field. Defendant did not want to get back into banking because it would involve working nights and weekends when she had to take care of the children. At trial she expressed an interest in enrolling in a three-year masters in social work (MSW) program at Bryn Mawr College for $35,000, and thereafter working in social services management.

Except for the issues of alimony, the valuation of plaintiff's Dreyfus fund account and the ordering of plaintiff to pay 100% of the children's unreimbursed orthodontia expenses, we are not persuaded by plaintiff's or defendant's arguments and affirm in all other respects, substantially for the reasons articulated by the trial judge in her comprehensive seventy-three page written opinion of August 20, 2003 as amended by her supplemental statement of reasons for the October 23, 2003 order. See Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The judge's conclusions predicated on her factual findings are legally sound.

I

Plaintiff contends that the judge erred in awarding defendant rehabilitative alimony because the award was unsupported in the evidence. We agree.

N.J.S.A. 2A:34-23(d) 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 reemployment during which rehabilitation will occur." N.J.S.A. 2A:34-23(d).

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). "It is basic that the party seeking alimony, . . . must sustain the necessary burden of proof to justify the court in granting the relief sought." Ibid.
The judge found that "[i]n order to enable defendant to pursue the career path she identified at trial--the three-year masters degree program at Bryn Mawr College--the court deems it appropriate to require plaintiff to pay defendant rehabilitative alimony of $1,000 per month for three years." The judge concluded:

The rehabilitative alimony awarded herein is geared to achieve those purposes. Defendant will have three years to pursue further education and training to prepare her for the career she has chosen. She will be receiving $12,000 annually towards what she described as a three-year program costing approximately $35,000. The record is, admittedly, devoid of any evidence as to the range of incomes she would then be in a position to earn, upon completion of her three-year rehabilitative period. However, she will likely be able to contribute to maintaining the marital lifestyle with the additional limited duration alimony that continues for five years after the rehabilitative alimony ends. By that time, Caroline [sic] will likely be out of college, and [Bobby] will be in or about to enter college. To the extent this alimony award does not fully cover her living expenses (including her share of the children's living expenses) she [will] have to fill any such gap by finding some form of employment as she prepares for her future career of choice.

In Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996), this court held, "To vacate a trial court's finding concerning alimony, [an appellate court] must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or [it] must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole."

Plaintiff argues that defendant does not need to develop marketable skills in order to obtain employment because she already has them. Defendant has a college degree in finance, she completed the MDP at Chase, and had been employed in the banking field until 1991. Plaintiff, who is still in the same field, believes that defendant could earn between $40,000 and $45,000 a year. The record establishes, and defendant does not dispute, that she has the education, training and experience to reenter the job market in the banking industry. Further, defendant presented no evidence that she could not obtain employment in the banking field; she simply did not want to work in the banking industry.

Additionally and most importantly, defendant presented no evidence to support her need to obtain an MSW, no evidence of her aptitude for this field, no evidence as to what her salary would be at the end of the MSW program, and no vocational investigation into the availability of jobs in the field or evidence of an abiding interest in the field of social work. Defendant contends that it was not realistic for her to obtain a banking position due to the needs of her children.

Defendant claimed that she looked into banking in the Elkins Park area and learned that she would have to work in the evenings and on Saturdays. "That would take me away from the ongoing care of Carolyn and Bobby." Instead, she wanted a career that would "integrate the two." That led to her plan to seek a MSW. However, the record does not reflect that plaintiff investigated what career paths an MSW would qualify her for, whether less expensive MSW programs were available at other area colleges and universities or what time commitment her academic schedule would require.

The children currently attend school on a full-time basis. Defendant cites the children's extra-curricular activities as the reason that she cannot pursue employment in banking, but trial testimony indicated that the children's activities were scheduled in the evening. Defendant testified that her parents were available to help her if she attended school. There was no reason offered as to why her parents would not do the same if she needed help while she was working. We are satisfied that defendant failed to demonstrate that employment in the "social services" area would provide her with more flexibility for parenting time than employment in banking.

Defendant already has marketable skills and an ability to obtain employment. She has presented no evidence that a MSW will enable her to "'complete the preparations necessary for economic self-sufficiency.'" Milner v. Milner, 288 N.J. Super. 209, 214 (App. Div. 1996) (quoting Hill v. Hill, 91 N.J. 506, 509 (1982)). She simply wants to change careers.

In Finelli, the Chancery Division emphasized the importance of a party seeking rehabilitative alimony to provide testimony or evidence of expected employment and income. Finelli, supra, 263 N.J. Super. at 406-07. In this case, defendant clearly failed to do so. We are convinced that defendant's testimony did not meet the requirements necessary to support an award of rehabilitative alimony as outlined in Finelli, given that the record was devoid of any evidence as to the positions that would be available or the range of income defendant would be in a position to earn upon completion of her three-year program. Accordingly, we reverse the trial judge's award of rehabilitative alimony.

The August 20, 2003 supplemental final judgment ordered plaintiff to pay limited-duration alimony in the amount of $6000 per month for the next three years, and $4000 for two additional years. Plaintiff contends that the court's determination of defendant's monthly budget exceeded the parties' marital standard of living because it was based on defendant's March 2002 Case Information Statement (CIS). Additionally, plaintiff asserts that the trial court erred in determining his ability to pay by prorating his July 5, 2002 paystub, that he contends reflected a year-to-date income of $207,211.52, to a yearly gross income for 2002 in the amount of $402,412.92. Plaintiff claims that the July 5, 2002 paystub included a one-time bonus of $63,750 with Merrill Lynch, leading to the court's erroneous conclusion that plaintiff's gross weekly income was $7,799.

Defendant on the other hand contends that the court's determination took into consideration the parties' lifestyle during the marriage, not just in 2002, as was reflected in the judge's detailed analysis of the way the parties lived during their marriage. Additionally, defendant asserts that the alimony necessary to maintain her marital standard of living was based not only on the budget in her CIS as to her needs, but based also on the budget presented in plaintiff's CIS. Defendant further contends that the $63,750 one-time bonus was not a bonus but deferred compensation and therefore clearly income properly considered by the court in establishing the amount of the limited-duration alimony awarded to defendant.

It is not necessary for us on this appeal to resolve these competing contentions because we are convinced that the amount and duration of limited-duration alimony was so intertwined and inter-related with the trial court's mistaken award of rehabilitation alimony that the entire issue of alimony must be addressed anew on remand, after the taking of any additional testimony and the production of any additional evidence the court deems advisable and after whatever further briefing and argument the court deems necessary in order to fairly and equitably decide the alimony issue. We do not retain jurisdiction.

II

In the court's award of equitable distribution, plaintiff contends, and we agree, that the court erred in its valuation of plaintiff's Dreyfus IRA account at $137,767.43 by overvaluing the account by $35,000. The $35,000 in question was the amount plaintiff withdrew in 1996 and invested in One World Financial, a speculative antique car enterprise. By adding these funds back into the Dreyfus account after correctly making an equitable distribution of the One World Financial investment, the judge's decision amounted to a "double dipping" because the judge's order distributed the identical funds twice.

The judge justified the inclusion of the $35,000 twice by stating in her supplemental opinion on reconsideration: "The equitable distribution decision regarding this asset is to compensate defendant for lost interest [in the One World Financial investment] and the uncertainty that will always pervade this investment." While the judge's reasoning justifies the court's equitable distribution of the One World account, it does not in our view justify adding the $35,000 back into the Dreyfus account and then equitably distributing the same $35,000 again as part of the Dreyfus IRA account. The court's decision in that regard we find to be a mistaken exercise of discretion. Accordingly, on remand we direct the court to reduce the principal amount eligible for distribution from the Dreyfus account by $35,000 to $102,767.43.

III

Plaintiff claims that the court erred in ordering him to pay 100% of the children's unreimbursed orthodontia expenses because defendant's award of alimony included $150 in her budget in order to cover orthodontia costs. The judge ordered plaintiff to pay 75% of the children's unreimbursed medical, dental and optical expenses in excess of $250 per year but held him responsible without explanation for 100% of the children's unreimbursed orthodontia expenses, stating only that "he is in a financially superior position to afford those expenses." The judge provided no basis to distinguish orthodontia from other like expenses. Since defendant was awarded alimony to cover her share of the orthodontia cost, we are convinced that it was a mistaken exercise of the judge's discretion to not have required defendant to pay 25% of the unreimbursed costs for orthodontic care, the same as her share for other unreimbursed medical and dental expenses. On remand, the order should be corrected.

IV

Plaintiff contends that the judge erred in setting the complaint date as the termination date for inclusion of assets in equitable distribution, including the stock and stock options that he acquired after April 1, 1997. Plaintiff further argues that even if the complaint date were the proper date for inclusion of assets, that the stock and stock options should not have been included in equitable distribution because they were compensation for performance that occurred after the complaint was filed.

Plaintiff contends that the date of termination of the marriage for equitable distribution purposes should have been April 1, 1997, when he moved to New Jersey. He alleges that was the date the parties separated and the date the marriage irretrievably failed. This contention was vigorously disputed by defendant. The court, however, made credibility determinations in deciding the issue of date of separation. The judge stated:

[P]laintiff went to great lengths to attempt to establish April 1997 as the parties' date of separation for equitable distribution and support purposes. However, his own witness, Larry Sheffield, testified he had dinner with plaintiff and defendant in New Jersey a few weeks after plaintiff started working at Summit. Moreover, the court finds more credible on this point the testimony of defendant, supported by the testimony of Reverend Cole and her mother, that it was the intention of the parties to move in connection with the Summit job. Plaintiff acknowledged receiving a relocation package from Summit for "duplicate housing" pending such a move. Defendant and her mother testified to house-hunting efforts in the Princeton and New Hope/Yardley area. Revered Cole testified to seeing plaintiff at church functions through the spring and summer of 1997, prior to the reverend's departure for Delaware in October/November 1997.

In finding that the termination date was the date of the complaint, the judge concluded:

As set forth above . . . the court finds defendant's testimony as to the events leading to the "termination date" more credible than plaintiff's testimony on this issue. The court considers plaintiff's testimony as part of his effort to limit defendant's entitlements to his assets and earnings to the greatest extent possible. Our courts have consistently regarded the "date-of-complaint" as the termination of the marriage for purposes of determining what property is eligible for equitable distribution. Painter v. Painter, 65 N.J. 196, 217-218 (1974). The physical separation of the parties without a form of separation agreement in place "is an insufficient indication that a marriage is effectively at an end." Brandenburg v. Brandenburg, 83 N.J. 198, 207 (1980) (emphasis added). Not even a "partial distribution" of marital assets at the time of alleged separation suffices to establish an earlier date; an "agreed distribution" must involved [sic] "a large part of [the] marital assets." DiGiacomo v. DiGiacomo, 80 N.J. 155, 159 (1979).

Here, there was no distribution of assets attendant upon plaintiff's relocation to NJ to start his Summit job. While he testified that he "told" defendant his move was tantamount to ending the marriage, such evidence--even if credible--is insufficient, as a matter of law, to establish April 1997 as the termination date for this marriage. "In the absence of a qualifying separation agreement, the date a complaint is filed will fix the termination date of a marriage for equitable distribution." Brandenburg, supra [sic] 83 N.J. at 209.

"Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988)(quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord special deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). If these findings are supported by adequate, substantial credible evidence, there is no basis to disturb them. Rova Farms Resort, supra, 65 N.J. at 484.

In effectuating an equitable distribution, a judge engages in a "three-step proceeding." Rothman v. Rothman, 65 N.J. 219, 232 (1974). First, the judge decides "what specific property of each spouse is eligible for distribution." Ibid. Second, the judge determines "its value for purposes of [equitable] distribution." Ibid. Third, the judge determines "how such allocation can most equitably be made." Ibid.

The judge here correctly determined that the period of acquisition of property eligible for equitable distribution terminates the day the complaint is filed. See Painter v. Painter, 65 N.J. 196, 218 (1974). This rule was reaffirmed in Brandenburg v. Brandenburg, 83 N.J. 198 (1980), in which the Supreme Court stated that "[i]n the absence of a qualifying separation agreement, the date a complaint is filed will fix the termination date of a marriage for purposes of equitable distribution." Id. at 209. The Court added that "[i]f the parties have entered into a written separation agreement accompanied by actual physical separation, the date of the agreement will terminate the period of acquisition of distributable assets." Ibid. The Court continued: "In Smith [Smith v. Smith, 72 N.J. 350 (1977)] we reaffirmed the premise of Painter that 'the precise date on which the enterprise collapses--on which the marriage irretrievably breaks down--is generally impossible or extremely difficult to determine.'" Id. at 205 (quoting Smith, supra, 72 N.J. at 361).

The parties here had no separation agreement. As our detailed enumeration of the facts indicates, the precise date on which the marriage irretrievably broke down is not capable of precise determination. We are convinced therefore that the trial court correctly determined that the date the complaint was filed was determinative of which assets were includable for equitable distribution purposes. Therefore, plaintiff's argument that all of his stocks and stock options were exempt from equitable distribution is without merit.

V

Plaintiff contends that even if the complaint date were used, the judge still erred in distributing the stocks and options because the plan under which he was granted them "clearly indicated that future performance was necessary to enjoy the right of ownership." We disagree. The "Incentive Stock and Option Plan," Section 1(a) states:

Summit Bancorp . . . desires to afford certain key employees . . . who are responsible for the continued growth of the Company an opportunity to acquire a proprietary interest in the Company, and thus to create in such key employees an increased interest in and a greater concern for the welfare of the Company and its shareholders. The Company also seeks to retain the services of persons holding key positions with the Company . . . while motivating those persons, as key employees and shareholders, to achieve individual and corporate performance standards. (emphasis added).

Section 1(b) states that the common stock and options were "offered as a matter of separate inducement and are not in lieu of any salary or other compensation for the services of any key employee." Section 4(a) states: "Only full-time salaried key employees of the Company . . . who are in a position to contribute significantly to the Company's continued growth and development and to its long term financial success are eligible. . . ."

Plaintiff claims that he owned only 3800 of the 7800 shares of restricted stock as of the complaint date; the rest had not yet vested and were contingent on his future employment and performance. Plaintiff also asserts that the judge erred in including in equitable distribution 9000 stock options that plaintiff was granted on January 22, 1999, but were not exercisable until January 22, 2000.

In Pascale v. Pascale, 140 N.J. 583, 610 (1995), the Supreme Court set forth a clear basis for determining the issue. In Pascale, the wife argued that stock-option grants awarded to her ten days after she filed for divorce were not subject to equitable distribution. Id. at 607. She argued that 1800 of the options were awarded in recognition of past performance and that another 4000 options were awarded in recognition of a job promotion that imposed increased responsibility on her in the future. Ibid. The Court posited the issue as "whether the nature of the asset is one that is the result of efforts put forth 'during the marriage' by the spouses jointly, making it subject to equitable distribution." Id. at 609. The party seeking exclusion of the asset bears the burden of establishing immunity of any particular asset. Ibid.

The Court stated, "stock options awarded after the marriage has terminated but obtained as a result of efforts expended during the marriage should be subject to equitable distribution." Id. at 610. The Court concluded that both grants, the 1800 and 4000 options, were includable in equitable distribution. Ibid. Although the 4000 shares were in recognition of the wife's promotion, "that promotion came about as a result of the excellent service that she had provided to the company during her marriage." Ibid. Her husband's contributions to the home contributed to her success and "increased her worth for that promotion." Ibid. The other shares were in recognition of past performance and thus also includable. Id. at 608. The Court stated that "stock options are a form of deferred compensation for efforts expended during the marriage," and as such, "equity demands that the options be recognized as marital assets, and thus be subject to equitable distribution." Id. at 611.

The court in Pascale, analogized the stock options there to pension benefits, in which the pension benefits were the result of direct or indirect efforts expended by one or both parties to the marriage but its enjoyment was delayed. Ibid. Just as pension benefits that were awarded after the marriage, but obtained as a result of the efforts expended during the marriage were distributable, so were stock options. Ibid.

Plaintiff claims that the options were awarded for future efforts and thus were not includable in equitable distribution. Similarly, he contends that because the options vested over a period of five years and he had to remain employed to obtain the options, he did not obtain the options until after the marriage was over. While it is true that plaintiff had to remain employed to receive the options, the language of the stock option plan fairly implies that the options were awarded based on past performance of both the individual and the company as well as to give employees an incentive to keep performing. Plaintiff presented no expert testimony to the contrary. Plaintiff had the burden to establish that the property should be excluded. He failed to do so.

Lastly, defendant contends that the recent decision of this court in Robertson v. Robertson, 381 N.J. Super. 199 (App. Div. 2005) supports his position that the trial court erred by including his stock options in equitable distribution. However, the facts in Robertson are distinguishable from the facts here. In Robertson,

stock options [were] given in connection with the husband's employment with USA Interactive, which commenced on September 17, 2001, three days before the complaint for divorce was filed. The Family Part judge ordered that the wife be awarded a one-half interest in any stock options granted to the husband before the filing of the complaint. The options at issue, granted at the start of the employment, contained a provision that they would vest in one-fourth increments each year over the next four years on the anniversary date of employment.

On appeal, the husband contend[ed] that the wife should have no interest in these options, which were given after separation had occurred and within a week before the divorce complaint was filed, and which vested, at the earliest, twelve months later. The wife concede[d] that the husband's stock options "were given to him as an incentive for him to accept the position at USA Interactive." However, she contend[ed] that he would not have qualified for the job but for her support during the marriage.

[Id. at 203 (footnote omitted).]

The wife contended that since they were granted before the complaint for divorce was filed, she was entitled to share in them.

We disagreed. Critical to our decision was "our consideration of a principal purpose of equitable distribution: namely, to recognize and provide compensation for the contribution of each party to the joint marital enterprise, whether as a homemaker . . . or salary-earner." Id. at 204. In distinguishing Pascale from the facts in Robertson, we noted that "[a]t the time that the parties separated [on July 31, 2001], the husband was working at a company known as Double Click. Dissatisfied with his position at Double Click, the husband had started a search for different employment in May or June 2001. However, . . . he did not commence his new employment with USA Interactive until September 17, 2001." Id. at 205. "Stock options were issued to the husband immediately upon his employment with USA Interactive." Ibid. Therefore,

the conclusion [wa]s inescapable that they were offered as an inducement to commence employment, not as a recognition for past performance with the company, as in Pascale. There [wa]s no evidence that the vesting of those options over a subsequent period of four years was designed for any purpose other than as a means to insure the husband's continued employment with the company. As such, [we concluded that] the options in no fashion represented compensation attributable to the couple's joint marital endeavors.

[Ibid.]

As a consequence, we found Robertson had met his burden of establishing the immunity of the USA Interactive stock options from equitable distribution.

In this case, however, based on the precise language expressed by section 1(a) of the Summit Bank "Incentive Stock and Option plan," we are satisfied that plaintiff was granted the stocks and stock options by Summit for efforts he put forth during the marriage, which afforded him the status of a "certain key employee . . . responsible for the continued growth of the company" and thus entitled to "an opportunity to acquire a proprietary interest in the Company" and not as, in Robertson, an incentive to accept new employment with the company.

We are convinced that the court's determination that the stock options that were granted prior to the filing of the complaint were assets includable in equitable distribution was based on substantial credible evidence and that the court properly applied the governing law to the court's factual findings.

VI

Other than the above issues, we are satisfied that the judge's comprehensive seventy-three page written opinion, as supplemented by the judge's supplemental statement of reasons for order on remand, was based on substantial credible evidence in the trial record. Therefore, we conclude that the remaining issues presented by both plaintiff and defendant are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A) and (E).

Accordingly, we reverse the award of rehabilitative alimony and remand for reconsideration the issue of limited-duration alimony. We reverse the credit of $35,000 to the Dreyfus account and remand for modification of the order awarding distribution of this account to reflect a value of $102,767.43. We also direct that the order making plaintiff responsible for 100% of unreimbursed orthodontic costs be modified to require plaintiff to be responsible for 75% of those costs. We affirm otherwise the court's findings of facts and conclusions of law as memorialized in the two orders on appeal and cross-appeal.

 
Affirmed in part and reversed and remanded in part.

All issues as to custody and parenting time were decided by the Pennsylvania Common Pleas Court in an order dated June 5, 2002.

The judge awarded limited-duration alimony and rehabilitative alimony. Defendant did not seek permanent alimony.

(continued)

(continued)

33

A-1623-03T2

February 8, 2006