KENT J. MOTTLE v. KAREN HALEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1432-05T11432-05T1

KENT J. MOTTLE,

Plaintiff-Respondent/

Cross-Appellant,

v.

KAREN HALEY,

Defendant-Appellant/

Cross-Respondent.

_________________________________________________

 

Argued September 26, 2007 - Decided

Before Judges Axelrad, Payne and

Sapp-Peterson.

On appeal from Superior Court of New Jersey,

Chancery Division-Family Part, Mercer County, FM-11-621-03.

Nicole J. Huckerby argued the cause for

appellant/cross-respondent (Pellettieri,

Rabstein & Altman, attorneys; John A.

Hartman, III, of counsel; Ms. Huckerby,

on the brief).

Kent J. Mottle, respondent/cross-appellant,

argued the cause pro se.

PER CURIAM

Defendant, Karen Haley, appeals from certain provisions of a final judgment of divorce entered by Judge LeWinn in the action initially filed by her former husband, plaintiff, Kent J. Mottle. Additionally, Haley appeals from provisions of a post-judgment order entered by the judge on October 28, 2005.

In her appeal, Haley raises the following issues:

I. THE TRIAL COURT ERRED IN AWARDING PLAINTIFF A RETROACTIVE MODIFICATION OF HIS PENDENTE LITE SUPPORT OBLIGATION.

II. THE TRIAL COURT ERRED IN AWARDING PLAINTIFF 100% OF HIS RETIREMENT ASSETS.

III. THE TRIAL COURT ERRED IN AWARDING HALEY ONLY 35% OF PLAINTIFF'S STOCK OPTIONS.

IV. THE TRIAL COURT ERRED IN AWARDING PLAINTIFF A 100% INTEREST IN HIS RESIDENCE.

V. THE TRIAL COURT ERRED BY FAILING TO REQUIRE PLAINTIFF TO REIMBURSE HALEY FOR FUNDS WITHDRAWN FROM THE HOPEWELL VALLEY SAVINGS BANK ACCOUNT.

VI. THE TRIAL COURT ERRED IN FAILING TO PROVIDE HALEY WITH A $10,000.00 CREDIT FOR JEWELRY OR REQUIRING PLAINTIFF TO RETURN SAME AND FURTHER ERRED IN FAILING TO PROVIDE HALEY WITH A CREDIT FOR THE SCHIMMEL PIANO.

VII. THE TRIAL COURT ERRED REGARDING TAX EXEMPTIONS.

VIII. THE TRIAL COURT ERRED REGARDING DISTRIBUTION FROM THE CHILDREN'S CUSTODIAL ACCOUNTS.

IX. THE TRIAL COURT ERRED IN FAILING TO COMPEL PLAINTIFF TO CONTRIBUTE TOWARD HALEY'S COUNSEL FEES.

X. THE TRIAL COURT ERRED IN DETERMINING EACH PARTIES CONTRIBUTION TO THE PAY-OFF OF THE HOME EQUITY LINE OF CREDIT.

Mottle and Haley were married on August 25, 1979. Three children were born of the marriage, a daughter, born on November 15, 1988; another daughter, born on May 5, 1990; and a son, born on August 26, 1992. On or about January 16, 2003, Mottle filed a complaint for divorce alleging acts of extreme cruelty committed by Haley. On January 28, 2003, a consent order was entered, in which Haley agreed to return $85,000 withdrawn from a joint home equity credit line. With limited exception for "reasonable and regular household and family bills," the parties were restrained from withdrawing any funds from this account or from certain other financial accounts they maintained.

Haley's answer and counterclaim, alleging extreme cruelty on the part of Mottle, was filed on February 4, 2003.

On March 20, 2003, following oral argument, Judge LeWinn entered an order denying a request by Haley to find Mottle in violation of the January 28, 2003 order and mandating continued compliance with its conditions. Mottle was ordered to deposit the proceeds from any stock options obtained through his employment into a joint account. He was further ordered to pay unallocated pendente lite support to Haley in the amount of $2,000 per month, retroactive to February 5, 2003, the date Haley filed a motion for such support, and Mottle was ordered to pay two months' worth of arrears by April 1, 2003. Additionally, Mottle was required to pay for all expenses set forth in Schedule A of Haley's Case Information Statement (CIS) of February 4, 2003, except for the cost of such services as he chose to perform himself. The parties were permitted to make limited incursions on joint assets for the purposes of paying reasonable and regular family household bills, and each was permitted to withdraw $5,000 for payment of litigation expenses and counsel fees. Mottle was also permitted to withdraw $13,750 to furnish new housing he had acquired. Haley and the children remained in the marital residence. Notably, paragraph 14 of the order provided: "All pendente lite support and other financial issues addressed herein are without prejudice to proper credits and adjustments at final disposition." The judge also addressed custody issues that have no relevance to the present appeal. The judge's order was accompanied by a supplemental statement that detailed the court's reasons for its entry.

Haley moved for reconsideration of the court's custody and pendente lite support decisions. Following oral argument, Judge LeWinn issued a written order, dated May 23, 2003, denying Haley's request. By this same order, the parties were ordered to list property owned by them in Trenton for sale, with the net proceeds divided equally between them for use in satisfying any shortfalls in meeting pendente lite expenses. Additionally, Haley was ordered to reimburse $5,000 to the home equity credit line. The restrictions on withdrawals from joint accounts were modified to permit each party to withdraw $1,000 per month from an account maintained in the Hopewell Valley Community Savings Bank to meet any expense shortfalls pending the distribution of the proceeds from the sale of a property in Trenton. This account was identified as the chief source of liquid assets, and was to be exhausted prior to any further use of the home equity credit line. A request by the parties for payment of attorney's fees was again denied, the judge having determined that "each has adequate resources to pay his/her own fees. Hopefully each is motivated to avoid unnecessary escalation of fees in the future." As with the March 20, 2003 order, this latest order was accompanied by a written statement of reasons for its entry.

A twenty-day trial was held before Judge LeWinn in July and August 2005. On August 25, 2005, a final dual judgment of divorce was entered by the judge. The judgment granted the parties joint legal and physical custody of the children and ordered distribution of the marital assets as follows:

Haley was awarded 100% of the marital residence in Pennington, but was required to refinance the outstanding mortgage and, as a retroactive modification to Mottle's pendente lite support obligation, Haley was required to return $55,800 from the proceeds of the refinancing to Mottle as compensation for one-half of the amount expended by him for mortgage payments made during the thirty-one month period between commencement of pendente lite support and entry of the final judgment. Each party was to retain 100% of the retirement assets they currently held in their own names. Haley received forty-one shares of J&J stock then owned by Mottle. In addition, thirty-five percent of certain stock options Mottle had received through his employment were to be held in trust for Haley. If she wished to exercise these options, she was to provide the funds to do so and was to be responsible for any tax burden incurred by Mottle as the result of the exercise.

Mottle retained his 100% interest in a residence he purchased during the pendente lite period, and would not have to reimburse certain funds withdrawn during this time. Certain joint bank and brokerage accounts were to be divided equally. Mottle would pay eighty-two percent of the balance due on the home equity credit line, with Haley liable for the remainder, but Mottle would first pay off $16,000 he had withdrawn on this line without explanation. The order also allotted the family vehicles, of which there were three. Two vehicles went to Haley and one to Mottle, who received a $7,000 credit towards his $16,000 home equity line obligation due to this disparity, leaving a balance due of $9,000.

Haley had requested a credit for $10,000, owed as a result of the alleged removal of certain items of jewelry from the marital residence by Mottle. This request was denied.

Mottle's request to remove the furnishings from the marital residence was also denied. Mottle was obligated to reimburse Haley $3,812.37, which constituted one-half of a payment of the parties' Visa credit card bill made by Mottle utilizing money withdrawn from the Hopewell Valley account.

Mottle held a life insurance policy valued at approximately $29,000. This value was reduced by $25,000 for payment of counsel fees. Another policy was valued at just under $8,500, leaving Mottle with a net policy value of $12,661. Haley's life insurance policy, valued at approximately $59,500 and similarly reduced by $25,000 for payment of counsel fees, left her with a net policy value of $34,503. The court divided the $21,842 difference in these values in half, leaving Mottle with a credit of $10,921 on the life insurance policies. Mottle had a remaining obligation of $9,000 towards his initial $16,000 payment on the home equity credit line, and this was used to offset his amount due under the life insurance distribution, leaving Mottle with a credit of $1,921.

Mottle had amassed a substantial amount of frequent flyer miles through his employment, and the court awarded Haley 35,000 of these miles, with the remaining miles left over after this award to be disbursed equally. Haley also received fifty percent of the value of a hotel rewards program account held by Mottle, 3,895 miles from another of Mottle's hotel reward accounts, and a $2,912 credit from Mottle's 2003 tax return, which had resulted from an earlier estimated payment made by Haley.

Haley was awarded $5,500 per month in alimony, as well as $400 per month in child support. Mottle was required to maintain healthcare insurance for the three children; Haley was solely responsible for the first $250 per year of unreimbursed medical expenses per child, with any liabilities in excess of that amount to be split, 47% to Haley and 53% to Mottle.

On future tax returns, commencing with the 2005 tax year, Mottle could claim the older girl as a dependent and Haley could claim the younger. The parties could claim their son as a dependent on alternate years, with Mottle claiming him in 2005. Once one child was no longer eligible to be claimed, each party could claim one child on their respective tax returns until only one child remained eligible. At this point, the parties could alternate years claiming this child, with Mottle claiming the child in the first year that this circumstance occurred.

The final judgment next addressed college expenses, decreeing that the parties would both participate in such matters as college visitations and applications. For the oldest daughter, the net college expenses would be split, with Mottle bearing fifty-seven percent of the cost. As each of the remaining two children approached college age, the parties would exchange updated financial information, and their respective shares would be redetermined. Any money held in a custodial account for the benefit of a child would be considered the child's own property and would not be credited toward either parent's share of the expenses.

Finally, Mottle was required to maintain life insurance to secure his child support obligations in the amount of $150,000 per child. Haley was to be named trustee of the proceeds from any such policies. Mottle was also required to maintain $222,000 in life insurance as security for his alimony payments. Haley was obligated to maintain any life insurance available to her through her employment for the benefit of the children. A detailed, 124-page oral decision accompanied the judge's final order.

On or about September 8, 2005, Haley, through counsel, advised Mottle that she would shortly be delivering a deed and affidavit of title in connection with the refinancing of the marital home ordered in the final judgment. Haley also advised Mottle that refinancing could not occur until Mottle paid his eighty-two percent share of the parties' obligations on the home equity credit line, which share Haley calculated as $99,908.56 plus $16.34 for every day after September 9 that the balance remained unpaid.

On or about September 13, 2005, Mottle filed a motion for reconsideration of the final judgment of divorce. In that motion, Mottle sought to revise his obligations regarding the home equity line of credit, which the final judgment had apportioned by assigning the first $16,000 of this amount to Mottle, with Mottle paying eighty-two percent of the remainder. Mottle sought to have the first $92,000 of this credit line split equally between the parties, with the next $16,000 payable by Haley as the result of the operation of credits, and the remaining payment obligation split eighty-two percent to Mottle and eighteen percent to Haley. Mottle also requested clarification of the judgment's provisions regarding the exercise of stock options, asking that the order state that the distribution of any proceeds from the exercise of these options be net of any expense incurred in exercising them. Mottle additionally proposed a method for determining any tax liabilities incurred in the exercise of the options. Finally, Mottle sought a provision for the hiring of a certified public accountant in the event there was a dispute over the tax liabilities. Mottle also sought to remove his obligation to reimburse approximately $3,800 used in payment of the parties' joint Visa bill, requested the court order Haley to open a airline frequent flyer account to effectuate the transfer of Mottle's airline miles, and asked for an extension of time in which to complete the payment of certain sums due to Haley. Shortly thereafter, Haley cross-moved for sanctions and counsel fees, contending that Mottle's application contained deliberate falsehoods.

Additionally, on September 14, 2005, Haley had filed her own motion for reconsideration of certain aspects of the final judgment.

A hearing took place on October 14, 2005, which was followed by entry of an order of October 28, 2005. That order provided that the first $92,000 of the amount due on the home equity line of credit be paid from the proceeds of the refinancing of the marital home. The next $16,000 was to be paid by Mottle, and Mottle was to pay eighty-two percent of the remainder. However, Mottle was permitted to credit the $55,800 awarded as a retroactive modification of his pendente lite support obligation against his obligation on the home equity line of credit. Haley's request for reconsideration of the alimony and child support amounts set forth in the dual judgment of divorce was denied without prejudice. Her request that Mottle pay $1,347.97 in pendente lite expenses was granted. The court appointed Sharyn Maggio, C.P.A., to determine the most tax-effective manner of exercising Haley's share of the stock options; sixty-five percent of Maggio's fee was to be paid by Mottle, with Haley paying the remainder. The parties' requests for payment of counsel fees were denied. The court's order was accompanied by a supplemental statement of reasons for the order. On November 17, 2005, Judge LeWinn issued a one-page order clarifying her previous order.

On November 21, 2005, Haley filed her Notice of Appeal with this court, followed by Mottle's cross-appeal, filed on December 5, 2005. Since the withdrawal of Mottle's counsel on January 27, 2006, Mottle has proceeded with the appeal pro se and has not pursued his cross-appeal.

I.

On appeal, Haley first claims that the judge's decision to retroactively modify Mottle's pendente lite support obligation was erroneous and must be reversed. In her oral opinion at the conclusion of the divorce trial, Judge LeWinn stated the following with respect to the retroactive modification:

[W]hile awarding 100 percent of the marital residence [to Haley], the court deems it equitable to require her to pay [Mottle] the amount of $44,800 representing 50 percent of the monthly mortgage payments of $3,600 per payment that [Mottle] paid on the marital residence effective February 5, 2003, pursuant to this Court's order of March 13, 2003. . . . This decision is in response to [Mottle's] post-trial legal argument in support of his request for retroactive modification of his pendente lite support obligations, as well as references in the court's own pendente lite support orders rendering such pendente lite support without prejudice to adjustments at final disposition.

It is also in recognition of the fact that by meeting these obligations pendente lite, which included paying 100 percent of [Haley's] shelter expenses pendente lite, . . . [Mottle] thereby allowed [Haley] to enjoy continued residence in the marital residence during the inordinately long litigation history, two months short of two years in this matter.

Pursuant to the Appellate Division's equitable decision and rationale in Mallamo v. Mallamo, 280 N.J. Super. 8 at 12 (App. Div. 1995), the court deems it fair and reasonable to afford [Mottle] this relief. The court is aware that in March 2004 it granted [Mottle's] request to liquidate assets to purchase and furnish his own residence and specifically stated that he would not be permitted to seek a reduction of his pendente lite support obligations based upon his increased housing expenses. However, . . . it's now been more than a year, actually, since the entry of that order that [Haley] has had the benefit of remaining in the marital residence and having [Mottle] pay 100 percent of her shelter costs. Moreover, the residence that [Mottle] purchased does appear to be rather modest in comparison to the marital residence, and, as noted, [Haley] has now enjoyed almost two additional years in that residence at [Mottle's] expense, two years being from the date of the filing of the complaint.

In her motion for reconsideration, Haley challenged the judge's reliance upon Mallamo when ordering retroactive modification of Mottle's support obligation. The judge reaffirmed that reliance, stating in a supplemental statement of reasons for the October 28, 2005 order:

In Mallamo, the Appellate Division alluded to the trial judge's ability to "determine whether the supporting spouse has the economic means represented by the other spouse or in the case of declining income has suffered legitimate economic reversal or has been afflicted with a temporary case of diminished resources occasioned by a divorce." Id. at 16 (emphasis added). As should be clear from this court's trial decision, the court concluded that [Mottle] was unduly burdened financially by having to continue to pay the mortgage on the marital residence during this unduly protracted litigation. This is tantamount to finding that plaintiff's resources were diminished as a result of the divorce, as expressly contemplated by Mallamo. Therefore, the court concludes this decision is fair, equitable, and consistent with established case law.

On appeal, Haley again claims that Judge LeWinn erred in her reliance on Mallamo, the applicability of which she seeks to limit to circumstances in which the original pendente lite award was not based upon accurate information. Here, she claims, the judge did not find an error in the initial pendente lite support award, but instead impermissibly based her decision on the protracted nature of the divorce litigation that was not attributable to fault on Haley's part and was occasioned, in part, by the judge's own scheduling difficulties.

We find no error in Judge LeWinn's decision in this regard. As we recognized in Mallamo, pendente lite support orders are subject to modification both prior to the entry of the final judgment of divorce and upon entry of that judgment. 280 N.J. Super. 8, 12 (App. Div. 1995). Moreover, nothing that we stated in Mallamo requires a finding of fault as a basis for modification, but only evidence of inequity in the manner in which resources have been allocated in the pendente lite period. Jacobitti v. Jacobitti, 263 N.J. Super. 608, 618 (App. Div. 1993), aff'd, 135 N.J. 571 (1994).

Here, when allocating all mortgage payments to Mottle at the commencement of the pendente lite period, the judge evidently anticipated that the period would be short and that trial, and a final equitable distribution of the parties' property, would quickly occur. In order to maintain Haley's lifestyle at a time when a final disposition of resources had not been made, the court ordered that mortgage payments on the marital home be made by Mottle. When the dual judgment of divorce was finally entered approximately thirty-one months after Mottle's pendente lite obligations commenced, Haley received the marital residence as the result of equitable distribution, along with substantial additional resources, and she then assumed the mortgage obligation. In the meantime, although the record discloses that Mottle had modest liquid assets, he had been required to carry both the mortgage on the marital residence and the mortgage on a "rather modest" new residence necessitated by his separation from Haley, as well as all of Haley's other shelter expenses. In our view, Mottle demonstrated that he had been "afflicted with a temporary case of diminished resources occasioned by divorce," and Judge LeWinn properly invoked that fact in support of her conclusion that pendente lite support should be retroactively reduced.

II.

Haley additionally claims on appeal that Judge LeWinn abused her discretion when distributing marital assets. In this regard, she contests the judge's decision to award her none of Mottle's retirement assets, to award her only thirty-five percent of his stock options, and to award her no interest in Mottle's post-separation residence. Further, Haley claims that the judge erred in failing to require Mottle to reimburse her for funds withdrawn from the parties' Hopewell Valley Savings Bank account in May and June 2003 and in failing to provide her with a $10,000 credit for jewelry allegedly removed from the residence by Mottle and for the value of a Schimmel piano that he was permitted to take for his use and that of one of his daughters.

In making these arguments on appeal, Haley appears to take the position that, upon divorce, each party to a marriage is entitled to a rigorously-determined one-half interest in the marital property. However, N.J.S.A. 2A:34-23h requires only an "equitable" distribution. Further, the statute has been construed as granting a Family Part judge "'broad discretion and authority to fashion sagacious remedies on a case by case basis, which will achieve the ends of justice and fulfill the needs of the litigants.'" Pelow v. Pelow, 300 N.J. Super. 634, 646 (Ch. Div. 1996) (quoting Graf v. Graf, 208 N.J. Super. 240, 243 (Ch. Div. 1985)). The distribution of marital property, guided by the factors set forth in N.J.S.A. 2A:34-23.1, is committed to the sound discretion of the trial court, and can be reversed only upon evidence of an abuse of that discretion, which we do not perceive to exist in this case. Contrary to Haley's arguments, it is clear from the record that Judge LeWinn was aware of and considered the mortgage on the marital residence, but found the value of the house to be balanced by that of Mottle's retirement accounts, when tax consequences attendant upon accessing those accounts was considered.

Our review of the record in the matter demonstrates a concession by Haley's attorney at the motion for reconsideration that the judge was on "the right track" when considering the tax consequences of her distribution decision, and if Haley had not been required to repay one-half of the mortgage payments made by Mottle for the thirty-one-month pendente lite period, Haley would receive $399,000 and Mottle would receive $409,000, assuming the twenty-five percent tax rate for Mottle that Haley claimed was applicable. As counsel said: "No one's going to make a motion for reconsideration" based on those numbers. It was the mortgage repayment that skewed the calculation in Haley's view. We have already disposed of Haley's arguments concerning the mortgage repayment, Moreover, we are not required to accept Haley's position on the tax rate applicable to Mottle, and we note that if a higher rate were imputed, the balance of assets equitably distributed would swing in Haley's favor.

In sum, the equitable distribution arrived at by the court, when viewed in its entirety, appears to be both fair and reasonable. The parties received roughly equal awards, fashioned in a manner that would reduce or eliminate the need for either party to make an immediate cash payment out of non-liquid assets. Although the ultimate result may not have achieved precise equality, neither party can be said to have profited greatly at the expense of the other. In contrast, the result sought by Haley on appeal would have substantially disturbed the equality that the judge sought to create. Thus the judge's determinations constituted a proper exercise of her discretion.

We are satisfied that the judge did not err in rejecting Haley's claim for a $10,000 credit as the result of the "theft" of her jewelry on the ground that neither the theft nor the value of the allegedly lost jewelry was adequately established. We likewise perceive no abuse of discretion in the judge's decision to grant Mottle the couple's piano, particularly since Haley did not play it, she received virtually all of the house furnishings, and she made no objection to transfer of the piano's ownership at trial.

III.

Haley additionally claims that the allocation of the children for tax purposes constituted a misuse of discretion by the judge. On appeal, Haley contends that she should have been afforded the use of exemptions from taxation as the result of the children that were of no use to Mottle. While granting of such a remedy would not have been an abuse of discretion, we see no basis for Haley's argument that, by failing to incorporate this hypothetical circumstance into the allocation scheme, the judge erred. Her allocation was clear, easy to implement, and it fully addressed the circumstances existing at the time of the divorce. No abuse of her discretion occurred. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

IV.

In her oral opinion of August 24, 2005, Judge LeWinn addressed the issue of the children's education costs, allocating fifty-three percent of such expenses to Mottle and forty-seven percent to Haley. The judge held that to the extent either party held any custodial accounts on behalf of a college-bound child, the proceeds of those accounts were to be considered the property of the child and would not be credited to either party when allocating education expenses. However, the amount of these funds would be deducted from any education expenses, and the remainder would then be apportioned as specified.

Haley has contested the judge's refusal to credit custodial accounts against the obligation of the custodian to pay educational expenses. However, we find the judge's ruling to be consistent with our prior decision in Cohen v. Cohen, 258 N.J. Super. 24 (App. Div.), certif. denied, 130 N.J. 596 (1992). There, we held that the custodian of an account created for the benefit of a minor "may not use funds in the account to pay or reimburse herself . . . for expenditures which she is legally obligated to make from her own funds for the benefit of the minor who is the beneficiary of the custodial account." Id. at 29. Although our opinion in Cohen concerned the then-existing Uniform Gifts to Minors Act, it nonetheless expresses the principle, applicable here, that "the estate of a minor should not be charged for the support and maintenance of a minor where others are responsible and able to do so." In re Application of Conda, 104 N.J. 163, 170 (1986).

We note in this regard that, since the final judgment of divorce ordered each parent to pay a designated portion of the net educational expenses of each child, the effect of the judge's order regarding the disposition of custodial accounts still serves the salutary purpose of diminishing the total expense that must be met by the parents. Further, the judgment does not preclude a parent from establishing a non-custodial account, the liquidation of which could serve to satisfy that parent's educational expense obligations.

We regard the judge's limitation of the use of the custodial accounts to defraying educational expense to constitute a reasonable exercise of her discretion.

V.

At trial, both parties sought an award of attorney's fees, and both requests were denied. On appeal, Haley claims that the judge failed to recognize her clear need for such an award.

An award of counsel fees in a matrimonial action is a discretionary determination, Williams v. Williams, 59 N.J. 229, 233 (1971), reached after consideration of "the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23.

In her oral opinion in this case, Judge LeWinn found the fees incurred by both parties to be "astounding"; expressed concern about the family's ability to maintain its accustomed lifestyle, given the parties' current financial positions; and determined that Haley had unnecessarily extended the litigation as the result of her position on issues of child custody. Viewing current assets, the judge found that, although Mottle was "clearly the superior income earner," his income was substantially affected by the judge's award of nearly $6,000 per month in alimony and child support payments. After imputing an annual gross income to Haley of $50,000 a figure supported by the record and adding alimony and child support payments, the judge estimated Haley's gross annual income at $120,000, whereas Mottle's income after subtraction of child support and alimony payments was approximately $132,000. As such, the judge found a rough equality that supported a determination to deny any counsel fee award.

On appeal, Haley contends that the figures utilized by the judge were incorrect, and that her income is in fact approximately $20,000 less than the court calculated. However, she does not provide an evidentiary foundation for that calculation, or for an additional calculation resulting in an increase in Mottle's income by $6,000 per year. We therefore decline to accept those figures. Rather, we regard the judge's estimates to have been soundly derived, and her ultimate determination of the attorneys fee issue to have been within her discretion.

VI.

As a final matter, Haley challenges the judge's apportionment of liability for the home equity line of credit to require the parties to equally satisfy the first $92,000 of that amount. At trial, testimony was given that indicated that in 2002, money was withdrawn from the line of credit to purchase a row house in Trenton that was later sold, with the profits divided equally between the parties. However, the money was replaced by the proceeds of the sale of stock options by Mottle, shortly after the purchase of the house occurred. Additional testimony by Mottle, confirmed by Haley, indicated that $85,000 was withdrawn by Haley from the account on January 12, 2003 and deposited by her in the account that she maintained with the Hopewell Valley Community Savings Bank. However, repayment of those sums was ordered by the judge in the January 28, 2003 consent order. We have not been provided with any evidence of noncompliance with that order.

Following the trial, Judge LeWinn ordered in paragraph 10 of the judgment of divorce that the parties pay off the balance of the line of credit in accordance with their earning power, with Mottle responsible for eighty-two percent of the debt and Haley was responsible for eighteen percent. In his motion for reconsideration filed after the judgment of divorce had been entered, Mottle certified that:

It is undisputed that the balance [in the home equity line of credit account] at the time of the Complaint For Divorce was in the amount of $92,000. . . . This balance was incurred primarily for the purchase of the Trenton investment property which was acquired on April 19, 2002 for $[8]3,000 . . . . The remaining Complaint date balance likely related to other "large ticket" items such [as] home improvements (for the bathroom and bedroom) and summer camp incurred while we were an intact family.

In response, Haley certified that the initial withdrawal for the purchase of the Trenton property had been covered by a deposit derived from the sale of stock options, and that Mottle was thus incorrect in asserting that the account balance arose from the property purchase and the repayment obligation should be equally split.

Upon reconsideration, the judge ordered that the judgment of divorce be amended to provide that: "The parties shall pay off $92,000.00 of the balance due on the Fleet Bank line of credit from the proceeds of the refinancing on the marital residence." The judge wrote in an accompanying statement of reasons for her order:

Upon review of the record, it has become clear to the court that the parties did intend that the $92,000.00 balance on the home equity line as of the date of complaint was to be paid off from the proceeds of the refinancing on the marital residence.

Our review of the record supplied on appeal does not provide a foundation for the judge's conclusion. However, the trial record is not complete, and it is therefore possible that additional testimony was adduced that was relevant to the parties' positions and the judge's conclusion. Although we are reluctant to remand the matter for clarification of this point, particularly in light of the inordinate amount of time already spent by the parties in litigation, we find ourselves unable to resolve the issue raised by Haley on appeal. We therefore remand the matter for reconsideration of this limited issue.

Affirmed in part, remanded in part. Jurisdiction is not retained.

 

Mottle's cross-appeal appears to have been informally abandoned. No briefing in support of that appeal has been filed.

We have been provided a partial transcript of that trial that omits, among other things, testimony on child custody issues that are not relevant to the appeal.

The judgment states that Haley was to maintain such insurance "for the benefit of the children as equal beneficiaries with Mottle named as beneficiary." It would seem this is a scrivener's error, and that Mottle was intended to be designated as a trustee.

The order erroneously states the remainder "shall be shared by the parties 82% by Mottle and 19% by Haley."

Mottle required court approval to obtain the money required to furnish his new residence.

The record does not permit a determination of the increase in equity in the house occurring as the result of the mortgage payments.

Portions of the transcript relating to child custody, an issue that has not been appealed, have been understandably omitted. However, additional material appears to have been omitted, as well. For instance, the cross-examination of Haley has not been supplied, and we lack the full text of closing arguments.

(continued)

(continued)

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A-1432-05T1

January 30, 2008