PATRICIA LENOWITZ v. MARK LENOWITZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0392-11T1

PATRICIA LENOWITZ,

Plaintiff-Appellant/

Cross-Respondent,

v.

MARK LENOWITZ,

Defendant-Respondent/

Cross-Appellant.

________________________________

November 29, 2012

 

Submitted November 15, 2012 - Decided

 

Before Judges Axelrad, Sapp-Peterson and Haas.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-871-08.

 

Einhorn, Harris, Ascher, Barbarito &
Frost, attorneys for appellant/cross-respondent (Bonnie C. Frost and Matheu D. Nunn, on the briefs).

 

Lesnevich & Marzano-Lesnevich, L.L.C., attorneys for respondent/cross-appellant (Madeline Marzano-Lesnevich, of counsel; Seth Parker and Joseph DiPiazza, on the briefs).

PER CURIAM

Plaintiff Patricia Lenowitz appeals, and defendant Mark Lenowitz cross-appeals, from certain provisions of an August 8, 2011 post-judgment order addressing alimony, child support, equitable distribution and other issues. We affirm, substantially for the reasons set forth in the written opinion of Judge James Guida, dated August 8, 2011.

I.

The facts and procedural history of this case are discussed in detail in the trial judge's opinion and need not be fully repeated here. The parties were married on February 14, 1994. They have two sons.

During the marriage, defendant provided the primary financial support for the family, earning substantial income as a financial trader. Between late 1995 and January 2002, he worked as an equity trader at Chelsea Capital and his income grew from $240,000 to $4 million per year. He lost his job in 2002, when "Chelsea Capital closed its doors." Defendant then started a hedge fund, which was not successful. He continued to trade, using family assets, and posted losses in 2004, 2005 and 2006.

Prior to the marriage, plaintiff worked in the finance department of a car dealership and as an executive assistant at a publishing company. During the marriage, she was employed for a time at a daycare center. Thereafter, she cared for the children.

On March 1, 2007, defendant was arrested and charged under federal law with securities fraud and insider trading, based upon his employment at Chelsea Capital. He pled guilty in July 2007, but his sentencing was postponed.

On October 12, 2007, plaintiff filed her complaint for divorce and the parties separated in December 2007. Pursuant to a December 15, 2008 consent order, the parties acknowledged that defendant had already paid plaintiff $45,000 as an advance on equitable distribution and he agreed to pay her $22,500 on March 1, 2009 in return for her promise not to seek alimony or child support prior to May 31, 2009.

The parties negotiated a property settlement agreement (PSA), which was incorporated into their December 15, 2008 Final Judgment of Divorce. Defendant had been unemployed since the time of his arrest and sentencing was still pending. Accordingly, the parties agreed not to address issues of alimony and child support until after the criminal charges were finally resolved.

The parties agreed to share joint legal custody of their children, with plaintiff acting as the parent of primary residence. With the assistance of a parent coordinator, they agreed the children would spend six out of every fourteen days with defendant. Although Judge Guida thereafter handled several post-judgment motions regarding parenting time, this provision of the PSA remained unchanged.

Under the PSA, the former marital home was to be sold and the net proceeds divided equally. Defendant continued to live in the home. Plaintiff used her equitable distribution advance to purchase a home for $790,000, after borrowing money from a friend to secure the balance of the purchase price. The remaining marital assets were divided in accordance with the PSA, with defendant "crediting back" over $300,000 to plaintiff for the monies he forfeited to the federal government after his conviction for insider trading. In total, plaintiff received in excess of $1 million in money and assets in equitable distribution.

The PSA directed the parties to divide their personal property, either by "amicably agree[ing]" on the distribution or by taking turns selecting items they wanted "from an agreed upon list." The division of property was to have been completed by January 15, 2009.

A series of post-judgment applications on support issues were filed by the parties and Judge Guida entered orders resolving them. On August 14, 2009, the trial judge ordered defendant to pay plaintiff $37,500 in lieu of alimony or child support for the period between June 1, 2009 and October 31, 2009. A July 12, 2010 order required defendant to pay plaintiff $288 per week in pendente lite alimony and $95 per week in child support, effective February 1, 2010. In total, plaintiff received $120,000 in unallocated support.

Eventually, defendant was sentenced to three years probation, conditioned upon six months of house arrest. As the result of his conviction, defendant "is barred from trading in securities, except for his own personal funds."

Because defendant had been sentenced, the postponed issues of alimony and child support could now be resolved. Judge Guida conducted a plenary hearing on five, non-consecutive dates between February 14, 2011 and April 27, 2011. At the conclusion of the hearing, the judge issued a twenty-five page written opinion.

Based upon the parties' testimony, and that of defendant's vocational expert, Dr. Charles Kincaid, the judge imputed $85,000 in annual income to defendant and $30,000 to plaintiff. After considering all of the statutory alimony factors, as required by N.J.S.A. 23:34-23(b), the judge granted plaintiff $385 per week in permanent alimony. He calculated child support under the Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules 2012, Appendix IX-A (the Guidelines), which resulted in plaintiff being granted $110 per week in child support. The judge found there should be no further division of the parties' personal property and he required plaintiff to pay $5,000 toward defendant's counsel fees.

II.

On appeal, plaintiff has raised the following points for our consideration:

POINT ONE

 

THE TRIAL COURT FAILED TO ENFORCE THE PLAIN LANGUAGE OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT.

 

A. THE TRIAL COURT FAILED TO ENFORCE THE PARTIES' PROPERTY SETTLEMENT AGREEMENT, WHICH REQUIRED DEFENDANT TO SELL THE MARITAL RESIDENCE.

 

B. THE TRIAL COURT FAILED TO ENTER AN ORDER PERMITTING PLAINTIFF TO OBTAIN PERSONAL PROPERTY FROM THE MARITAL RESIDENCE, WHICH IS SUBJECT TO EQUITABLE DISTRIBUTION.

 

POINT TWO

 

THE TRIAL COURT'S ALIMONY AND CHILD SUPPORT AWARDS ARE INCORRECT BECAUSE THE COURT ERRONEOUSLY IMPUTED INCOME TO PLAINTIFF, SET IMPUTED LEVELS OF INCOME TO DEFENDANT AT UNREASONABLY LOW LEVELS, FAILED TO CONSIDER AFTER-SCHOOL CHILD COSTS PLAINTIFF WOULD HAVE TO INCUR TO WORK, DID NOT ADDRESS PARENTING TIME ISSUES THAT WOULD INCREASE CHILD SUPPORT AND ALIMONY, AND FAILED TO AWARD PLAINTIFF SUPPORT IN ARREARS.

 

A. THE IMPUTED LEVELS OF INCOME TO BOTH PLAINTIFF AND DEFENDANT ARE INCORRECT AND THEREFORE SKEWED BOTH THE ALIMONY AND CHILD SUPPORT AWARDS.

 

B. THE TRIAL COURT IGNORED PROOFS THAT ESTABLISHED DFENDANT STILL MAINTAINS THE MARITAL LIFESTYLE WHILE BEING UNEMPLOYED.

 

C. THE TRIAL COURT FAILED TO DEDUCT OR CONSIDER CHILD-CARE COSTS FROM IMPUTED INCOME TO PLAINTIFF.

 

D. THE TRIAL COURT ERRED BY FAILING TO ADDRESS PARENTING TIME ISSUES DURING THE HEARING, WHICH IMPACTED BOTH THE ALIMONY AND CHILD SUPPORT AWARD[S].

 

E. THE TRIAL COURT ERRED BY FAILING TO AWARD PLAINTIFF SUPPORT IN ARREARS FOR THE PERIOD OF OCTOBER 2 009 TO FEBRUARY 1, 2012 [SIC].

 

POINT THREE

 

BOTH THE COUNSEL FEE AWARD IN FAVOR OF DEFENDANT AND THE COURT'S FAILURE TO ACCOMMODATE PLAINTIFF'S REQUESTS UNDER THE ADA WERE IN ERROR.

 

A. THE AWARD OF COUNSEL FEES TO DEFENDANT SHOULD BE REVERSED.

 

B. THE TRIAL COURT FAILED TO HONOR EACH OF PLAINTIFF'S REASONABLE REQUESTS FOR ACCOMMODATIONS.

 

In his cross-appeal, defendant has raised the following contentions:

POINT I

 

THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING PLAINTIFF PERMANENT ALIMONY.

 

POINT II

 

THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO INCLUDE THE LUMP SUM PAYMENTS MADE TO PLAINTIFF IN ITS ALIMONY DETERMINATION, THEREBY ESSENTIALLY AWARDING PLAINTIFF BOTH REHABILITATIVE AND PERMANENT ALILMONY.

 

POINT III

 

THE TRIAL COURT ABUSED ITS DISCRETION BECAUSE IT 1) FAILED TO CONSIDER ALL REVLEVANT FACTORS IMPACTING THE PARTIES' ABILITY AND LIKELIHOOD [OF] EARNING AT LEVELS IMPUTED AND 2) ERRONEOUSLY IMPUTED INCOME TO THE PARTIES BASED ON FINDINGS NOT REASONABLY SUPPORTED BY THE RECORD.

 

POINT IV

 

THE TRIAL COURT DID NOT ERR IN ITS DECISION REGARDING THE PARTIES' MARITAL LIFESTYLE.

 

POINT V

 

THE TRIAL COURT DID NOT FAIL TO DEDUCT OR CONSIDER CHILD-CARE COSTS FROM IMPUTED INCOME TO PLAINTIFF.

 

POINT VI

 

PURSUANT TO THE PARTIES' PSA AND PARENTING AGREEMENT, THE TRIAL COURT PROPERLY DETERMINED THAT THE PARTIES EXERCISE A SHARED PARENTING ARRANGEMENT AS IT RELATES TO CHILD SUPPORT.

 

POINT VII

 

THE TRIAL COURT DID NOT FAIL TO AWARD PLIANTIFF SUPPORT IN ARREARS FOR THE PERIOD OF NOVEMBER 1, 2 009 TO FEBRUARY 1, 2010.

 

 

POINT VII

 

THE TRIAL COURT DID NOT FAIL TO ENFORCE THE PLAIN LANGUAGE OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT.

 

A. THE TRIAL COURT DID NOT FAIL TO ENTER AN ORDER REQUIRING DEFENDANT TO SELL THE MARITAL RESIDENCE.

 

B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING PLAINTIFF'S CLAIM FOR A DIVISION OF PERSONAL ITEMS AND CORRECTLY DETERMINED THAT THE PARTIES SHOULD BE LEFT TO THEIR "CURRENT SITUATION" REGARDING PERSONAL PROPERTY FROM THE MARRIAGE.

 

POINT IX

 

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REJECTING DR. HUFFER'S OPINION AND RECOMMENDATIONS AND HONORED SEVERAL OF PLAINTIFF'S REASONABLE REQUESTS FOR ACCOMMODATIONS UNDER [THE] ADA.

 

POINT X

 

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN AWARDING COUNSEL FEES TO DEFENDANT.

 

After reviewing the record, including the entire trial transcript, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

We review the trial judge's determinations for abuse of discretion. See Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993); Perkins v. Perkins, 159 N.J. Super. 243, 247-48 (App. Div. 1978). We will not disturb the trial judge's decision so long as it is consistent with applicable law. Cesare v. Cesare, 154 N.J. 381, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We owe particular deference to the trial judge's credibility determinations and to the Family Part's expertise in addressing matrimonial issues. Cesare, supra, 154 N.J. at 412.

We begin with plaintiff's argument that the trial judge refused to honor her "reasonable requests for accommodations" under the Americans With Disabilities (ADA) Act, 42 U.S.C.A. 12101-12213 (1990). Simply stated, the record does not support this contention.

Plaintiff represented herself at the plenary hearing. On the first day of trial, she presented the judge and defendant's attorney with a written report from a Nevada-based psychologist, whom she had never seen. Based solely upon statements and documents plaintiff had provided her, the psychologist opined that plaintiff was suffering from "Post Traumatic Stress Disorder (PTSD) due to domestic violence from [defendant], and the legal system's failure to protect her and children from domestic violence." The psychologist requested that plaintiff be provided with "an ADA Access Coordinator[;]" frequent breaks in the trial occur; plaintiff receive daily transcripts; the trial day be scheduled to begin in the late morning; and plaintiff receive "'bailiff protection from her vehicle' to the courtroom."

The judge rejected the psychologist's recommendations because that individual had never examined plaintiff. Moreover, plaintiff had never previously raised any of these allegations. From his experience with this family, the judge found plaintiff was fully capable of "effectively representing herself and complying with court orders" and "showed no evidence of [the] symptoms set forth in the report."

Nevertheless, Judge Guida more than accommodated plaintiff's perceived concerns by holding the trial on non-consecutive days and by giving the parties frequent breaks during the proceedings. Each party was given a sound recording of the trial at the end of each day. The judge also arranged for a judicial law clerk, who was a licensed attorney, to sit with plaintiff on the first day of trial. Judge Guida had the opportunity to observe plaintiff during the trial. He found she "was focused during the plenary hearings, argued her legal positions lucidly, cross-examined [defendant], and presented her own case and witnesses with alacrity." We defer to Judge Guida's findings on this issue and commend him for his efforts to address plaintiff's concerns, even though her requests were not supported by the record.

Both parties contest the amount of income imputed to them by the judge and the resulting alimony and child support calculations. However, the determination of whether to impute income, and the amount imputed, lies within the discretion of the trial judge. Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). "A trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." Id. at 474-75.

In setting the parties' imputed incomes, Judge Guida relied upon the testimony of the parties tempered by his credibility determinations, defendant's vocational expert, and the documentary evidence. Contrary to plaintiff's contentions, defendant will never again be able to earn at the levels he had while he was working in the securities field, especially since the evidence demonstrates that his highest earnings were the result of his illegal activities. At the same time, he has education and skills that could reasonably be expected to permit him to earn $85,000 per year in the property management field. Therefore, we also reject defendant's argument that "too much" income was imputed to him.

Similarly, although plaintiff claims she has no hope of ever earning at the level imputed to her, she previously worked in a daycare facility and as an executive assistant. She obtained an associate's degree in 2008 and, at the time of trial, had become the owner and manager of a not-for-profit organization that set up workshops and lectures concerning parenting and domestic violence. While this venture had not yet turned a profit, plaintiff demonstrated, by founding and running the company, that she has marketable skills. Under these circumstances, there was ample evidence in the record to support Judge's Guida's imputation of $30,000 annual income to plaintiff, which she could earn either in her prior professions, as a pre-school teacher, or through the further development of her business. Since potential earning capacity, rather than actual income, is the determinative measure for support, Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999), we see no abuse of discretion in the judge imputing the incomes he did to the parties.

The judge considered all the statutory alimony factors, as required by N.J.S.A. 23:34-23(b). He did not abuse his discretion in setting defendant's alimony obligation at $385 per week or by awarding permanent alimony to plaintiff. This marriage lasted over thirteen years, during which plaintiff primarily cared for the children, rather than working outside the home. The judge's findings on each of the statutory criteria are fully supported by the record.

Contrary to both parties' arguments, the judge did not abuse his discretion by requiring defendant to pay plaintiff substantial sums of pendente lite support during the period leading up to the final resolution of alimony and child support. Defendant's contention, that plaintiff was granted both permanent and rehabilitative alimony, and plaintiff's contention, that she was entitled to receive additional pendente lite support, both lack merit. The evidence also fully supports the judge's finding that neither party is able to maintain the former marital lifestyle, which had been financed by monies defendant had obtained illegally.

Child support was properly calculated under the Guidelines. Because plaintiff presented no evidence that she had any child care costs, such costs could not be included in the calculation. There was no competent evidence in the record to support plaintiff's claim that defendant does not spend the number of overnights with the children as set forth in the PSA or that Judge Guida prevented her from raising this issue at trial.

The judge properly denied plaintiff's request that the parties divide their personal property or, in the alternative, she be paid for the value of such property. Under the PSA, the personal property remaining in the former marital home was to have been distributed by mid-January 2009. Thus, the judge concluded the parties had not "complied with the temporal terms of the PSA regarding division of personal items."

In addition, the judge rejected plaintiff's claim that she had not previously removed items of personal property because he found the claim was not credible. We defer to that credibility finding. The judge also determined the parties had not agreed to make an alternate distribution of their personal property and plaintiff provided no basis to enable the court to establish a value for any of the property she now claimed. We perceive no abuse of discretion in the judge's rulings on this issue.

Plaintiff never requested that defendant be required to sell the marital home. Therefore, her claim that the judge erred in not imposing such a requirement lacks merit. Plaintiff had previously filed a motion to have an attorney-in-fact appointed to sell the home and that motion was granted. A broker was then retained. At the time of trial, the home was actively being marketed. Under these circumstances, Judge Guida's finding that "[t]he marital premises has not been sold due to circumstances, including market forces[,]" is amply supported by the record.

Finally, there is no basis to disturb the judge's decision requiring plaintiff to pay $5,000 toward defendant's counsel fees. That award, of course, is discretionary, Williams v. Williams, 59 N.J. 229, 233 (1971), and the judge appropriately considered the factors enumerated in Rule 5:3-5(c).

In sum, and based on our limited standard of review, we find no basis to interfere with the decision of the trial judge. Judge Guida made detailed findings of fact, including credibility determinations which he cogently explained. His decision is supported by the trial evidence and is entirely consistent with applicable law.

Affirmed.