LINDA J. JURGENS v. WILLIAM C. JURGENS JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0945-10T4

LINDA J. JURGENS n/k/a JOHANNEMANN,

Plaintiff-Respondent,

v.

WILLIAM C. JURGENS, JR.,

Defendant-Appellant.

______________________________________

June 15, 2011

Submitted: May 25, 2011 - Decided:

Before Judges Axelrad, R. B. Coleman, and

J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-981-09.

William C. Jurgens, Jr., appellant pro se.

Linda J. Jurgens, respondent pro se.

PER CURIAM

In this matrimonial matter, defendant husband appeals from some portions of a final judgment of divorce entered by Judge Honora O'Brien Kilgallen following a thirteen-day trial. On appeal, husband challenges as error the judge's: (l) refusal to award him alimony; (2) ordering the sale of the marital home and adjoining land without giving him the opportunity to retain the property and directing a 50/50 distribution of the proceeds; and (3) failing to equitably distribute a pension other than the 40l(k) belonging to plaintiff wife that was vaguely referenced in the testimony. Based on our review of the record and applicable law, we are not persuaded by husband's arguments and affirm. Wife filed for divorce in January 2009, and husband filed an answer and counterclaim. Trial commenced in January 2010, and concluded in July 2010. On September l0, 2010, the court issued a lengthy written decision and entered a final judgment of divorce. This appeal ensued.

I.

The following facts and evidence are derived from the trial record. The parties met and began living together in 1995, and married on October 12, 1996. At the time of the marriage, wife was thirty-eight years old and husband was forty-five years old.

Wife, who was a high school graduate, worked for the Asbury Park Press in computer operations since l986. At the time of trial, she earned a gross salary of about $55,000 a year. Husband, who was a college graduate, worked as an independent computer consultant for the same newspaper for a number of years. He earned $170,000 in 1999, and $147,975 in 2000.

In 2000, the parties had twin girls, and shortly thereafter, husband quit his computer consulting business. There was differing testimony as to whether that decision was a mutual one, precipitated by his desire to be the primary caretaker for the girls, or was a way to obtain a reprieve from the stress of his job. In any event, husband became the primary caretaker for the parties' children.

In 2001, husband started a business called Kater to Kids that provided hot meals to day care centers. His business was not particularly lucrative, showing gross profits ranging from a high of $25,46l in 2003 to a $5512 loss in 2005. Husband closed the business in late 2007 due to health reasons. He has not worked since that time. His health problems began in 1998, with a myocardial infarction. In 2002, he was diagnosed with prostate cancer, and had a radical prostatectomy. Husband applied for Social Security Disability (SSD) benefits in 2007, and was denied. In June 2009, following an appeal, husband was found totally disabled by the Social Security Administration (SSA) due to "status post myocardial infarction; status post cardiac catherization with angioplasty and stenting; diabetes mellitus; diabetic peripheral neuropathy; and recurrent prostate cancer." The Administrative Law Judge (ALJ) found husband was unable to perform any past relevant work, his job skills did not transfer to other occupations, and considering his age, education, work experience and residual functional capacity, there were no jobs he could perform. Husband was awarded SSD payments of $1520 per month, plus $760 combined for the children. He was also awarded a retroactive SSD payment of $17,000 in July 2009, which, for the most part, he retained solely. During the trial, a new cancerous tumor was found in husband's bladder area, and he underwent high dosage radiation therapy. He described his cancer as "under control" but not curable. Husband testified he suffered from general body pain, weakness, lack of stamina, hot flashes and depression. Nevertheless, his oncologist opined in a May 19, 2010 letter that husband "should be able to return to normal activities" and wife claimed he still played golf. Wife expressed the belief that husband was capable of working, though she acknowledged the computer technology field had changed since 2001.

The parties lived in Cream Ridge in a home purchased by husband and a former girlfriend in 1994 for $377,500, with an 80% mortgage.1 Until 2000, husband paid the mortgage and wife paid for other joint household expenses. The parties stipulated that in 2001, husband used $120,000 of the proceeds of a sale of a pre-marital property to pay down the principal balance of the mortgage. In 2002, the parties refinanced the property with an $185,000 mortgage and wife's name was substituted on the deed for that of the former girlfriend. They refinanced again in 2004, taking a mortgage of $250,000, using the excess funds to pay some bills. The mortgage balance at the time of trial was $229,000.

In 1998, the parties bought land adjacent to the marital home for $310,000, titled in joint names. The 20% down payment came from a portion of husband's personal injury settlement, and the parties mortgaged the remainder. In 2001, the property was subdivided into a ten-acre lot ("the farm") and a parcel with a rental house. The rental lot was sold in 2006 for a significant profit, and the parties satisfied the existing mortgage on the farm and used the excess for a variety of marital expenses.

Wife also owned a home prior to the marriage, which she rented after her marriage, covering the mortgage. She sold it in l998, and used the $31,500 proceeds for marital expenses. Wife also had a pre-marital IRA worth $11,229 that she cashed in to pay family expenses. Husband did the same with his $20,238 Self Employment Pension around 2004. Wife reported she had a 40lk retirement plan through work with matching contributions. She also testified that after filing her case information statement (CIS), she learned her employer had contributed to a pension plan on her behalf for a period of time, under which she was entitled to a monthly allotment upon retirement.

Apparently, a court order was signed on September 11, 2009, compelling the parties to list the marital home and farm for sale.2 Husband, however, refused to sign the listing agreement and moved to resume residence in the marital home, asserting his intention to buy it. His plan was to sell the farm as a separate parcel; wife testified her realtor recommended the parcels be listed for sale as a package. Husband never made an offer on the property nor produced a mortgage commitment to pay off the outstanding mortgage balance. Accordingly, the judge ordered the sale of both parcels during the pendency of the trial. They received a sales price of $475,000, and netted $209,000. After paying mutually agreed upon disbursements, $175,242 was held in escrow for equitable distribution.

II.

We recite only those portions of the final judgment pertinent to this appeal. By prior consent order, the parties had agreed to joint legal custody with wife designated as the primary custodial parent, which arrangement was continued by the court. Considering husband was unemployed and collecting SSD benefits and the children each received a derivative benefit of $380 per month, the court did not order husband to pay child support or contribute to work-related child care expenses. Judge Kilgallen declined husband's request for alimony in the amount of $950 per month, concluding alimony was not warranted for either party. She directed equitable distribution of the net proceeds from the sale of the marital home and adjoining farm on an equal basis. She also directed the coverture portion of wife's 40l(k), which she found to be the "only retirement fund in this case," to be equally divided by way of a Qualified Domestic Relations Order (QDRO).

Husband first argues his request for alimony should have been granted. He maintains that because the ALJ found he was permanently disabled and unable to work, the Family Part judge should have been precluded from finding he was able to earn income from work and denying him alimony on that basis.

To vacate a trial court's alimony ruling, an appellate court must conclude the trial court clearly abused its discretion or failed to consider all of the controlling legal principles, or it must otherwise be well satisfied the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole. Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993). Moreover, substantial weight must be given to the judge's observations of the parties' demeanor, comprehension and speech, and to the fact the trial judge had the distinct advantage of observing the demeanor of the witnesses and a better opportunity to judge their credibility than a reviewing court. Ibid. This is particularly so with Family Part judges based on their expertise in this specialized field. Cesare v. Cesare, 154 N.J. 394, 412 (1997). We discern no such abuse of discretion or legal error in the present case.

As Judge Kilgallen explained in her comprehensive written opinion, courts may award one or more of the following types of alimony: permanent alimony, rehabilitative alimony, limited duration alimony or reimbursement alimony. N.J.S.A. 2A:34-23(b). The purpose of alimony is the continuation of the standard of living enjoyed by the parties prior to their separation. Innes v. Innes, 117 N.J. 496, 503 (1990). The supporting spouse's obligation is set at a level that will maintain that standard. Ibid.

The judge detailed the following requisite statutory factors for an alimony determination and explained each in the context of the trial testimony and evidence:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational level, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and

(13) Any other factors which the court may deem relevant.

[N.J.S.A. 2A:34-23(b).]

Where there is a request for an award of permanent alimony:

the court shall consider and make specific findings on the evidence about the above factors. If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor. The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement. In so doing, the court shall consider and make specific findings on the evidence about factors set forth above. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded.

[N.J.S.A. 2A:34-23(c).]

Rehabilitative alimony "shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur." N.J.S.A. 2A:34-23(d). It permits a short-term award to enable the former spouse to complete the preparation necessary for economic self-sufficiency, and it ceases when the dependant spouse is in a position of self-support. Cox v. Cox, 335 N.J. Super. 465, 474-75 (App. Div. 2000). "Rehabilitative alimony thus represents an appropriate remedy where, for example, 'a spouse who gave up or postponed her own education to support the household requires a lump sum or a short-term award to achieve economic self-sufficiency.'" Id. at 475 (quoting Mahoney v. Mahoney, 91 N.J. 488, 504 (1982)). Its purpose is to "enhance and improve the earning capacity of the economically dependant spouse." Cox, supra, 335 N.J. Super. at 475 (internal quotation marks omitted). "The focus of rehabilitative alimony is upon the ability of a dependant spouse to engage in gainful employment, combined with the length of the marriage, the age of the parties, and the spouse's ability to regain a place in the workplace." Ibid.

Limited duration alimony is more closely related to permanent alimony than to rehabilitative alimony. Id. at 479. In rehabilitative alimony, once the purpose is achieved, entitlement to that form of alimony ends. Ibid. However, permanent and limited duration alimony "reflect the important policy of recognizing that marriage is an adaptive economic and social partnership, and an award of either validates that principle." Ibid. Limited duration alimony recognizes that in certain situations a permanent alimony order or no alimony at all works an injustice; thus the flexibility of limited duration alimony. Id. at 480. In determining the length of the term for limited duration alimony, the court "shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate." N.J.S.A. 2A:34-23(c). However, limited duration alimony is inappropriate in cases when the marriage is "long." Cox, supra, 335 N.J. Super. at 482.

The judge noted this was a twelve-year marriage. She found each party to be "modestly circumstanced" and both in need of alimony; however, considering wife only earned $55,000 a year and was subject to furloughs and husband collected $1520 a month in SSD benefits, the judge concluded "neither party has an ability to pay." Fifty-two-year-old wife appeared to be in good physical and emotional health, and the judge found her to be "extremely honest and credible." Husband, who was sixty-two years old, received SSD benefits "as a result of a cancer diagnosis" that was "now in remission." The judge found he appeared "healthy and well nourished." He also presented as "extremely volatile, emotional and quick to anger[,]" took "no responsibility for his own behavior[,]" and was "extremely angry" at wife's decision to end the marriage.

As to the fourth through sixth factors, the judge found the parties lived a middle class lifestyle until husband voluntarily left his computer consulting job in 200l, having averaged about $150,000 a year. Afterwards, the "parties struggled to have sufficient income to maintain their lifestyle." The judge also found wife worked throughout the marriage as "a matter of necessity" for the health insurance benefits and earned modest income compared with her college-educated husband. The judge noted husband was collecting SSD benefits, but his cancer was in remission and he soon would be able to collect Social Security benefits, and concluded he had the ability to earn income "based upon his knowledge and training and based upon his improved health condition." Though husband had not been employed in the computer field for about a decade, the judge was confident it would not take long or be too expensive or time-consuming for him to obtain the training necessary to return to the job market.

As to the seventh factor, wife had rental housing expenses for her and the children. Based on husband's current unemployment and disability status, she would be solely responsible for maintaining health insurance for the children and paying work-related child care expenses for the ten-year- old twins, and fifty percent responsible for their unreimbursed health-related expenses. The judge expressly found these facts "significant" to her determination not to require wife to pay husband alimony. Other "significant factors" in the ruling were that wife did not receive a share of husband's $17,000 retroactive SSD award and husband removed $6500 from joint funds after wife declared her intent to divorce. In considering the income available to the parties through investment of assets, the judge noted each party would have over $87,000 in cash from the escrowed proceeds of the marital home and farm, and an interest in wife's 40l(k) retirement plan.

Given the judge's finding husband was "an intelligent and articulate person" who could "re-enter the job market with minimal training," the length of the marriage, and the facts of the case, the judge "would have, at a maximum, ordered the Wife to pay the Husband only limited duration alimony or rehabilitative alimony." After reviewing the purposes of limited duration alimony and rehabilitative alimony, the judge refused to award either, relying on the previously noted facts and that wife was responsible for her own credit card debt and had to pay $38,000 in counsel fees, and husband had voluntarily left his job where he earned substantially more than wife and would otherwise have had an obligation to pay alimony to her.

Husband's primary contention on appeal is that the SSA's disability determination should have been granted res judicata effect, and thus the Family Part judge should not have considered husband's ability to work in her alimony analysis.

"A party asserting inability to work due to disability bears the burden of proving the disability." Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). "Ordinarily, then, that party must produce evidence to carry that burden." Ibid. An SSA adjudication of disability constitutes a prima facie showing a person is disabled, and therefore unable to be gainfully employed, and the burden shifts to the party disputing the disability to refute that presumption. Id. at 342-43. Husband's argument, therefore, that the SSD award should be given res judicata effect is incorrect.

The SSD award was prima facie proof of husband's disability, and the burden then shifted to wife to refute the presumption husband was unable to work. Husband does not argue wife failed to refute the presumption. It is not our duty to make an argument for a party, and thus we need not address this issue further. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977).

As neither party's CIS is contained in our appendix, we cannot scrutinize the parties' expenses. However, we are satisfied the judge adequately considered and explained the statutory factors, particularly that the parties struggled to maintain their modest lifestyle after husband voluntarily left his computer consulting job in 200l, and based on her $55,000 per year salary and obligations pertaining to the children, wife cannot afford to pay alimony. Accordingly, weighing the facts and equities, the judge appropriately concluded, within her discretion, that an alimony award was not merited. As the ruling is amply supported by the credible evidence adduced at trial, we discern no basis upon which to second-guess it.

Husband next asserts error by the court in ordering the pre-judgment sale of the marital home and farm as one parcel, and in not allowing him to make a counter-offer on the properties. Although he acknowledges Randazzo v. Randazzo, 184 N.J. 101 (2005) permits a judge to order the sale of marital property prior to the final judgment of divorce if the circumstances warrant, he maintains there was no need to do so in this case.

Because of financial and lifestyle decisions the parties made during their marriage, they were in poor financial condition at the time the judge ordered the sale. The mortgage on the house constantly slipped into arrears and credit card debt continued to accrue. The parties had no other liquid assets that could be used for husband to buy out wife's interest in the properties. While husband understandably wanted to return to the marital home, it was financially unrealistic, which he apparently recognized as he did not obtain a mortgage commitment or present an offer to wife. Given the financial circumstances of the parties, the judge did not abuse her discretion in ordering the sale of the properties prior to the final adjudication of the issues.

Moreover, even if husband had a legitimate argument that it was unnecessary to sell the properties, or that they should not have been sold together, we can grant no effective relief, as the sale has already been completed. Accordingly, the issue is moot. See Cinque v. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993).

We also reject husband's challenge to the equal distribution of the proceeds. Husband had argued to the trial judge, and renews his argument on appeal, that he was entitled to a greater share of the proceeds because the properties were purchased with his pre-marital funds and exempt personal injury settlement funds, and he contributed far more to the mortgages and maintenance of the properties than did wife.

In addressing husband's argument, the judge gave an extensive account of each party's contributions to the marital home, farm, and expenses and concluded that because "both parties contributed and comingled pre-marital and/or exempt assets during the marriage," they should equally divide the net closing proceeds from the sale of the marital residence and the farm.

When reviewing a challenge to the trial court's distribution of property, the appellate court "must decide whether the trial court mistakenly exercised its broad authority to divide the parties' property or whether the result reached was bottomed on a misconception of law or findings of fact that are contrary to the evidence." Genovese v. Genovese, 392 N.J. Super. 215, 223 (App. Div. 2007).

Under N.J.S.A. 2A:34-23(h), upon divorce, a court may provide for the equitable distribution of property that was legally and beneficially acquired by the parties during the marriage. "However, all such property . . . legally or beneficially acquired during the marriage . . . by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts . . . shall be subject to equitable distribution." Ibid.

Husband claims that because he contributed more money to the purchase and mortgages of the properties than did wife, he was entitled to a greater share. "[The] premise that the assets should be divided solely in proportion to the financial contribution of each party during the marriage is clearly incorrect." Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978). "[E]ach party to a marriage presumably contributes to the enterprise that produces an accumulation of property." Ibid. "Although the acquisition of property may be traced more directly to one partner than another, the distribution should reflect non-pecuniary as well as pecuniary contributions to the marriage." Ibid. There is no doubt both parties contributed, financially and otherwise, to the joint enterprise that was their marriage for twelve years.

We turn now to husband's argument that because he purchased the home prior to the marriage, solely with pre-marital funds, he was entitled to a far greater percentage of its distribution than wife. The Supreme Court explained in Painter v. Painter, 65 N.J. 196 (1974):

Clearly any property owned by a husband or wife at the time of marriage will remain the separate property of such spouse and in the event of divorce will not qualify as an asset eligible for distribution. . . . Furthermore the income or other usufruct derived from such property, as well as any asset for which the original property may be exchanged or into which it, or the proceeds of its sale, may be traceable shall similarly be considered the separate property of the particular spouse. The burden of establishing such immunity as to any particular asset will rest upon the spouse who asserts it.

[Id. at 214.]

The judge based her decision on the seemingly equitable theory that both parties contributed pre-marital and exempt assets to the marital enterprise, effectively "commingling" their assets, and thus the home should be equitably distributed. Moreover, husband gifted the house to wife. "Interspousal gifts" are subject to equitable distribution under N.J.S.A. 2A:34-23(h). See also Pascale v. Pascale, 274 N.J. Super. 429, 434 (App. Div. 1994), aff'd in part, rev'd in part, 140 N.J. 583 (1995). Courts have consistently held that when a party executes a deed during the marriage relinquishing sole ownership of pre-marital property and gives the spouse an interest in the property as a tenancy by the entirety, all of the elements of a gift are met, and the property is therefore subject to equitable distribution. Pascarella v. Pascarella, 165 N.J. Super. 558, 564 (App. Div. 1979); Canova v. Canova, 146 N.J. Super. 58, 61-62 (Ch. Div. 1976). Here, husband purchased the property prior to the marriage and paid down the mortgage during the marriage with funds obtained from a pre-marital sale; however, in 2002, they refinanced the mortgage and he put wife's name on the deed. His donative intent was explicit in the execution of the deed of conveyance. Canova, supra, 146 N.J. Super. at 61. Moreover, the proceeds wife obtained for the sale of her pre-marital home were used for family expenses. Thus, the house was subject to equitable distribution and, within the judge's broad discretion, the proceeds of the real estate sale were divided evenly between the parties.

Husband also contends the farm property was exempt from equitable distribution because the source of the $60,000 down payment was an exempt personal injury settlement he received. The judge did not address the farm property apart from the home. However, although husband is correct that a personal injury settlement for pain and suffering is exempt from equitable distribution, Landwehr v. Landwehr, 111 N.J. 491, 493 (1988), the parties bought the farm property in 1998, during the marriage, and the deed was in joint names. Under those circumstances, husband's intent to gift the settlement funds and resulting farm purchase to wife were clear, see Ryan v. Ryan, 283 N.J. Super. 21, 24-25 (Ch. Div. 1993), and thus the farm property was subject to equitable distribution. As further indication of this intent, when the parties subdivided the property and sold a portion of it in 2006, they used the net profit toward joint marital goals, such as buying a car, renovating their kitchen and erecting a barn.

In his final point, husband argues that despite his request for equitable distribution of wife's pension fund, the judge "ignored" his request, and therefore he seeks a remand for consideration. At trial, wife made a vague and fleeting comment about a prior retirement plan funded by her employer; however, there was no further information developed about the dates it was in effect, when it was discontinued, and whether wife actually had vested rights in the plan. Accordingly, the judge concluded wife's 40l(k) was the only pension plan in existence and subject to equitable distribution, and she gave husband an appropriate interest by QDRO.

On appeal, husband provides no further specifics about the purported pension plan. He could have inquired of wife or served a subpoena on her employer requesting production of the document, and if he determined wife had another pension plan that would be subject to equitable distribution, he could have moved for reconsideration of the issue. He did not do so. Nor did he provide sufficient information of the asset to justify a remand.

Affirmed.

1 The girlfriend did not contribute to the purchase price, but was on the deed and obligated on the mortgage.

2 We glean this history from the trial transcript.