JOHN J. PIERSON v. NANNETTE PIERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1930-07T11930-07T1

JOHN J. PIERSON,

Plaintiff-Respondent,

v.

NANNETTE PIERSON,

Defendant-Appellant.

___________________________________

 

Argued November 18, 2009 - Decided

Before Judges Cuff, Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-348-06.

Lawrence A. Leven argued the cause for appellant.

John J. Pierson, respondent, argued the cause pro se.

PER CURIAM

Plaintiff John J. Pierson and defendant Nannette Pierson were married on October 21, 1985, and divorced on July 26, 2007. The initial judgment of divorce and a supplemental judgment of divorce resulted from a settlement between the parties, with certain issues reserved for trial. Following a four day trial, the Family Part judge delivered an oral decision and entered a second supplemental judgment of divorce on July 30, 2007. Nannette appeals from the second supplemental judgment of divorce, as well as an order dated November 30, 2007, denying several post-judgment motions.

The issues raised on appeal concern (1) Nannette's involuntary removal from the marital residence following the divorce; (2) the amount of interim support given to Nannette between her removal and the sale of the marital residence (3) responsibility for interest and penalties on delinquent taxes resulting from the sale of a residence in South Carolina and the related late-filing of tax returns; (4) equitable distribution with respect to the marital residence; (5) responsibility for Nannette's health insurance; (6) imputed income attributed to Nannette in the event there is a need for child support; (7) a lien for counsel fees claimed by Nannette's prior counsel, which lien was imposed on her share of equitable distribution; (8) denial of Nannette's motion for reconsideration; (9) denial of Nannette's motion for a new trial; and (10) whether a different judge should preside over any remand proceedings.

We decline to address the issue of imputed income. It is our understanding that no child support is being paid by either party at this time, and that the parties agreed on the amount of spousal support prior to the trial. Child support will only become an issue when the marital residence is sold and then only if one or both of the children are still unemancipated and decide to reside with Nannette. At the time of oral argument before us, the marital residence had not been sold. Should the need arise, the issue of Nannette's income should be determined on the basis of then current facts, rather than facts that are almost three years old and projections as to future earning capacity made in 2007. As a result, the imputed income issue is moot at this time. "We will not render advisory opinions or function in the abstract." Zamboni v. Stamler, 199 N.J. Super. 378, 383 (App. Div. 1985).

We also decline to consider the issue of the lien for counsel fees, which is not properly before us. Nannette's prior attorney, who sought and obtained the lien, was not listed on the notice of appeal, and has not participated in the briefing and argument of this appeal.

I.

The following procedural history and facts developed at the trial and contained in the record, inform our disposition of this appeal.

A.

John and Nannette have two children: a daughter born in 1986; and a son born in 1990. The daughter was in college at the time of the trial. The record does not reflect her current status. The son was about to enter his senior year in high school, and would presumably be in college at this time. Nannette had a son from her first marriage, who is emancipated.

At the time of their marriage, John and Nannette each owned a residence. On February 20, 1986, they jointly purchased the marital home in New Vernon for $460,000. Some renovations were made before the couple occupied that home. The purchase and renovations were financed largely through bridge loans. The other residential properties were then sold and the loans repaid. The trial judge found that John contributed approximately $160,000 and that Nannette contributed approximately $200,000 to the initial purchase and renovation of the marital residence. During the marriage, there were very extensive additional renovations and improvements to the marital residence. The trial judge found that they were financed primarily by John's income. Nannette claimed that she should receive an additional $40,000 in equitable distribution from the sale of the marital residence in light of her greater contribution to its initial purchase price.

In 1992, John and Nannette purchased a lot in Hilton Head, South Carolina. The lot was sold in 2001 and the proceeds were used to purchase a residence in Hilton Head. Because the transaction was structured as a like-kind exchange, there were no tax consequences flowing from that transaction. See 26 U.S.C.A. 1031.

In 2005, while the divorce was pending, the Hilton Head residence was sold and the proceeds were escrowed. Escrowed funds in the amount of $180,000 were paid to Nannette for the purchase of another vacation home in South Carolina. Joint expenses and litigation costs were also paid out of the escrowed funds, which we understand have been significantly depleted.

Primarily as a result of the sale of the Hilton Head property, as well as some other financial transactions, the parties owed capital gain taxes of $237,000 for the 2005 tax year. However, they did not have the funds to pay the tax. In addition, they did not file timely tax returns for 2005. According to John, he was unable to prepare the returns because the financial documents were in the possession of one of Nannette's experts.

Prior to trial, the judge ordered that the overdue tax would be paid out of the proceeds from the sale of the marital residence. The parties subsequently agreed that the principal amount of the taxes should be borne jointly. Nannette took the position that she should not be responsible for the penalties and interest resulting from the late filing of the returns and the deferred payment of the capital gain tax. John disagreed, so the issue was tried.

The parties continued to live in the marital residence up to the time of trial. John used an office at the residence to conduct his arbitration business, which was the primary source of the parties' earned income. He sought to have Nannette excluded from the residence, arguing that her conduct toward him made his life intolerable. He also alleged that she was a bad influence on their seventeen-year-old son, because she had an affair with a young man who had lived with them in the marital residence. Although Nannette admitted to the affair, she denied that it had been conducted at the marital residence and that the son had any knowledge of it. She argued that it was in the son's best interest for her to continue living in the marital residence pending its sale.

Although the parties had agreed on the amount of spousal support, Nannette argued at trial that she was owed in excess of $4,000 for past medical expenses and that John should be required to continue to pay for her health insurance. John disputed the medical bills and the claim for ongoing payment for health insurance.

B.

The trial judge delivered an oral opinion concerning the issues tried on July 27, 2007.

With respect to the distribution of the equity in the marital residence, the judge decided on an equal distribution. He explained his reasons as follows:

Now, should those amounts be equalized? And my determination of that is no. First of all, [it is] twenty years later. Secondly, I've run through the remodeling, renovations, repair, and the like done to [the marital home] over the course of about eighteen years, such that the basis was increased from the acquisition price of $460,000 to a $1,500,000. So, about just over a million dollars [] has gone into the house by way of capital improvements, . . . [funded] exclusively, if not overwhelming[ly], by the earnings of Mr. Pierson.

This finding is significant for the reason that my conclusion is that those contributions, over the course of almost twenty years equalized the parties' interest in [the marital home]. [T]his is the only issue remaining in terms of how to distribute the proceeds of the sale, when the sale comes, hopefully soon, of [the marital home], and my determination is that the contribution by Ms. Pierson . . . should not result in a credit to her under [N.J.S.A.] 2A:34-23.1(i), because Mr. Pierson has made the financial contributions . . . to fund, repair, renovate, and remodel, and that accounts for the approximate $40,000 difference in contributions to the acquisition of [the marital home] at the outset.

Now, that does not, by any means, suggest that the distribution of the proceeds of the marital residence should be anything other than 50/50. It's clear that Ms. Pierson made significant, and important contributions to the marriage. The parties had two children. She was their caretaker. Mr. Pierson . . . I wouldn't say it was a classic . . . husband, bread winner, and wife, stay at home, and run the house, because Ms. Pierson did more than that. She worked too, and I'll talk a little bit about that in a few moments.

She worked for periods of time during the marriage as a hairdresser, and earned money, in her own right, and obviously in addition to her homemaking contributions, and child rearing contributions, she, too, made financial contributions. But over the course of . . . twenty years the contributions of the two parties come together, and suggest that they are correct when they divide the assets of the estate on a 50/50 basis. [M]y conclusion is that there has been so much time that has gone by, and contributions by both sides, that even assuming that there was a $40,000 differential in the initial contributions to funding the acquisition of the [marital] house, that has, simply, disappeared by virtue of the events of the subsequent twenty years.

The judge reached a similar conclusion with respect to the issue of interest and penalties related to the late reporting and payment of the capital gains for 2005. He explained his reasons as follows:

[I]f interest, and penalties are assessed, should Mr. Pierson . . . have to pay them in their entirety, or should they be shared, and my determination is that they should be shared equally, as the underlying tax liability is being shared equally, and the reason for that is, . . . this was a marriage, and although the property was sold at a time when the complaint for divorce was pending, it was a joint asset, it was jointly enjoyed, if I can say that, that is to say both parties made use of this marital asset, both parties vacationed there, lived there secondarily, as I say to their principle residence. Both parties are responsible for the taxes, and if the taxing authorities do assess interest, and penalties on the sum due, then both parties should be equally responsible to pay that.

So, that's my determination on the issue of whether the full impact of interest, and penalties on the $237,000 due for tax year '05 should be entirely visited on Mr. Pierson. Should it be shared? It should be shared equally, so that by the time the marital residence is sold, I presume the tax liability will have been paid . . . . They will be paid from the sale of the marital residence, and when that happens, if . . . the parties then know what the interest, and penalties assessed are, that will be equally divided off the top, as they say, before any division of the marital residence proceeds, the entire tax obligation for '05 will be paid off the top. So, that, effectively, both parties will be sharing 50/50 on that particular issue.

The judge granted John's request that he be given sole possession of the marital residence, ordering that Nannette be given an advance on equitable distribution in the amount of $50,000, plus an additional $50,000 if the house did not sell within one year. He explained his reasons as follows:

Now, here's what's behind this. Over two years, according to Mr. Pierson's version of events in the house, and I probably should say that I made some comments at the outset of this case that we were really having a trial to determine who should be ousted from the house. I thought about that, and I decided that I had said the wrong thing, and before . . . we [review] the evidence, . . . I was trying it on the basis of an open mind in the sense that I was willing to conclude that one of the . . . potential results would be both parties would continue to reside in the marital residence together, and that the status quo could be preserved until the sale. My statements, I effectively, cancelled them, and said that I had an open mind about trying this case, that one of the results could be both parties . . . continue to live there until the sale, or one or the other would be excluded, based on what I heard, and I listened to the evidence with that frame of mind. Nothing here was prejudged, and I'm making a determination on this issue based on the evidence and the law as I see it.

Now, the evidence, in terms of Mr. Pierson's view of things. [H]is attorney quoted me back to myself, which is always nice, and I had referred to a toxic atmosphere in this home, and I based that on two years of experience with the case, many, many motions, many accusations, a domestic violence complaint made by Ms. Pierson against Mr. Pierson, a call to the police made by Ms. Pierson, alleging impropriety in the house on the part of Mr. Pierson, acrimony, hostility, ranker, bitterness. It's all here, and so I use that term, and I think it's an accurate depiction of the circumstances that exist in that house.

Now, Mr. Pierson's contentions are that the atmosphere is so bad that the parties can't possibly continue to live together, and he fears that there will be future incidents between them that could amount to violations of the Prevention of Domestic Violence Act. He claims that Ms. Pierson is unstable, that she's erratic, volatile, explosive. That she is very, very angry, that she acts out, and that her rage is such that it is uncontrollable, that he, in his own words, is a "prisoner" in his home office.

I should describe, just for a moment, his work as an arbitrator, he has an office in his home, but not for purposes of receiving clients. [H]e is a neutral . . . arbitrator, and he goes off to sites to conduct arbitrations, brings what he needs back to the office, which he has maintained in the house since the beginning, and in the last renovation, in 2001, constructed a more expanded office for himself, but it's there that he does his writing. He keeps his books, his computer, his printer, his fax, his phone, his desk, certain aspects of a library, part of files, and personal financial files. Other files are kept offsite. And that's what we mean by his office.

He lives in that space. He says he sleeps in a reclining chair. Ms. Pierson said the chair broke, and now he sleeps on the floor, but there's no dispute about the fact that that's, basically, where he lives, behind closed doors. He says he's very frightened, or concerned about Ms. Pierson, and that it is dangerous, paraphrasing him, I think, to consider having them continue to live together, in spite of the fact that they've been there since the complaint was filed on September 22nd, of 2005. Of course, not without incident.

A domestic violence complaint [and the] issuance of a temporary restraining order on that complaint by Ms. Pierson [were] dismissed, the TRO was dismissed. There was no FRO issued. Judge Hansbury tried the case, and ruled against Ms. Pierson, who, during the course of the trial, on the record, apologized to Mr. Pierson for having filed the domestic violence complaint . . . and having sought the TRO, and blamed the whole incident on her attorney at the time.

By the way, her attorney she dismissed, . . . filed a motion to be relieved as counsel, and I conducted oral argument on that application, and I make this comment, because during the trial Ms. Pierson said that she didn't know why her counsel had left her, or had been dismissed, or had been relieved as counsel, but what she said at the time of oral argument on the motion -- she came and represented herself on the motion, what she said, and I know because I was here, and . . . it's on the record, so I can refer to it, in the history of the case -- she said, at the time, that she had lost faith in her law firm . . . because they had no integrity, and that was the reason, and during the trial she said that she didn't know why they were no longer her attorney.

Now, that's the way Mr. Pierson works. I've described what he does, and how he does it, and he lives in this office, and so, he describes this bad atmosphere, animosity, hostility, he describes his view of Ms. Pierson, her emotional volatility, her explosiveness, her anger, her rage, and he said that they just can't continue, and I think I said that he describes himself as a prisoner in his office when he is in the home.

And he also said that he has to be there because his office is there, and it would be expensive to move the office, and he'd have to set up a new office. Well, that's true in any event, because the house is on the market. So, he's going to have to move . . . his business out of there sooner, or later, and it doesn't strike me as a reason to exclude Ms. Pierson from the home, because . . . if he moved out, he'd have to set up a new office, when he's going to have to do that anyway. It may well be that if he had to move out now he might have to rent commercial space while he looked for a new residence, and so, he had to have duplicate costs in a commercial setting, when if he had the time to buy a . . . residence, he could buy one that contained a room that he could use as an office and, therefore, dovetail the two residential offices, such that he wouldn't have to incur the economic costs of the temporary office . . . in a commercial space.

I emphasize that he's in the position to have a home office anywhere, because he doesn't receive clients there, and it's not the kind of issue that a municipality, and its planning board would be concerned about.

He said that he wants to work in his home, because he does most of his work at night, that is to say his writing, and his award writing. [H]e says that to move would affect his earnings, but he didn't say how, except it would be more expensive. He says, also, that he's available to the family when he's in the house, although [his daughter] is at school, but [his son] is home at night, and he believes . . . that it's important for him to be in the home so that [his son] has a male example, or image.

Ms. Pierson disputes Mr. Pierson's presence. She said when he is home he locks himself in his room, and they don't see him, and he acknowledges that [is true] when she's around. Although, implicit in that is that he is about when [his son] is home, and Ms. Pierson is not.

In terms of his travel, he says it was limited. He did go to Rome for forty-eight hours. He went to Napa Valley for a week, but he took the kids. He went to South Carolina on a business trip for six days, last April, but that was with clients. He did have a London office, but no longer. He says he's there about ninety-five percent of the time.

Ms. Pierson doesn't really dispute that as of the current time.

He says his current office is vital to him. He's been there fifteen years, lives in the office. It's very convenient, but he will move when the house sells.

When asked directly why he wants Ms. Pierson out, he said because of this toxic atmosphere [and] the events that I've described, the domestic violence complaint, which was dismissed, there was another incident, I think subsequently when Ms. Pierson called the police in a circumstance in which she claimed that Mr. Pierson acted inappropriately in the house, disrobing in her presence. The police did respond, but nothing came of that.

Mr. Pierson is concerned that if the parties are together that Ms. Pierson might injure him, or their son. He doesn't want any confrontations. He wants to stay in order to maintain his business, and [his son's] stability. As I say, he wants a male figure in [his son's] life, and also cites Ms. Pierson's moral lapse in conducting, or carrying on a sexual affair with a young man . . . who lived in the home, beginning in about 2000, 2001, until he left there in the period . . . between 2003, and I think it was 2005. He said that she conducted an extra-marital sexual affair in the home . . . and that when he attempted to break it off Ms. Pierson stalked [the young man], and used the children, especially [their son] to try to bring [the young man] back to her, that she was manipulative, and grossly inappropriate in the home.

Ms. Pierson acknowledged the affair, explained it by the fact that the parties had no sexual relationship for many years, that she was feeling neglected, alone, lost, that she never . . . carried on the affair in the home, at least physically, that it was outside of the home, and that the children didn't know about it, don't know about it, weren't involved, and that it was not . . . as grossly inappropriate, as flagrant, or as destructive as Mr. Pierson describes it.

. . . .

She also says that Mr. Pierson would not be an appropriate care giver to [their son] in terms of cooking, cleaning, or the like, laundry.

She said that the physical affair took place in homes that [the young man] was building. He was in his early 20's at the time, and it wasn't explained how it was that he was building homes, although there were some references to the fact that he was involved in some business with Mr. Pierson, but that was not adequately explained so that I could really base anything on it. She said that she's never spoken to [their son] about this, or [their daughter]. She said that the children had a good relationship with [the young man], that [he] called her "mom" and him, Mr. Pierson, pops, . . . the [young man] was twenty-one when she engaged in this affair. [The young man] came to live in the house in 2002.

. . . .

Mr. Pierson focused on [the young man's] vulnerability at the time. He was a young man, age twenty-one. [H]e had lost his mother when he was four. He became ill with lymphoma, I believe, but it was a cancerous illness, and he underwent treatment.

Ms. Pierson said that [the young man] was the sexual aggressor, if you will, in the relationship. Mr. Pierson claimed otherwise. Ms. Pierson said that she threw [the young man] out of the house during a summer while she was in Hilton Head, and demanded that he leave. She said that she stopped seeing him one year after the first incident, prior to 2005. . . . [S]he told Mr. Pierson of the relationship in September of 2005, cites the fact that he didn't assert adultery, or that she was an unfit mother in . . . the complaint. She said [their son] doesn't know of the relationship. She claims that the plaintiff told [her son from her first marriage] about it, got him drunk. He has problems with alcohol, and then told him.

Mr. Pierson's contention is that Ms. Pierson was the aggressor, and that she was the one who initiated the relationship, and worked to carry it on even when [the young man] sought to end it.

Now, I have to make some comments and observations about what transpired during the trial, because it's important to my decision.

My conclusion here is the parties should not continue to reside together. The primary reason for that is what I observed during the trial, in terms of Ms. Pierson's conduct and behavior.

She is extremely emotional, at least at this time, and very angry. There were a number of outbursts, anger on the stand that I observed, bitterness, her voice raised, her eyes glazed at one point with rage and fury.

When cross examined about the affair she left the courtroom. . . . [S]he said on the record that she felt that she was going to be sick. Virtually ran out of the courtroom yelling that all she wanted was a divorce, that the whole matter was ridiculous, and venting in a way that was extraordinary in my experience in the courtroom.

It was an uninhibited, uncontrolled, emotional outburst that comprised rage, fury, upset, emotional upset. But the fact is and the important part of it is, is that it was completely uncontrollable by her.

Throughout the trial, and I eventually gave up on this, Ms. Pierson was conducting a virtual commentary. On testimony I asked her not to do it, [but] she continued. When there were objections she participated, tried to participate in arguments about objections. I told her not to do it, but she continued. She's unable to control herself.

And I made that observation throughout the trial, and it's critical to my determination here because at the conclusion of the plaintiff's case there was a . . . claim for relief that the court exclude Ms. Pierson from the marital residence until such time as it is sold, and Mr. Leven's cogent argument was that they're tenants upon the divorce and that . . . the situation would have to amount to domestic violence, or something affecting the best interest of [the children], but primarily [their son], because he's the one who's there, or diminution of the asset. And the last is not a factor.

But my concern is that . . . a Judge sitting in the Family Court has some responsibilities to the parties, to society in general, to see to it that parties over whom the Judge has jurisdiction and whose lives the parties have entrusted in many respects to the court, and that of their children for protection, and fairness, and some measure of justice. My conclusion is that the authority of this court goes beyond where Ms. Pierson would limit it in this situation, that I do have to watch out for the preservation of this asset for the protection of the parties, and also for the best interest of the children, which Ms. Pierson through Mr. Leven acknowledges would be a factor for me to consider.

Now, based on what I've seen in this courtroom, my conclusion is at the very least I have good reason because of Ms. Pierson's anger, and uncontrollable anger from what I've seen, and uncontrollable emotional outbursts, that it is not in [their son's] best interest . . . to continue to reside in this house with both of his parents.

And that even though two years have passed since the complaint, and even though the parties have lived together, and even though it was been relatively without incident for perhaps as much as a year, the domestic violence complaint was . . . in 2006.

[T]he second incident involving [a] Madison Police response to the home was almost in 2006. Ms. Pierson apologized on the record for filing the domestic violence complaint, blamed it on her lawyer, and says that now things have calmed down, it's peaceful, why not just let us both live there until the house is sold.

My conclusion is that would not be responsible, it would not be prudent, because . . . one of the arguments that Mr. Pierson's counsel made was that if Ms. Pierson is going to carry on the way she did in a courtroom in the presence of a Judge, and a Court Officer, [then] what is she capable of doing in the uncontrolled, unsupervised precincts of this house. And possibly in the presence of her son.

And my conclusion is that her conduct and her behavior could very well and will pose a danger to [their son], if she continues to live there.

And that is the situation that could certainly be exacerbated by entry of the judgment of divorce, [because] then the parties [will not] be married, and it could cause her to feel that she has even greater leeway to act out and to direct her rage and her uncontrolled emotional instability at Mr. Pierson.

So, I honestly, I did not think I would come to this conclusion midway through the case. I denied the motion to dismiss under the standard of the rule on dismissal at the close of plaintiff's case, and indulged the plaintiff's proofs as I must, as I had to, and gave them the widest latitude.

But now that the entire case is in, my conclusion is that I do have authority. I'm basing it primarily on [their son's] best interest, but I don't limit it to that. I believe that the authority of the court goes beyond where Ms. Pierson would limit it, but even accepting one of her premises that I would have the authority to protect [their son's] best interest, . . . I'm doing more, I'm protecting the asset, I'm protecting the peace of this former marital residence, and protecting the parties.

Now, there's something to be said about the fact that Ms. Pierson, if excluded from the marital residence, . . . would be losing financially. And there are some things we can do about that.

First, she would have to pay anyway. I . . . wouldn't have the two parties living in the marital residence without her contributing. So, she's going to have cost of living anyway. She wants to stay in the area until [their son] graduates from high school in a year. [A]nd so, she would have to be paying some measure of the expense of the mortgage, the taxes, the insurance, the maintenance.

[DEFENSE COUNSEL]: Judge, with all due respect, we settled that issue. That's part of the settlement that he would be carrying the full expense of the house ending the divorce. That was part of the settlement.

THE COURT: Okay. I'll retract those statements. He agreed to do that. And so, we're focusing then on . . . how to make it possible for Ms. Pierson to find a place, and have enough money to support herself before the house sells, and she has the benefit of the equitable distribution.

Well, the answer to that is I'm going to order Mr. Pierson to borrow money if he has to, and make a payment to Ms. Pierson on or before September 15th in the amount of $50,000. That money will be an advance, it's an advance of equitable distribution which she will be able to use to locate housing, to pay a deposit, if it's for a rental, because she says that she doesn't want to live here on a long term basis, and that will assume the house sells in a year. What if it doesn't sell in a year? Then he'll do it again, another advance in the amount of $50,000 for another year.

The house has been on the market for a year, so, there's a potential . . . this house could sit for two years. But that is the way I'll deal with this problem of Ms. Pierson having some resources in addition to the $40,000 under alimony, and the imputed income.

I underscore my reasons for this do not include any kind of punishment or retribution against Ms. Pierson for having filed a domestic violence complaint. [I]t is her right to do that. It was dismissed, but this is not a matter of somehow punishing her for having done that.

That's not one of the basis for this conclusion. The basis for the conclusion is that I am concerned about [their son's] best interest, in that as long as his parents live together, and in this very, very hostile environment, his best interests are not being served, I think they should live apart . . . . There are more reasons to suggest Mr. Pierson should continue to live there until it's sold, [not] because of his office, but because I'm trying to preserve the peace, and so that suggests that Ms. Pierson would be the one to leave.

Finally, the judge concluded that Nannette had not carried her burden of proof on the issue of the unreimbursed medical expenses. He rejected her argument that John had made a change to his medical coverage that disadvantaged her. He also determined that neither Nannette's testimony nor the medical invoices and other documents introduced at trial supported her claim to additional funds from John. He did not, however, address the issue of Nannette's health insurance going forward.

C.

On August 16, 2007, Nannette moved for (1) a new trial, alleging misconduct by John; (2) reconsideration of the judge's decision as it related to the issues raised in this appeal; (3) a stay of the order requiring Nannette to vacate the marital residence in the event the judge did not vacate that order; and (4) other relief not relevant to this appeal. Her motion was supported by a certification from her attorney, but not one of her own.

Nannette alleged that John engaged in misconduct in two ways. First, she alleges that he surreptitiously received legal advice from an attorney who had (1) represented her in connection with her first divorce; (2) then become a family friend of both parties; (3) attempted to mediate their divorce settlement; and (4) then stated that he was unable to represent either party in the divorce.

Second, Nannette alleged that John had written a letter to a Presbyterian minister, who had apparently retired from New Jersey to Florida, accusing her of misconduct in connection with the affair previously mentioned. The stated purpose of John's letter was to enlist the minister as a witness on John's behalf at the trial to testify concerning Nannette's employability in the Presbyterian Church. Nannette alleged that the letter damaged her reputation with a member of the clergy whom John had reason to believe might assist her in obtaining ministry-related employment, thereby impairing her ability to earn a livelihood as anticipated by the imputed income and her agreement to the amount of alimony set forth in the parties' settlement agreement.

Nannette also alleged that, shortly after the date of the letter to the Presbyterian minister, she received a letter from a Roman Catholic priest, the pastor of a parish in New Jersey, informing her that he had filled the position of director of religious education for which she had applied. Although Nannette suggests that John's letter to the Presbyterian minister resulted in her failure to obtain employment at the Roman Catholic parish, she offered no further facts to support her assertion that the minister communicated unfavorable information about her to the priest.

John opposed the motion, but did not file his own certification. With respect to the request for reconsideration, John made essentially the same arguments he made during trial and on this appeal. With respect to the request for a new trial, he pointed to the fact that Nannette relied solely on the certification of counsel, which referred to attached documents that had not been authenticated.

The trial judge denied Nannette's motion. He found that Nannette had not raised arguments warranting reconsideration of his prior decision. Although he observed that he could have denied the motion for a new trial on the basis that Nannette had not submitted her own certification or documents that had been authenticated, citing Rule 1:6-6, he addressed the merits and found as follows:

Under Rule 4:49-1, the judge shall grant a motion for a new trial if it clearly and convincingly appears that there was a miscarriage of justice under the law. There is no clear and convincing showing that there has been a miscarriage of justice. The exhibits that defendant submits and the assertions that she makes in her certifications fail to convincingly and clearly show that anything specific occurred, let alone that plaintiff has engaged in gross misconduct. Defendant fails to cite any authority for her assertion that the mere appearance of impropriety is enough to declare a mistrial, and she fails to cite legal authority in any way that adequately supports her argument that this court should grant her a new trial.

This appeal followed.

II.

Before turning to the specific arguments raised in this appeal, we address our scope of review.

Our scope of review of a Family Part judge's factual findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998); Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007). We are generally bound by the trial court's findings of fact "when supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. This is especially so when questions of credibility are involved. Id. at 412. In addition, "[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. In addition, because of the special expertise of Family Part judges, "we do not second-guess their findings and the exercise of their sound discretion," and we recognize that "'[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). However, a trial judge's legal decisions are subject to our plenary review. Crespo, supra, 395 N.J. Super. at 194; Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

A.

We turn first to the issue of Nannette's involuntary removal from the marital residence following the divorce. She argues that such removal is permitted only when there has been a finding of domestic violence and that, even if the trial judge had such discretion absent a finding of domestic violence, it was abused because there was no factual basis in the record supporting his decision to remove her. John argues that a Family Part judge has the inherent authority to order such relief, and that the trial judge did not abuse his discretion in exercising that authority in this case.

Nannette cites Roberts v. Roberts, 106 N.J. Super. 108 (Ch. Div. 1969), in support of her argument that the trial judge had no authority to remove her. In Roberts, the plaintiff in a pending divorce action sought by motion to enjoin the defendant from entering the marital residence because of "physical extreme cruelty." Id. at 109. The defendant challenged the trial court's ability to grant such relief. Ibid. The motion judge denied the relief sought by the motion, but ordered a plenary hearing on the issue. Id. at 110. He did not, however, determine that he lacked the judicial authority to grant the relief:

Under the general equity power this court has the authority to grant the relief sought. However, we should be reluctant to exercise the power on the content of conflicting affidavits. Such a factual impasse calls for the taking of testimony before the court.

[Id. at 109.]

In S. v. A., 118 N.J. Super. 69, 70 (Ch. Div. 1972), the same judge premised his authority to exclude a wife from the marital home on the best interest of the minor children residing there.

In Degenaars v. Degenaars, 186 N.J. Super. 233, 234 (Ch. Div. 1982), the husband had voluntarily left the marital home and the wife was attempting to block his return. The court found "that it ha[d] the power and jurisdiction, both by legislative fiat and by invoking the historical equitable jurisdiction inherently possessed by this court, to grant the relief sought." Id. at 235. The court granted the wife's request despite the absence of "definitive proof of danger of actual physical or emotional injury to the remaining spouse and children." Id. at 234.

In N.B. v. T.B., 297 N.J. Super. 35, 42 (App. Div. 1997), we explicitly recognized the power of a Family Part judge to exclude a spouse from the marital home whether or not there had been domestic violence. We vacated a domestic violence restraining order barring the husband from the house, finding that his conduct did not rise to the level of domestic violence under the provisions of the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Ibid. Nevertheless, we recognized the inherent authority of a Family Part judge to grant such relief in an appropriate case:

We recognize that parties in the midst of a tumultuous matrimonial dispute should ordinarily not reside under the same roof. However, that is a matter for the matrimonial court to resolve. The matrimonial court has equitable power to remove a spouse from a marital home on a proper showing even if the home is owned by both as tenants by the entirety. Disputes which do not rise to the level of domestic violence can and should be addressed and resolved by the Chancery Division, Family Part, of the Superior Court without necessarily relying on [Act].

[Ibid. (internal citations omitted).]

It was implicit in our decision that adoption of the Act did not nullify the court's inherent equitable power to grant similar relief.

We are satisfied that the facts in the record support the trial judge's exercise of discretion to bar Nannette from continued residence in the marital home once the parties had been divorced. Because the marital residence was to be sold, it was inevitable that both parties would have to move. Unlike Nannette, John conducted his business using a home office already established in the residence. Consequently, it was easier for her to relocate. There was credible testimony, supported by the trial judge's own observations during the trial, that the continued presence of both parties in the same home would prolong a volatile situation, which the trial judge attributed primarily to Nannette. Finally, there was evidence in the record from which the judge could have found, as he did, that Nannette's exclusion was in the best interest of the parties' son.

The trial judge's factual findings are entitled to enhanced deference because they were based on the credibility of witnesses that appeared before him. Cesare, supra, 154 N.J. at 412. In addition, as already noted, "we do not second-guess [the] findings and the exercise of [] sound discretion" by family judges. Hand, supra, 391 N.J. Super. at 111. In Randazzo v. Randazzo, 184 N.J. 101, 111 (2005), the Supreme Court noted the broad power of Family Part judges to craft remedies in matrimonial actions:

In interpreting the purpose and breath of N.J.S.A. 2A:34-23, the court found that "the Legislature intended to invest a court with broad discretion under [that statute] to make such orders as are 'fit, reasonable and just' to protect the parties and dependent children during and after the dissolution process." [Pelow v. Pelow, 300 N.J. Super. 634, 644 (Ch. Div. 1996)]. The court found that a rigid and literal reading of the statute would not serve its intent. Ibid. The court concluded that the "overriding 'purpose of [N.J.S.A. 2A:34-23] is to give a matrimonial judge broad discretion and authority to fashion sagacious remedies on a case by case basis, which will achieve justice and fulfill the needs of the litigants.'" Id. at 646 (quoting Graf [v. Graf, 208 N.J. Super. 240, 243 (Ch. Div. 1985)]).

For those reasons, we affirm the provision in the second supplemental judgment that required Nannette to move out of the marital residence after the divorce had been granted.

B.

We do not, however, take the same view with respect to the judge's decision to award Nannette only an advance on equitable distribution to cover her additional living expenses.

Although John is apparently paying all of the carrying charges for the marital residence, he is also, in effect, living in a joint asset without paying any rent to the co-owner. Awarding Nannette only an advance on funds she was entitled to receive anyway was not sufficient under all the circumstances of this case, especially because she was not moving out of the joint asset voluntarily. In addition to the agreed-upon alimony and the advance on her share of the equitable distribution, Nannette is entitled to receive compensation for John's use of the joint residence prior to its sale.

The trial judge abused his discretion in failing to compensate Nannette for John's continuing use of the joint residence from which she had been excluded. Consequently, we reverse that aspect of the second supplemental judgment and remand to the Family Part for calculation of Nannette's share of the rental value of the marital residence from the time she moved out through the time of sale.

C.

We now turn to the issue of liability for the penalties and interest resulting from the late filing of the 2005 tax returns and the late payment of the capital gains taxes. Nannette argues that they should be solely John's responsibility, whereas John argues that the trial judge correctly divided the obligation between them.

There are two parts to this issue. The first is that the couple's tax returns for 2005 were not timely filed. The second is that they did not have sufficient funds to pay the total taxes due. We have concluded that these issues need to be addressed separately.

It appears from the record that John was the spouse responsible for preparing and filing the tax returns. He did not do so in a timely manner for 2005 because he had given the original documents to one of Nannette's experts without retaining copies. The proceeds from the sale of the South Carolina property, which was primarily responsible for the capital gain, were escrowed and eventually depleted. One of the expenditures that led to their depletion was the transfer of $180,000 to Nannette for her purchase of another residence in South Carolina. The remaining funds were apparently spent on litigation expenses and other costs that were either agreed upon by the parties or approved by the trial judge.

In his analysis of the issue, the trial judge placed primary reliance on the facts (1) that Nannette enjoyed the use of the South Carolina property before it was sold and (2) then received a portion of the proceeds to purchase another vacation home. That reasoning clearly supports the judge's decision that Nannette should share equally in the payment of the interest related to late payment of the resulting capital gains taxes.

However, we do not perceive an equitable basis for requiring Nannette to share equally in the additional expenses caused by John's failure to file the tax returns on time. The judge has not articulated the nature of her responsibility for that oversight. We therefore conclude that the trial judge abused his discretion to the extent he made Nannette responsible for any penalties and interest related solely to the late filing of the return. We reverse that portion of the second supplemental judgment to that limited extent, but affirm as to the requirement that both parties share the payment of interest and penalties related to the late payment of the taxes.

D.

We now address the distribution of the proceeds from the anticipated sale of the marital residence. An appellate court reviews the trial court's decision on equitable distribution under an abuse of discretion standard. LaSala v. LaSala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). An appellate court should affirm an "equitable distribution as long as the trial court could reasonably have reached its result from the evidence presented, and the award is not distorted by legal or factual mistake." Ibid.

Any property a spouse owns at the time of marriage will remain separate property and in the event of divorce will be deemed an immune asset ineligible for distribution. Valentino v. Valentino, 309 N.J. Super. 334, 338 (App. Div. 1998). By the same token, "[a]ll property, regardless of its source, in which a spouse acquires an interest during the marriage shall be eligible for distribution in the event of divorce." Painter v. Painter, 65 N.J. 196, 217 (1974). "The burden of establishing immunity from distribution of a particular marital asset . . . rests upon the spouse who asserts it." Pacifico v. Pacifico, 190 N.J. 258, 269 (2007).

There can be no question that the marital residence was acquired during the marriage, which makes it a marital asset subject to equitable distribution. Nannette does not argue to the contrary. Rather, she makes an equitable argument that, because she contributed more funds realized from the sale of pre-marital assets than did John when the marital residence was first acquired, she should receive a greater share of the proceeds from the sale of that marital asset.

In deciding upon equitable distribution, N.J.S.A. 2A:34-23.1(c) and (i) require the trial judge to consider, among other factors, both "[t]he income or property brought to the marriage or civil union by each party" and "[t]he contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker." In doing so in this case, the trial judge concluded that John's significant contributions, derived from his income, to the improvements in the marital residence over a period of eighteen years counterbalanced Nannette's larger initial contribution at the time of purchase. That determination finds factual support in the record and is "reasonable." LaSala, supra, 335 N.J. Super. at 6. Consequently, we find no abuse of discretion by the trial judge and affirm that portion of the second supplemental judgment.

E.

With respect to the issue of ongoing responsibility for Nannette's health insurance, we note that the trial court denied relief, but did not state his reasons for doing so. Our review of the transcript of the settlement placed on the record on July 23, 2007, reveals that, although the amount of alimony had been agreed upon, there was no agreement on the issue of Nannette's health insurance and it was, consequently, reserved for trial. We cannot review a decision when we do not have the benefit of the trial judge's reasons for making it. Rosenberg v. Bunce, 214 N.J. Super. 300, 303 (App. Div. 1986). Consequently, that portion of the second supplemental judgment is reversed and the issue is remanded for decision.

F.

Nannette's motion for a new trial was based on two separate arguments: (1) the letter written by John to the retired Presbyterian minister in Florida and (2) the alleged improper assistance rendered by an attorney who had represented her prior to the marriage and who thereafter became a family friend and had attempted to assist the parties in reaching a settlement. John argues that the trial judge correctly determined that neither warranted the granting of a new trial.

Our scope of review of a family judge's decision to deny a new trial is narrow. "A motion for a new trial is addressed to the sound discretion of the trial court." Baumann v. Marinaro, 95 N.J. 380, 389 (1984); see also Crawn v. Campo, 136 N.J. 494, 510-12 (1994); Hill v. N.J. Dep't of Corr., 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). The grant or denial of a motion for a new trial should not be disturbed on appeal unless that discretion has been abused. Hill, supra, 342 N.J. Super. at 302; see also R. 2:10-1 (a court's ruling on a new trial motion shall not be reversed "unless it clearly appears that there was a miscarriage of justice under the law").

Although we agree that the trial judge ought to have held oral argument on the motion, see Rule 1:6-2(d) and Rule 5:5-4(a), we nevertheless see no basis for reversing the denial of Nannette's motion. It was not supported by sufficient factual material to warrant further investigation through discovery or a new trial. Indeed, as the trial court observed, there was not even a certification from Nannette herself setting forth information within her personal knowledge, but only a certification from counsel based upon hearsay. See R. 1:6-6.

With respect to the letter to the retired Presbyterian minister, Nannette has not denied the affair, although she has denied some of the particulars. The overall issue of the affair's impact on her earning capacity was raised during the trial. Nannette offered no factual support whatsoever for her suggestion that the letter to the retired Presbyterian minister in Florida led to the rejection of her application for employment as the director of religious education at a Roman Catholic parish in New Jersey.

With respect to the alleged involvement of the attorney in advising John, Nannette has not even alleged that the attorney was privy to specific types of confidential information or that any attorney-client confidences were given or breached. It appears that the purported draft affidavit attached as an exhibit to counsel's certification was not used, nor is there an assertion that it contained information obtained through a breach of confidence. If Nannette believes there was an ethical violation, she has every right to file a complaint with the appropriate district ethics committee pursuant to Rule 1:20-3. We see no factual or legal basis in the present record to redress improper conduct by the attorney, if in fact there was any, in the context of this action, even though the client involved is also an attorney. See Brundage v. Estate of Carambio, 195 N.J. 575, 602 (2008).

For those reasons, we affirm the denial of the motion for a new trial.

G.

The other issues raised by Nannette on appeal do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

A trial judge must exhibit at all times appropriate judicial demeanor, patience and understanding. In re Albano, 75 N.J. 509, 514 (1978). The judge must conduct the court proceedings in a fair and impartial manner. Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999) (citing Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971)). In addition to being impartial, the judge must also give the appearance of impartiality. See DeNike v. Cupo, 196 N.J. 502, 514-15 (2008); see also R. 1:12-1(f) (providing that a judge may not sit in any case if there is a reason that might preclude "a fair and unbiased hearing and judgment" or "reasonably lead counsel or the parties to believe so").

We are satisfied from our thorough review of the record that the trial judge handled this case in an impartial manner. We have determined that the judge's findings of fact and credibility determinations, although adverse to Nannette, were not the product of any animus towards her. In our judgment, the judge's factual findings and credibility determinations were properly based on the evidence and his evaluation of the witnesses who testified before him.

While it is true that the judge described Nannette's conduct at one point during the trial as "an uninhibited, uncontrolled emotional outburst that comprised rage, fury, upset, emotional upset," we note that, at the time the settlement was placed on the record on July 23, 2007, her own attorney described her as having been "pretty emotional" during the settlement negotiations. We conclude that the judge's required recusal from further proceedings on remand is not warranted. We note that the judge has been rotated out of the Family Part, and leave it to his discretion, see Graziano v. Grant, 326 N.J. Super. 328, 349-50 (App. Div. 1999), whether he or another judge handle the matter on remand.

III.

 
In summary, we affirm the trial judge's decisions with respect to (1) Nannette's involuntary removal from the marital residence at the time of the divorce; (2) responsibility for interest and penalties related to the delinquent payment of the taxes resulting from the sale of the residence in South Carolina; (3) equitable distribution with respect to the marital residence; (4) denial of Nannette's motion for reconsideration; and (5) denial of Nannette's motion for a new trial. We reverse and remand for further proceedings consistent with this opinion as to (1) the amount of interim support given to Nannette between her removal and the sale of the marital residence; (2) responsibility for interest and penalties related to the late filing of the 2005 tax returns; and (3) responsibility for Nannette's health insurance. Finally, we have not considered two issues: (1) the income imputed to Nannette in the event there is a need for child support; and (2) the lien for counsel fees imposed on Nannette's share of equitable distribution. The issue of what judge handles the matter on remand is left to the discretion of the trial judge. We do not retain jurisdiction.

Affirmed in part; reversed in part and remanded.

Because the parties share the same last name, we refer to them by their first names for the sake of convenience.

Nannette sought a stay of the order requiring her to vacate the marital residence. We denied a stay, as did the Supreme Court. Nannette subsequently moved out of the marital residence. On appeal, she seeks the right to move back to the residence until it is sold.

We are cognizant of the fact that the trial judge at one point denied John's post-judgment request for an order to show cause requiring Nannette to vacate the premises immediately, noting that there would be no irreparable harm to their son if her move was not immediate. We nevertheless conclude that the record supports the judge's overall conclusion that there was clear potential for harm to the son if the parties continued to reside together indefinitely.

(continued)

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4

A-1930-07T1

March 18, 2010