EILEEN M. PODLAS v. JAMES J. PODLAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3785-10T3

EILEEN M. PODLAS,

Plaintiff-Respondent,

v.

JAMES J. PODLAS,

Defendant-Appellant.

___________________________________

November 14, 2012

Argued March 28, 2012 - Decided

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1460-10.

James J. Podlas, appellant, argued the cause pro se.

John Paul Velez argued the cause for respondent (Forster & Arbore, attorneys; Mr. Velez, on the brief).

PER CURIAM

Husband appeals from various rulings in his matrimonial dissolution trial and the final judgment of divorce (FJOD) entered which, among other provisions, ordered that the parties share equally in husband's pension. We affirm.

The parties were married in 1970 and have three adult children. They separated in 2008. At the time of the trial in December 2010, husband was sixty-three years old and wife was sixty-one years old. Husband is an attorney employed by the Maryland Public Defender and earns approximately $68,744 annually. He has been practicing law since 1981 and, within two years of his admission to the bar, opened his own firm. His private practice was successful during the 1980s, but by the late 1990s, the parties developed financial problems, which ultimately forced them to sell their marital home and a vacation home. In early 1999, the parties filed a joint Chapter 7 bankruptcy petition. During their forty-year marriage, wife earned no more than $16,000 and, at the time of the trial, was living in the basement of her daughter's home1 in Short Hills, helping her daughter, a stay-at-home parent, with her daughter's three young children.

In addition to the financial problems the couple faced in the 1990s, husband also experienced significant heart problems that led to open heart surgery. In 2002, husband learned from his doctors that several of the heart bypasses were not functioning. In light of this information, the couple decided to semi-retire. Husband closed his law practice and the couple moved to Maryland. They erected a modular home and husband obtained his current employment as a public defender. The couple's financial problems continued and the couple mortgaged their Maryland home in order to satisfy the balance of their IRS obligations.

The couple had been experiencing marital problems for quite some time and, in early December 2008, wife returned to New Jersey and commenced living with her daughter, whose husband is a vice president at J.P. Morgan/Chase. All of wife's expenses have been assumed by her daughter and son-in-law.

The first case management conference was conducted on July 8, 2010 before Judge Thomas P. Zampino. Although both parties were directed to appear, wife failed to appear and failed to respond to her attorney's attempt to contact her. Wife's attorney learned from husband that wife was vacationing with her daughter and her daughter's family. The judge conducted the proceeding in her absence. However, her attorney was unable to answer any questions from the judge related to the year wife last worked and whether she had sufficient quarters to obtain social security. When wife's attorney told the judge that wife last worked at Head Start, husband interjected, "That's incorrect." The judge admonished husband not to interrupt. The judge then engaged in a colloquy with husband, learning he was sixty-two years of age. The judge commented that wife, who was almost sixty-one years of age, could take early social security in about a year, and based on the parties' income levels and length of marriage, husband would be obligated to pay her permanent alimony. He further noted that if and when husband retired, it would be a consideration as to whether that would constitute a change of circumstances. He asked husband several times whether he understood, and husband responded in the affirmative.

Judge Zampino also addressed equitable distribution. The judge advised husband that an antique vehicle purchased during the marriage and his pension from his current employer would be subject to equitable distribution.

The next case management conference occurred on November 4, 2010, but in the interim, husband had filed two motions, one seeking severance of his Tevis2 counterclaim and the other seeking Judge Zampino's recusal. The judge explained to husband it was unnecessary to file a motion to separate the Tevis claim because at the conclusion of the trial, if the Tevis claim is not resolved, then he would "give a [thirty-]day window . . . to file your complaint in the [C]ivil [D]ivision." Turning to the recusal motion, the judge inquired of husband the nature of the application. Husband advised the judge that the motion was based "on the procedures so far in this matter, particularly those at the first case management conference[.] I think that Your Honor has prejudged the issues here without hearing the evidence and is prejudiced in favor of the plaintiff." Judge Zampino denied the motion, stating he had no independent recollection of the earlier proceeding but he did not believe he had "drawn any conclusion[.]"

Prior to trial, on February 12, 2010, wife submitted a Case Information Statement (CIS) in which she listed her monthly expenses as totaling $275. Trial commenced on December 8, 2010. Over husband's objection, the judge permitted wife to testify about her monthly budget, which she testified was prepared with the assistance of her daughter. According to wife, her monthly budget was approximately $2000.

The judge also precluded husband, during wife's cross-examination, from eliciting testimony relative to her individual Chapter 7 bankruptcy petition filed in 2009. Husband claimed that in the petition, wife answered, "No," to the question whether she had any present or future interest in pensions, alimony, maintenance or support. Husband maintained this evidence was relevant to wife's claim for alimony and equitable distribution, which was contrary to what husband contended was their agreement, that wife would waive alimony and any claimed entitlement to husband's pension. Judge Zampino disagreed, noting that at the time wife filed her bankruptcy petition, there was, in fact, no pending action for alimony or equitable distribution.

The judge also refused to permit husband to introduce a series of documents wife authored that addressed her employability, education and skills, which was four years old, and which the judge found was too remote to be relevant. Husband pointed out that the document related to wife's educational background, and the judge questioned husband as to whether there was any evidence to dispute that wife had some college credits. Husband produced no such evidence, but pointed out that wife had been a licensed social worker, a certified domestic violence specialist, and had been a member of the executive board of the New Jersey Coalition for Battered Women. Notwithstanding wife's qualifications, husband was unable to produce any evidence that wife ever earned more than $16,000. The judge also precluded husband from presenting testimony from an employability expert because the expert never produced a written report.

Judge Zampino entered an FJOD that, among other items, ordered husband to pay wife $15,000 yearly in permanent alimony at $1250 per month. This appeal ensued.

On appeal, husband raises the following points for our consideration:

POINT I

THE TRIAL JUDGE ERRED IN HIS CONSIDERATION AND DENIAL OF DEFENDANT[']S MOTION FOR RECUSAL.

POINT II

THE TRIAL JUDGE ERRED IN ALLOWING PLAINTIFF TO TESTIFY AT TRIAL FROM A "MONTHLY BUDGET" DOCUMENT, PREPARED WITH THE ASSISTANCE OF OTHERS, AND NEVER PROVIDED TO DEFENDANT PRIOR TO TRIAL.

POINT III

THE TR[I]AL JUDGE ERRED IN NOT ALLOWING CONSIDERATION OF, OR CROSS[-]EXAMINATION OF THE PLAINTIFF ON THE SWORN STATEMENTS MADE BY HER IN THE JUNE 2009 BANKRUPTCY.

POINT IV

THE TRIAL JUDGE ERRED IN PROHIBITING THE DEFENDANT FROM CROSS[-]EXAMINING THE PLAINTIFF ON RESUMES, LETTERS AND OTHER DOCUMENTS (AUTHORED BY PLAINTIFF) REGARDING HER EDUCATION, WORK EXPERIENCE, AND QUALIFICATION FOR EMPLOYMENT.

POINT V

THE TRIAL JUDGE ERRED IN REFUSING TO ALLOW THE DEFENDANT TO PRESENT THE TESTIMONY OF A WITNESS AS TO THE EARNING CAPACITY OF PLAINTIFF IN FUNCTIONING AS A NANNY OR IN-HOME CHILD CAREGIVER.

POINT VI

IN MAKING ITS DETERMINATION ON THE ISSUE OF ALIMONY[,] THE COURT FAILED TO CONSIDER AND MAKE FACTUAL FINDINGS AS TO SEVERAL FACTORS REQUIRED UNDER N.J.S.A. 2A:34-23b.

We have considered the points raised in light of the record, briefs, arguments and governing legal principles, and we reject all of husband's contentions. We conclude that each of the trial rulings, which are subject to an abuse-of-discretion standard of review, do not reflect an abuse of the trial judge's discretion, and the judge properly considered all relevant factors in arriving at a fair determination of alimony. We note that husband does not specifically challenge the final determination of a $15,000 a year award of permanent alimony for this thirty-eight-year marriage as an abuse of discretion or erroneous as a matter of law. We affirm substantially for the reasons expressed by Judge Zampino in his December 17, 2010 written opinion. We make the following additional comments.

The scope of our review is limited. A trial court's findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "[A]n appellate court should not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (second alteration in original) (internal quotation marks omitted). Such deference is particularly appropriate when the evidence is mostly testimonial and involves questions of credibility. Ibid. "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Ibid. (alteration in original) (internal quotation marks omitted). Furthermore, "[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.

Applying those principles here, a trial court's decision granting or denying a recusal motion is committed to the trial judge's "sound discretion." State v. McCabe, 201 N.J. 34, 45 (2010) (citing Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001)). Moreover, a trial judge is not barred from hearing a case because he or she has "given his opinion . . . ." Hundred E. Credit Corp. v. EncSchuster Corp., 212 N.J. Super. 350, 358 (App. Div.), certif. denied, 107 N.J. 60 (1986) (citing R. 1:12-1). The judge's comments that this was a permanent alimony case did not reflect the judge's prejudgment. A major objective of a case management conference is to narrow the issues for resolution. See R. 5:5-7 (requiring courts following an initial case management conference to enter an initial case management order, which, among items, "narrows the issues in dispute, if possible"). Based upon what was presented to the court during the case management conference, we view the judge's comments as an attempt to narrow the issues, not prejudge the issues. Thus, there was no basis for Judge Zampino to grant the recusal motion.

Turning to the evidentiary rulings during the trial, "'[t]raditional rules of appellate review require substantial deference to a trial court's evidentiary rulings.'" Benevenga v. Digregorio, 325 N.J. Super. 27, 32, (App. Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)). Under N.J.R.E. 403, a trial court may exclude otherwise admissible evidence on the basis that it reflects "needless presentation of cumulative evidence[,]" which is our assessment of the excluded evidence husband sought to produce here.

Husband challenges the trial judge's findings from which he determined that wife was entitled to alimony. Specifically, husband urges the judge accepted wife's monthly budget testimony without any finding as to its reasonableness or necessity, and that those needs had previously been met. Moreover, husband urges the judge never made any findings regarding his ability to pay alimony, including the impact of his heart condition upon his ability to pay alimony.

Although wife testified that she required between $2000 and $2800 to maintain her monthly budget, Judge Zampino awarded $1250, thus not crediting all of her testimony in this regard. Husband was given a full opportunity to cross-examine wife regarding her allegedly inflated budget and sets forth no specific prejudice he experienced with wife's day-of-trial changed budgetary figures. As the judge noted, at the time wife filed her individual bankruptcy petition, there was no action pending for alimony or equitable distribution, as the divorce complaint was not filed until January 2010. Thus, her response, "None" to Question 17 in the petition, "Alimony, maintenance, support and property settlements to which debtor is or may be entitled[,]" was a truthful statement at the time. Consequently, permitting husband to explore this issue through the introduction of the bankruptcy petition was a "waste of time."

Husband urges that one of the most important issues before the judge was alimony and that he was prejudiced by the judge's refusal to permit him to introduce a series of documents wife authored that addressed her employability, education and skills. The document husband sought to introduce was four years old, which the judge found too remote to be relevant. We disagree. The judge's exclusion of documents related to wife's background did not constitute an abuse of discretion. Wife's educational background was not a genuinely-disputed issue, nor was there any dispute regarding her prior licensure as a social worker and her domestic violence certification. Additionally, it was also undisputed that notwithstanding wife's qualifications, she never earned more than $16,000 during any portion of the marriage. Thus, the proffered documents were unnecessary and cumulative to that which had already been established.

Husband urges that the testimony of the employability expert was highly relevant to several factors the judge is obliged to consider under N.J.S.A. 2A:34-2b. With regard to the judge's ruling precluding husband from producing his expert witness on the basis that husband failed to provide an expert report, we agree with husband that to the extent wife conducted no discovery, husband was under no duty to voluntarily provide an expert report. An expert's opinion rises no higher than the facts upon which it is based. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981); see also Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). Because husband presented no proof, beyond his bare allegation that wife was working as a nanny for her daughter and son-in-law, however, any error committed in precluding expert testimony was harmless. R. 2:10-2.

Finally, husband urges the trial judge failed to make factual findings as to several of the statutory factors courts are directed to consider in making alimony awards. Specifically, the judge failed to make any findings as to wife's need for alimony, the reasonableness of the claimed expenses, and how those needs have previously been met. Additionally, husband contends the judge failed to make particular findings as to his ability to pay alimony, given his own monthly budget, which was never challenged at trial.

We are satisfied wife's need for alimony was clearly demonstrated through the evidence presented at trial and adequately addressed in the judge's written decision. Wife testified that the projected cost of health insurance, because she would no longer be covered under husband's employer-provided insurance, would be approximately $987. She also estimated a monthly expense totaling $329 to lease a vehicle and pay for auto insurance. These two expenses together equal $1316 per month. The judge credited this testimony, and the reasonableness of health insurance and transportation is without dispute. The judge awarded $1250 and discounted the additional $1550 sought. Although the judge did not make specific findings regarding husband's ability to pay, implicit in the evidence is his ability to pay.

Wife had not worked outside the home during the marriage, and despite the family's financial straights, husband provided for himself, his wife and his children, first through his law practice and, following his semi-retirement, for himself and his wife, through his salary as a public defender. That his expenses listed in the CIS were unchallenged by wife does not mean the judge credited those expenses. Thus, while the judge's findings were lacking in detail, we are satisfied there is substantial credible evidence in the record demonstrating wife's need for alimony and husband's ability to set aside approximately one-quarter of his monthly income to address wife's need for continued support. The trial judge, having presided over the proceedings, had a unique "'feel of the case'" and greater ability to assess witness credibility and qualifications, N.J. Div. of Youth & Family Servs. v. D.M.B., 375 N.J. Super. 141, 144 (App. Div.), certif. denied, 183 N.J. 586 (2005) (citing Cesare, supra, 154 N.J. at 411-13), even if the written opinion lacked the requisite specificity we contemplate in a judge's statement of reasons. See R. 1:7-4.

This deferential approach is especially warranted in Family Part cases because of the judge's "special jurisdiction and expertise in family matters[.]" Cesare, supra, 154 N.J. at 413. The focus of the dispute here was credibility, not the judge's "evaluation of the underlying facts and the implications to be drawn therefrom[.]" In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (citations and internal quotation marks omitted). As such, the judgment entered based upon the record was not so wide of the mark that it warrants our interference to correct a manifest denial of justice. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 427 (2012) (slip op. at 14) (holding that "[s]o long as the record contains substantial and credible evidence to support the family court's decision [the appellate court] may not second guess its judgment").

1 She is the parties' daughter, but for ease of reference, we will use "her daughter" in this opinion.

2 Tevis v. Tevis, 79 N.J. 422 (1979).