KELLY FERDINAND v. JOHN FERDINAND

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1876-04T31876-04T3

KELLY FERDINAND,

Plaintiff-Appellant,

v.

JOHN FERDINAND,

Defendant-Respondent/

Cross-Appellant.

 

Submitted October 3, 2005 - Decided February 21, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1564-01-G.

Kelly A. Spino (formerly known as Kelly Ferdinand), appellant pro se.

George G. Gussis, attorney for respondent.

PER CURIAM

In an unpublished opinion dated December 4, 2003, we addressed a variety of issues raised by plaintiff Kelly Ferdinand in connection with the parties' September 5, 2002 final judgment of divorce and the trial judge's order of January 3, 2003 denying plaintiff's motion for reconsideration. Ferdinand v. Ferdinand, A-2349-02T3 (App. Div. Dec. 4, 2003). For reasons we expressed in that opinion at length, we affirmed in part, reversed in part, and remanded this matter in part for further proceedings. After our remand, the parties submitted briefs to the Family Part judge concerning the issues. On July 8, 2004, the Family Part judge issued an Amended Final Judgment of Divorce. The judge denied defendant John Ferdinand's motion for reconsideration on November 5, 2004. Plaintiff has appealed and defendant has cross-appealed. We affirm.

The great majority of the facts that are relevant to the issues on appeal were set forth in our earlier opinion and we will not repeat them here except for clarity. In that opinion, we agreed with plaintiff that the equal distribution of the anticipated income tax refund initially ordered by the Family Part judge would be unfair. We remanded that issue for his reconsideration of the disparity that the parties had paid in taxes as it related to an appropriate allocation of the refund. We agreed, in part, with plaintiff that the Previa was not an entirely immune asset for purposes of equitable distribution but we rejected plaintiff's argument that the judge erred in ordering that she be required to purchase defendant's interest in that vehicle. We found merit in plaintiff's argument that she was entitled to an increase in the amount fixed for child support to account for the extraordinary transportation costs she was bearing due to defendant's blindness and inability to drive. We reversed the judge's denial of any award to plaintiff for counsel fees because he failed to articulate findings in support of that aspect of his decision. We found no merit in plaintiff's several other arguments.

Following the proceedings on remand, the judge issued a written explanation of the reasons for his decision amending the Judgment of Divorce. To the extent that those findings and conclusions are challenged on appeal, we will address them in turn.

Plaintiff raises the following arguments on appeal:

Equitable Distribution

I. The trial court's method of distribution of the income tax refund for the 2000 tax year was not equitable as it did not adjust for the taxes already paid by the parties, did not follow the directive of the Appellate Decision and results in an unjust enrichment of the defendant.

II. The trial court erred in finding that the 1993 Toyota Previa was to have its equitable distribution based on stipulated value, as it was a depreciating asset and the trial court's error in determining it an exempt asset, not subject to equitable distribution, is the direct cause in further depreciation, resulting in unjust enrichment of the defendant and punitive treatment of the plaintiff.

Child Support

I. The trial court, on remand, again abused its discretion by denying compensation to the plaintiff for transportation services she provides for the children on behalf of the defendant during his parenting time.

II. The trial court erred by not adjusting the child support paid by each party to reflect the fact that only the plaintiff incurs any transportation expenses and did so in direct defiance of the Appellate Court Remand Decision.

III. The trial court abused its discretion by recalculating child support to reduce defendant's obligation and by excluding the compensation for sole transportation to the plaintiff as provided for in the Appellate Court remand decision, resulting in an unfair enrichment of the defendant and punitive treatment of the plaintiff, in defiance of the directive of the Appellate Court which specifically stated the trial court's decision was reversed only to the extent that it fixed child support without consideration of the plaintiff's extraordinary transportation obligation.

COUNSEL FEES

I. The trial court abused its discretion by not compelling the defendant, who is the only party that owns real property and has at least twice the income of the plaintiff, to pay the plaintiff's counsel fees for the trial, the first appeal, and the remand trial costs, as well as costs of this appeal.

Defendant raises the following arguments in his cross-appeal:

POINT VII

THE TRIAL COURT ERRED IN NOT CONSIDERING THE EVIDENCE ALREADY IN THE RECORD WITH REGARD TO THE PURCHASE OF THE PREVIA VAN TO ESTABLISH THE PERCENTAGE OF ITS EXEMPT VALUE.

POINT VIII

THERE IS NOTHING IN THE RECORD TO SUPPORT A FINDING THAT DEFENDANT HAS THE ABILITY TO PAY COUNSEL FEES AND THE TRIAL COURT ERRED IN NOT CONSIDERING THE BAD FAITH OF PLAINTIFF IN AWARDING COUNSEL FEES TO HER.

POINT IX

THE TRIAL COURT ERRED IN NOT ORDERING THAT ALL MONIES BE SET OFF BEFORE ANY PAYMENT IS MADE TO EITHER PARTY.

We have considered the arguments raised by each of the parties in the appeal and cross-appeal and have concluded that none of them has sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm and offer only the following brief observations.

Plaintiff first argues that the judge again erred in his allocation of the income tax refund, failing to adjust that calculation to account for the varying amounts that the parties had paid in taxes. We disagree. The July 8, 2004 amended judgment directed that, in light of the disparity of taxes paid by the parties, "the refund check, in the amount of $1,938, goes to Plaintiff. Further, the Defendant owes the Plaintiff an additional $136.00 as he has only paid $969.00 of his $1,105.00 obligation." Although the November 5, 2004 Order on Reconsideration directs plaintiff to either file an amended income tax return to secure this anticipated refund or, in the alternative, to make an unspecified payment to defendant, that did not alter the earlier directive that the entire refund, along with the additional sum allocated to her to be paid by defendant, would be plaintiff's.

Plaintiff next argues that the judge again erred with respect to the Previa. She argues that he should not have based his decision in part on the stipulated value of the vehicle, that he should not have considered the Previa to be exempt in any part, and that he should have utilized the value for which she sold it in his analysis. Defendant, as a part of his cross-appeal, argues that the judge erred in determining the percentage to which the Previa was exempt from equitable distribution. All but one of these arguments were raised and decided in the earlier appeal. To the extent that the judge was required to address the valuation of the Previa on remand, his decision precisely mirrors our directives.

Indeed, the only argument concerning the Previa that we did not previously address is plaintiff's assertion that the judge should have used as its value the $1,200 that she got when she sold it. Her argument, however, overlooks several other factors that would also affect the value of the Previa under her analysis. The buyer paid a significant sum to the garage owner who had repaired and stored it. Plaintiff had the benefit of the use of the vehicle after demanding that it be given to her during the divorce proceedings. Plaintiff was ultimately responsible for the waste of the asset.

Plaintiff's demand that the judge ignore all of these other facts and deem the value of the Previa to be exactly equal to the sum she received for it is meritless. The parties had stipulated to the value before these intervening events took place. We see no error in the decision of the judge to utilize that stipulated value on remand. Rather, it is appropriate that we defer to this finding, which is "supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Plaintiff also challenges the judge's decision on remand respecting a child support adjustment to reflect her costs for transporting the children. As a part of the amended judgment of divorce, the judge considered the evidence offered by the parties and concluded that an increase in child support of $50 per week would compensate plaintiff fairly for her additional transportation costs. He did not make a retroactive award. The order addressing the reconsideration motion did not refer to this award further.

The majority of plaintiff's arguments on appeal about the transportation costs are ones which she raised previously and which we found to be unpersuasive. In part, however, plaintiff appears to believe that because the judge did not repeat the directive that she be awarded an additional sum per week for transportation costs in the November 2004 order that he had rescinded the decision included in the order amending the judgment of divorce. We, however, do not understand the subsequent order to have changed the July 2004 award to her of an additional $50 per week to compensate her for the costs of transportation.

Nor do we discern any basis on which to interfere with the judge's award of the $50 weekly additional sum or his rejection of plaintiff's demand for retroactive relief. This aspect of the judge's decision was an appropriate exercise of his discretion for which there is substantial, credible evidence in the record. See Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999); DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976).

Both parties challenge the judge's decision on remand concerning an award of counsel fees. In our initial decision, we remanded this aspect of the matter to the judge because of the conclusory fashion in which he had addressed the original application. On remand, consistent with our directive, the judge considered the application and articulated with care his analysis of the relevant factors supporting his award. Based on our review of the record, we conclude that the award he made was within the sound exercise of his discretion and was based upon the applicable criteria. See Williams v. Williams, 59 N.J. 229, 233 (1971); Chestone v. Chestone, 322 N.J. Super. 250, 256 (App. Div. 1999). We reject as meritless the counsel fee arguments raised by both parties.

Finally, defendant asserts that the judge erred in denying his motion for reconsideration. In relevant part, that motion sought an order offsetting the sums owed by each of the parties. To the extent that this issue was raised in the context of a motion for reconsideration, however, relief could not be granted absent a demonstration by defendant sufficient to meet the test that we have previously imposed. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Viewed in that light, we find no basis on which to disturb the judge's decision.

 
Affirmed both as to the appeal and the cross-appeal.

(continued)

(continued)

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A-1876-04T3

February 21, 2006