IAN FERRIER v. BARBARA ANASTOS-FERRIER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4323-03T54323-03T5

IAN FERRIER,

Plaintiff-Respondent,

v.

BARBARA ANASTOS-FERRIER,

Defendant-Appellant.

 
 

Argued November 10, 2005 - Decided

Before Judges Conley, Weissbard and Winkelstein.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

FM-14-1316-01.

Vincent P. Celli argued the cause for appellant

(Celli & Schlossberg, attorneys; Mr. Celli and

Jodi Ann Argentino, on the brief).

William M. Laufer argued the cause for respondent

(Laufer, Knapp, Torzewski & Dalena, attorneys; Mr.

Laufer, of counsel; Jennifer L. McInerney and

Elisabeth L. Rowley, on the brief).

PER CURIAM

Defendant Barbara Anastos-Ferrier appeals from a final judgment of divorce resolving issues of equitable distribution and alimony between her and her former husband, plaintiff Ian Ferrier. We reverse and remand for a determination of monies due to defendant as a result of plaintiff's sale of certain stock options; otherwise, we affirm.

I

Plaintiff and defendant Barbara Anastos-Ferrier became romantically involved in 1990, when they were forty-eight and forty-one years old, respectively. At the time, plaintiff, an unlicensed physician who headed a healthcare consulting company known as Bogart Delafield Ferrier, Inc. (BDF), was a married father of six children (three from an earlier marriage), and defendant, who had a degree in physical therapy, was a married mother of two children. Both subsequently divorced their respective spouses, defendant in December 1992, plaintiff in June 1994. They continued their relationship while maintaining separate residences - plaintiff, an apartment, and defendant, a townhouse she bought using a $35,000 loan from plaintiff.

The parties became engaged on December 24, 1994. In May 1995, plaintiff purchased a piece of waterfront property in eastern Maryland for $265,000 on which they planned to build their dream home. They agreed that defendant would move to Maryland, while plaintiff continued to work in New Jersey during the week and travel to Maryland on the weekends. Defendant, who had worked as a physical therapist on a full-time basis for just three years in the 1970's and who had worked only on a sporadic, part-time basis thereafter, most recently between 1993 and 1995, planned on being a homemaker and caring for her then fifteen-year-old son. In October 1995, defendant began living in the 1000 square-foot guest cottage on the parties' property in Maryland to oversee the completion of the planned 6000 square-foot main house.

According to defendant, she and plaintiff agreed to be financial partners with respect to the construction of their new home, although she conceded that the eventual $1,000,000 mortgage on the property was in plaintiff's name alone. Defendant claimed that in June 1995 she had significant assets, the bulk of which she received in connection with her 1992 divorce. Specifically, she testified that as a result of her divorce she received $300,000, comprised of 13,000 shares of Alliance Capital stock, some other miscellaneous stock, plus a small IRA (worth $2418 in February 1997), all of which she placed into a Smith Barney account. Although she claimed that she also received about $150,000 in cash from the sale of her former marital home, she provided no documentation to back up this claim. In any event, as of June 1995, defendant's Smith Barney account was worth $237,824, which included $247,000 in Alliance Capital stock, but reflected a $132,260 margin.

Defendant also reported that she received a $100,000 final lump sum alimony payment from her former husband in May 1995. However, she gave $40,000 of this payment to plaintiff to pay back a loan he made to her parents, and she used the rest to pay her bills and make mortgage payments.

Plaintiff's company was doing very well at the time he became engaged to defendant. Specifically, in 1994, he earned $1,497,598 in gross wages from BDF, plus another $53,000 in interest and dividends, and had net income of $836,655. In 1995, he earned $760,957 in gross wages from BDF, plus another $16,000 in interest, and had net income of $412,400. Also in 1995, he received 25,000 Nastech Pharmaceutical Company Inc. (Nastech) stock options in recognition for his work in 1994 as a director of that company. Additionally, at this time, plaintiff also claimed to own 56,418 shares of stock in Bioneutrics Inc. (Bioneutrics), although this stock was not distributed to him individually until April 1997.

Construction on the parties' new home began in June 1995. On July 26, 1995, defendant made plaintiff a joint owner of 6334 shares of her Alliance Capital stock worth $124,304 to use as collateral on a loan in his name only. According to defendant, she told plaintiff not to sell the stock because she had a large margin on her account and also intended to keep the stock as a nest egg. Two days later, plaintiff obtained a one-year, $100,000 loan from Summit Bank using the stock as collateral.

As of September 1995, defendant had two Chemical Bank accounts collectively worth $80,142 and a Nations Bank account worth $11,176. Her September 1995 statement from Smith Barney indicated that her account there, which included the remaining 6666 shares of Alliance Capital stock worth $129,987, plus other stocks, had an overall value of $125,888 after taking into account a $131,069 margin. On September 27, 1995, defendant sold her townhouse for $360,000 and realized a profit of $152,994. She apparently put this money into her Chemical Bank checking account, which increased in value as of October 12, 1995, to $181,961.

Also in September 1995, defendant wrote a check for $60,000 to plaintiff from her Chemical Bank account. Although plaintiff claimed that defendant gave him this money to pay back a $35,000 loan he had given her at the time she purchased her townhouse and to assist with the construction costs on their new house, defendant denied that plaintiff intended any portion of this money as repayment of his loan to her. In November 1995, she wrote plaintiff another check from her Chemical Bank account for $50,000, which she claimed was a contribution towards the new house and for which she was not reimbursed. She wrote an additional $10,000 check to plaintiff on her Nations Bank account in March 1996 and one final $15,000 check to plaintiff on her Chemical Bank account in April 1996, both of which plaintiff repaid. Between these checks and her living expenses, defendant's Chemical Bank and Nations Bank accounts were reduced to a combined total of $4802 by May 1996, although her Nations Bank account was subsequently augmented by $6000 she received from her parents after the parties' wedding and the money she received as a result of the sale of her Mercedes vehicle.

The parties were married on May 19, 1996, and began residing in their new home, which they christened "Waterside." According to defendant, however, she almost immediately lost faith in her new husband. Specifically, in early October 1996, defendant learned that on September 16, 1996 plaintiff had sold the Alliance Capital stock she had given him as collateral. While plaintiff maintained that he secured defendant's permission before selling the stock, defendant denied this. Plaintiff used $101,787 of the $159,459 he received for the stock to pay off the $100,000 Summit Bank loan. He deposited the balance of $57,672 into his bank account. He used the remainder to buy himself a $22,000 Lexus and pay off other miscellaneous debts.

According to defendant, soon after the marriage she also came to learn that plaintiff had spent uncontrollably, and without her input or knowledge, on the house. She stated that when she challenged his purchase of the Lexus and proposed that they figure out their finances together, he informed her that she was financially incompetent. Nonetheless, in July 1997, when they determined that their outstanding debts, aside from the $1,000,000 mortgage on Waterside, amounted to $64,000, defendant offered to withdraw $75,000 from her newly-established Merrill Lynch account to erase the debt. Plaintiff accepted defendant's offer.

Defendant testified that after accepting her offer, plaintiff offered to transfer to her shares of Bioneutrics stock which she could sell to erase the $75,000 margin on her account. Plaintiff, however, maintained that he offered defendant this stock because of the 1996 Alliance Capital stock debacle. In any event, plaintiff ultimately transferred 25,000 shares of Bioneutrics stock to defendant in December 1997. However, defendant subsequently learned that the stocks were restricted and could not be sold until March 2000. In March 2000, defendant sold all but 2000 of these shares for $141,795. The shares she retained no longer had any value by the time of trial.

While all of this borrowing and transferring was going on, plaintiff was still earning a sizeable salary from BDF. Specifically, in 1996, he earned $341,604 in gross wages from BDF, plus over $4000 in interest and dividends, and his net income was $227,289. In 1997, he earned $328,274 in gross wages from BDF, plus a payment of $63,854 from an entity called Mazier Partners, LLC (Mazier), and his net income was $299,852. However, in 1998, although plaintiff earned gross wages of $334,531 from BDF, plus payments of roughly $70,000 from Mazier and BDF Group, LLC, he claimed a partnership loss of $366,153 and ended up with net income of only $10,630.

In May 1998, defendant decided to open a lingerie boutique (the "Sailor's Lady") in Block Island, Rhode Island. She drew upon her Merrill Lynch account to finance the venture. Plaintiff was initially very enthusiastic about the plan and allowed her to live on the forty-two-foot Catalina sailboat (the "Mad Hatter"), which he had purchased in 1989. However, defendant claimed that, toward the end of the summer of 1998, plaintiff became very resentful to her, and their relationship deteriorated further. Plaintiff, on the other hand, related that defendant was distant and did not devote any energy to their marriage. Nonetheless, defendant reopened the boutique in 1999 and again lived on plaintiff's boat, which resulted in further strain on their marriage. Ultimately, after the business reported losses in both years and the landlord raised the rent on the premises, defendant decided not to reopen in 2000.

In the fall of 1999, defendant proposed that the parties engage in mediation to either settle their financial issues in anticipation of divorce or resolve their problems, which included both a cash flow problem and a significant problem with one of plaintiff's daughters whom defendant had thrown out of the Maryland house. Notably, in 1999, plaintiff earned gross wages of $405,249 from BDF, plus payments from a holding company he had recently created called the Montrose Group totaling $86,000, but claimed a business loss of $237,520 and ended up with net income of $189,195. According to plaintiff, the parties were actually separated at that time, and defendant barred him from Waterside.

Nonetheless, as a result of the mediation, plaintiff agreed to sell his remaining Bioneutrics stock for $176,419 and used this money to pay down the marital debt. Additionally, in March 2000, he began making monthly deposits of $7000 into the parties' joint Merrill Lynch account to meet all household expenses except for the mortgage and real estate taxes, which he agreed to cover. The parties went on two brief trips to Barbados in March and May 2000, trips defendant identified as the first vacations they took that were not related to business, and also went to Singapore for business in October 2000. Notably, according to plaintiff's 2000 tax return, he earned $735,840 in gross wages from BDF/the Montrose Group, plus interest income of $20,710, a net gain of $176,419 from the Bioneutrics stock sales, a net partnership gain of $201,866, and a separate payment from the Montrose Group of $79,548, for total net income of $713,102.

Despite these efforts, the parties' relationship further deteriorated and, in December 2000, plaintiff began withholding some of the promised funds from the household account. According to plaintiff, defendant never provided him with the agreed-upon reconciliation of the funds he sent her and was spending excessively. On April 16, 2001, plaintiff filed a complaint for divorce. In June 2001, he stopped contributing to the household expenses, although he continued to pay the mortgage and the real estate taxes. Defendant began using her own assets, including a recent inheritance, to support herself; she also borrowed money from her mother for this purpose.

According to plaintiff, he stopped depositing money into the household account because the various entities that made up the Montrose Group, including BDF, either failed or had significant setbacks, and because he ceased receiving a salary as of May 2001. According to his 2001 tax return, plaintiff received $362,737 in gross wages from the Montrose Group/BDF, plus interest income of $17,000, a net gain of $174,858 from the sale of his Nastech stock options, and a separate payment from the Montrose Group of $55,926, for net income of $199,055. However, plaintiff admitted that in August 2001, he also began receiving reimbursement payments of roughly $15,000 per month from the Montrose Group for the $400,000 worth of travel expenses he had incurred as he tried to drum up business. Plaintiff also conceded that, despite his business difficulties, he used approximately $150,000 of the Nastech monies he received in 2001 to refurbish the Mad Hatter.

In September 2001, the parties listed Waterside for sale for six months at a price of $2,750,000 but failed to secure a buyer. They re-listed the property between March and May 2002, again without success. Thereafter, defendant unilaterally decided to take the property off the market. She continued to reside in the home. While plaintiff, who was then residing in New Jersey, paid the mortgage, defendant used her own funds to cover the remaining household expenses. She also rented both the house and the cottage in 2002 without plaintiff's permission and utilized the $12,000 in rent she received to defray her costs.

Despite plaintiff's efforts to salvage his businesses, his financial situation deteriorated further; his only income came from selling his remaining Nastech stock for $222,934, which resulted in a net income of $183,956 by 2002. He claimed, however, that Merrill Lynch actually liquidated the Nastech stock to eliminate the margin on his account, and he saw none of these monies. In 2003, plaintiff liquidated his 401K for $239,849 and had an adjusted income of $184,179, although he saw only a portion of these monies because of a loan he had on the 401K account. However, he continued receiving his business expense reimbursement monies from the Montrose Group and ultimately recovered $355,000 by December 2003. Although $45,000 was still owed to him, as of trial his companies no longer had any assets with which to repay him.

In May 2003, defendant opposed plaintiff's motion to immediately re-list Waterside for sale. When plaintiff's motion was granted in June 2003, defendant subsequently failed to identify three realtors acceptable to her, as required by the court's order. Plaintiff returned to court and was allowed to pick a realtor of his choice. After defendant refused to sign the listing agreement, plaintiff made another application to the court and obtained an order requiring the immediate execution of the agreement by defendant. After a buyer was located, plaintiff was forced to return to court one more time in October 2003 for an order directing defendant to sign the purchase contract. Waterside ultimately sold for $1,850,000; the closing was held on December 8, 2003.

Defendant initially justified her unilateral decision to remove Waterside from the market in June 2002 as a prudent business decision based upon a realtor's advice. She asserted that she was entitled to reimbursement of the unspecified monies she expended between May 2002 and June 2003 keeping the house in order, and maintained that caring for the house precluded her from getting a job. She later admitted, however, that she resisted selling the house because she had hoped to get it as part of a settlement with plaintiff and use it for a business venture that she thought would provide a substantial income.

As part of the June 2003 proceedings, the court also awarded defendant pendente lite support of $7000 per month, which included the mortgage payment. However, plaintiff consistently failed to pay the full amount, resulting in arrearages of $16,651.96.

On November 1, 2003, plaintiff secured a position as a special advisor to Nastech at a salary of $15,000 per month. He explained at trial that he had no written employment contract, but expected the job to last at least one year. He was also actively seeking more consulting work. He further confirmed that he no longer owned any stocks, bonds, or retirement funds. He also had extensive credit card, automobile, and other debt, and had been relying upon his brother to pay his $3300 monthly rent. He continued to pay court-ordered child support of $80,000 per year for his two unemancipated children.

Defendant resided with friends in New Jersey and Maryland after the sale of Waterside, but anticipated moving to a house she rented in Arizona with her brother and sister-in-law for the next six months so that she could help her elderly mother. She had not looked for a job as a physical therapist or in any other profession. Her $135,000 IRA account was intact, but her investment account was worth only $69,529 minus a margin of $52,000. She claimed that she spent $170,000 to $180,000 of her Merrill Lynch account between 1996 and 1999, and that she also loaned her niece $30,000 during the spring of 2000. She owed her brother and daughter approximately $38,000 and had unreimbursed medical expenses of $10,925. She insisted that she had contributed $135,000 towards the construction of Waterside.

Certified public accountant Daniel Schreck prepared a report dated July 31, 2003, in which he identified: (1) the costs associated with constructing Waterside and what each party contributed; (2) plaintiff's income; (3) the various fund transfers made by the parties; and (4) the origins of the money transferred. He explained that he was originally retained by plaintiff, but ultimately became a joint expert in the case.

Based upon his review of bank accounts and credit card records, cancelled checks, and invoices, which were largely provided by plaintiff, Schreck concluded that plaintiff contributed $1,750,000 to construct Waterside, including the $1,000,000 mortgage he took out in his name, while defendant contributed only $56,000. He agreed with defendant's contention that she paid $56,000 directly to house costs even though she failed to timely provide him with supporting documentation. He rejected other documentation offered by defendant's counsel after the discovery deadline and also by defendant herself after the initial trial date. He acknowledged that defendant took exception to the relevance and/or accuracy of expenditures totaling $145,000 that he included as house construction costs, noting that he appended defendant's list of exceptions to his report and segregated the relevant invoices to ease any subsequent review. In addition to the $1,750,000 plaintiff contributed towards the house, plaintiff also paid $620,664 to defendant or her family between 1994 and 2000, not including the Bioneutrics stock.

Donna Kolsky, an employability expert, reported that in an interview with defendant, defendant did not identify any tangible career goals or ambitions and did not express any desire to return to work as a physical therapist. Kolsky noted that there was currently a huge demand for physical therapists and that defendant's New Jersey license was valid until January 31, 2004, and could thereafter be renewed without recertification. Defendant could also obtain a license in Maryland with just the payment of a $150 fee. According to Kolsky, the salary range for a physical therapist with defendant's experience was $55,000 to $60,000, and the median salary for a practitioner in New Jersey was $63,336.

As noted, on April 16, 2001, plaintiff filed a divorce complaint with the Family Part. Defendant subsequently filed her own complaint for divorce in Maryland and moved to dismiss plaintiff's New Jersey complaint. By order of June 7, 2002, the judge concluded that New Jersey had jurisdiction over the matter and stayed the Maryland action. Defendant thereafter filed an answer and counterclaim for divorce in New Jersey.

A bench trial was held for ten days in December 2003 and January 2004. The judge subsequently issued a written decision dated March 1, 2004, in which he awarded plaintiff eighty percent and defendant twenty percent of the net proceeds from the sale of Waterside ($756,130.81), based upon their respective construction contributions of $615,000 and $135,000. He specifically noted that he was accepting defendant's, rather than Schreck's testimony as to her contributions. He further ruled that defendant was not entitled to a share in the Mad Hatter, and that, while defendant could keep the 1994 Toyota Land Cruiser plaintiff purchased prior to the marriage, she had to reimburse him for one-half of its current value, or $3250. The judge also denied defendant's claim for alimony, as well as her claim for $10,925.25 in unreimbursed medical expenses, but awarded her $16,651.96 in support arrears. Lastly, the judge ordered defendant to pay $10,000 towards plaintiff's counsel fees.

A month after the divorce judgment was filed, plaintiff moved for an order requiring the parties to split the bill of their joint financial expert, Schreck, and for the immediate disbursement of the proceeds from the sale of the marital home. Defendant cross-moved for a stay of the disbursement and also opposed the proposed division of Schreck's bill. On April 5, 2004, the judge entered an order denying stay of the distribution of the proceeds and directing that each party would be responsible for one-half of Schreck's bill.

On appeal defendant presents the following arguments:

POINT I

DESPITE HAVING DECLARED THAT CREDIBILITY WAS THE VERY HEART OF THE CASE, THE COURT IGNORED PLAINTIFF'S ABJECT LACK OF CREDIBILITY AND GAVE TOO MUCH CREDIBILITY TO DANIEL SCHRECK, CPA.

A. PLAINTIFF'S LACK OF CREDIBILITY

B. DANIEL SCHRECK WAS GIVEN TOO MUCH CREDIBILITY

POINT II

THE PURPORTED DISTRIBUTION OF PROPERTY ACQUIRED DURING THE MARRIAGE WAS NEITHER FAIR, NOR EQUITABLE, NOR COMPLETE.

POINT III

THE COURT FAILED TO DISCHARGE ITS OBLIGATIONS UNDER THE STATUTE TO EVALUATE THE AMOUNT AND TYPE OF ALIMONY AND TO AWARD DEFENDANT A TERM OF ALIMONY COMMENSURATE WITH THE STANDARD OF LIVING.

POINT IV

THE AWARD OF COUNSEL/EXPERT FEES TO THE PLAINTIFF WAS PUNITIVE AND DID NOT TAKE INTO ACCOUNT THE FACTORS OF R. 5:3-5 AND APPLICABLE CASE LAW.

II

Defendant contends that, in his decision, the trial judge improperly accepted plaintiff's unreliable and incredible testimony, and failed to disregard Schreck's testimony, which was premised upon plaintiff's faulty recordkeeping. We disagree.

In reviewing a trial judge's conclusions in a non-jury civil action, an appellate court must give substantial deference to the trial court's findings of fact and conclusions of law. Walles v. Walles, 295 N.J. Super. 498, 513 (App. Div. 1996) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). An appellate court should disturb these findings only where there is no doubt they are inconsistent with the relevant, credible evidence presented below, such that a manifest denial of justice would result from their preservation. Ibid. It is of no consequence that the reviewing court might have reached a different result, or that all testimonial or evidentiary issues were resolved in favor of one side. Beck v. Beck, 86 N.J. 480, 496 (1981). Deference is especially appropriate "'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 399 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). 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." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).

In her argument concerning plaintiff's credibility, defendant cites numerous examples of plaintiff's faulty recollection. However, the examples cited are either inconsequential or pertain to matters that were later clarified by either plaintiff's counsel, defense counsel, or by the documentation presented at trial. Given the complexity of plaintiff's business arrangements, the vast number of documents he produced during discovery, and the number of years for which his business and personal activities were being scrutinized, we do not find it surprising that plaintiff frequently became confused about numbers, dates, and what he was doing in particular years. This did not mean, however, that the bulk of his testimony was not worthy of credence, particularly where there was no indication that he was deliberately trying to mislead the court. The trial judge was in the best position to evaluate plaintiff's credibility.

Defendant also contends that the trial judge gave too much credence to Schreck's findings. However, a trial judge's decision to reject or rely upon certain expert testimony will only be reversed upon a finding of abuse of discretion. Torres v. Schripps, Inc., 342 N.J. Super. 419, 431 (App. Div. 2001). In her argument, defendant ignores the fact that the judge accepted defendant's contention that she contributed $135,000 towards the construction of Waterside and rejected Schreck's finding that her net contributions only totaled $56,000. Additionally, contrary to defendant's representations, Schreck did not blatantly disregard materials supplied by defendant; rather, Schreck testified that defendant failed to produce documents in accordance with discovery deadlines. Finally, although defendant's essential complaint is that Schreck overstated the cost to construct the house, thereby reducing the profit available for equitable distribution, she submitted a schedule of non-construction costs to both Schreck and the court below, and she failed to make any specific argument as to why the trial court erred in rejecting it.

As a result, we reject defendant's argument that the trial court erred in relying upon the testimony of plaintiff and Schreck.

III

Defendant contends that the trial judge erred in failing to conclude: (1) that the Bioneutrics stock and Nastech stock options plaintiff sold during the marriage were marital assets subject to equitable distribution; (2) that defendant was entitled to an interest in the Mad Hatter because the loan plaintiff used to fund its purchase was significantly paid down during the marriage and/or because monies that should have gone to defendant's support in 2001 were used to repair and maintain the boat; and (3) that defendant was entitled to ownership of the Toyota Land Cruiser without any payment to plaintiff. We agree only with defendant's argument regarding plaintiff's sale of roughly 60,000 of his Nastech stock options.

In effectuating an equitable distribution of marital assets pursuant to N.J.S.A. 2A:34-23.1, the trial court must first decide what property is eligible for distribution. When the trial court's decision in this regard is challenged on appeal, the standard of review is whether the trial judge's findings are supported by adequate, credible evidence in the record. Rothman v. Rothman, 65 N.J. 219, 233 (1974); Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978).

A trial judge is then vested with broad discretion in determining how to best divide the marital assets. Wadlow v. Wadlow, 200 N.J. Super. 372, 377 (App. Div. 1985). Appellate review of a trial judge's division of marital assets is limited to determining whether the results "'could reasonably have been reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of the law or findings of fact that are contrary to the evidence.'" Id. at 382 (quoting Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978)).

a. Bioneutrics stock and Nastech stock options

At trial, plaintiff testified that he acquired 56,418 shares of Bioneutrics stock well before the parties' marriage. He explained that although the stock was his individually, it was initially held in a BDF account along with additional Bioneutrics stock belonging to other company executives, and was not ultimately distributed to him until April 1997. Plaintiff transferred 25,000 shares to defendant in December 1997 to reimburse her for certain premarital assets she lost, and sold the rest in 2000 to discharge marital debt.

Plaintiff became a member of Nastech's board of directors in 1994 and was awarded a varying number of stock options in the company each year thereafter. He received 25,000 options in 1995 and 1996 for work performed in 1994 and 1995, and 10,000 options each year thereafter through 2002 for a grand total of 110,000 options. In August 1998, the 45,000 options granted in 1996, 1997 and 1998 were cancelled, repriced and reissued.

Plaintiff confirmed that he cashed out 23,000 Nastech options on November 1, 2001, and used the money to pay for repairs on the Mad Hatter. He did not know whether the options he exercised in 2001 were acquired before or after the marriage but believed they were premarital because he would have utilized his oldest options first. Plaintiff further claimed that 80,000 additional options were involuntarily liquidated by Merrill Lynch in July 2002 for $222,934 to eliminate the margin on his account. He related that he put up the options in order to obtain cash to support himself and his children and attempt to resuscitate his business between 2001 and 2002. He did not offer any explanation as to what happened to the remaining 7000 options, although his 2002 tax return indicated that he received an additional $5500 in other income from Nastech.

In his decision, the judge made no mention of the Bioneutrics stock. He likewise made no mention of the Nastech stock options, although he did accept plaintiff's representation that "premarital funds" (presumably the Nastech stock options based upon plaintiff's testimony) were used to repair the Mad Hatter in 2001.

Defendant first contends that, because plaintiff actually received the Bioneutrics stock during the marriage, it was a marital asset which plaintiff had no right to sell after he filed the divorce complaint and which should have been equitably divided by the court. However, in making her argument, defendant ignores the fact that, regardless of when the stock was acquired, she acknowledged at trial that, in 2000, plaintiff made good on his mediation promise to sell his remaining shares of Bioneutrics stock to pay off some of their marital debt. Accordingly, she can now complain only that the 25,000 shares of stock plaintiff transferred to her in December 1997, to supposedly reimburse her for either the lost Alliance Capital stock or the $75,000 she contributed towards their marital debt in July 1997, were in fact jointly owned. However, the trial judge was entitled to accept plaintiff's representation that he owned the stock prior to the parties' marriage and that the stock fully compensated defendant for the loss of her assets. We reject this aspect of defendant's argument.

Defendant next argues that the trial judge overlooked that the bulk of plaintiff's Nastech options were earned during the marriage and subject to equitable distribution. We agree. Plaintiff had the burden of establishing that the Nastech options were immune from distribution. Valentino v. Valentino, 309 N.J. Super. 334, 338 (App. Div. 1998). He failed to sustain this burden since the proofs presented at trial actually confirmed that roughly 60,000 options were earned during the marriage. Even assuming that plaintiff used his premarital options to pay for his boat repairs in 2001, as the judge found, the fact remains that plaintiff also testified that he used the remaining marital options as collateral to obtain cash in 2001 and 2002 to pay his personal and business expenses, as well as his child support obligations. Thus, when the remaining marital options were liquidated by Merrill Lynch in 2002, they were liquidated not to satisfy a marital debt, but to satisfy plaintiff's personal debt. Accordingly, we conclude that plaintiff improperly dissipated a marital asset and that defendant is arguably entitled to be reimbursed for one-half of the value of the marital options sold in 2002.

b. Catalina Sailboat

Plaintiff confirmed that he purchased the Mad Hatter for $138,000 in 1989. He explained that he made a down payment of roughly $20,000 and took out a fifteen-year loan with monthly payments of $900 to pay the remainder of the purchase price. Plaintiff recalled spending hundreds of thousands of dollars on the boat between 1996 and 2002, including upwards of $185,000 between 2001 and 2002 alone, but claimed that the boat was only presently worth $102,000 to $125,000. He also claimed that he utilized monies he received from the sale of his Nastech stock in 2001 ($174,585) to pay the boat expenses incurred in that year. Defendant, who conceded that she made no financial contributions toward the Mad Hatter during the marriage, acknowledged that she did not know where plaintiff got the money to pay for the boat expenses in 2001.

The judge ruled as follows:

The defendant asserts a claim for equitable distribution relating to the Catalina boat. The Court rejects that assertion, denying defendant's claim for same.

Plaintiff acquired this boat in 1989 for $138,000. He obtained this 42 foot boat with a down payment of $10,000, the balance by Promissory Note. The defendant asserts and the Court accepts that during the course of the marriage significant monies were put into this boat for repairs and upgrades. In 2002 $35,000 was spent, in 2001 $150,000. The plaintiff asserts generally that his premarital assets were used for a majority of the repairs, specifically stock which was sold in 2001 for $175,000. Defendant did receive the benefit of the boat throughout the marriage. In fact, during 1998 and 1999, while on Block Island, she used the boat as her primary residence while running the retail shop.

There is no question that the boat itself is exempt from equitable distribution as a premarital asset. The only claim by defendant is that funds were spent on the boat during the course of the marriage. She testified that in her view those funds should have been used to decrease the mortgage on Waterside. Defendant, however, has failed to establish . . . a legal basis to award equitable distribution and, in addition, the plaintiff has testified that premarital funds were used for those repairs. There has been no proof that the boat has appreciated in value during the marriage. For these reasons, the Court denies defendant's claim for a portion of that asset.

Ordinarily, any property owned by a husband or wife prior to marriage remains the separate property of such spouse and will be considered an immune asset not eligible for distribution in the event of divorce. Painter v. Painter, 65 N.J. 196, 214 (1974). Additionally, when an immune asset increases in value during the marriage solely due to market conditions, the appreciation is also immune from distribution. Valentino, supra, 309 N.J. Super. at 338; Scavone v. Scavone, 230 N.J. Super. 482, 486 (Ch. Div. 1988), aff'd, 243 N.J. Super. 134 (App. Div. 1990).

When, however, an otherwise immune asset increases in value due, in whole or in part, to the efforts of the non-owner spouse, the appreciation is subject to distribution. Valentino, supra, 309 N.J. Super. at 338. In such cases, a determination must be made as to the extent the original investment has been enhanced by the contributions of the non-owner spouse, utilizing the value of the asset at the time of distribution. Ibid. The burden of establishing immunity from equitable distribution rests upon the spouse asserting such immunity. Ibid.

Defendant now insists that she should have been awarded an interest in the Mad Hatter since $51,300 in marital monies were spent during the marriage to pay down the loan on the boat and/or because plaintiff chose to maintain or repair the boat in 2001 using monies that should have gone for her support. In Valentino, supra, 309 N.J. Super. at 340, referencing the earlier decision in Griffith v. Griffith, 185 N.J. Super. 382 (Ch. Div. 1982), we confirmed that a non-owner spouse's contribution to the enhancement of a pre-owned asset could consist of a mortgage pay-down during the marriage and could convert an otherwise immune asset into one whose appreciation is eligible for distribution. In the instant case, while plaintiff's equity interest in the boat may have grown during the marriage, the boat itself did not appreciate in value. In fact, according to the record, the boat's present value was $13,000 to $36,000 less than when it was purchased. Accordingly, we do not believe that the trial court erred in denying defendant an interest in the boat, and reject this aspect of defendant's argument.

c. Toyota Land Cruiser

Plaintiff testified that he purchased the Toyota Land Cruiser for $39,000 in 1994. He related that he put down $28,000 and financed the balance, which he paid off in either 1998 or 1999. He reported that the vehicle was currently worth $6500 according to the Blue Book as of November 2003.

Defendant related that she was the primary driver of the Land Cruiser during the marriage and that she continued to operate it even after the divorce was filed. When plaintiff stopped making his monthly maintenance payment in June 2001, she began using her premarital monies to maintain the vehicle. She presented a list of expenses totaling $15,692, and she represented that she sought ownership of the vehicle in lieu of repayment of these monies. She valued the truck at $10,800 as of August 2002.

The trial judge ruled as follows with respect to the Land Cruiser:

Plaintiff acquired the Toyota Land Cruiser prior to the marriage, employing in part, a car loan which was ultimately paid off during the course of the marriage. This vehicle was driven substantially by the defendant and remains in her possession. Plaintiff testified in recent years, that he has demanded its return, yet defendant has refused. Defendant provided evidence that she has expended substantial funds both premarital, as well as marital, for repairs for this vehicle. Her Case Information Statement of August 2002 asserts a value of $10,800. His Case Information Statement as of November 2003 asserts a blue book value of $6,500. The Court concludes that this was a premarital asset. However, its use mainly by the defendant and expenditure of her own funds has now converted it into a marital asset subject to equitable distribution. Absent any better value, the Court accepts the value of $6,500. The defendant may keep the Toyota Land Cruiser and provide the plaintiff with a credit of $3,250 for his share.

Although defendant argues that she should have been awarded the Toyota Land Cruiser outright in light of her contributions towards its maintenance, she ignores the fact that this vehicle was plaintiff's premarital asset and that she had absolutely no ownership interest in it until the court decided to grant her such an interest because she was the primary user of the vehicle and she spent some of her own funds to maintain it. Thus, the funds defendant expended merely put her on an even footing with plaintiff with respect to the vehicle. As such, we cannot agree with defendant that the trial judge abused his discretion in ordering her to pay him half of the vehicle's residual value before permanently turning the truck over to her.

In sum, we reverse and remand for an assessment of the monies due defendant as a result of plaintiff's 2002 sale of marital Nastech stock options.

IV

Defendant contends that the trial judge erred in refusing to award her term alimony. Defendant also argues that the trial judge erred in refusing to order plaintiff to pay her unreimbursed medical expenses. We disagree with both arguments.

A judge may award alimony (permanent, rehabilitative, limited duration, or reimbursement) as the circumstances of the parties and the nature of the case render fit, reasonable, and just. N.J.S.A. 2A:34-23; Cox v. Cox, 335 N.J. Super. 465, 474-83 (App. Div. 2000). Permanent alimony is generally awarded where economic need has been demonstrated and the marriage was of long duration. Cox, supra, 335 N.J. Super. at 476. Limited duration alimony is intended to "address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate." Ibid. Rehabilitative alimony permits a short-term award, which may be awarded in addition to permanent or limited term alimony, to enable the dependent spouse to "complete the preparation necessary for economic self-sufficiency." Hill v. Hill, 91 N.J. 506, 509 (1982).

The basic purpose of alimony is "to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). "The supporting spouse's obligation is set at a level that will maintain that standard." Innes v. Innes, 117 N.J. 496, 503 (1990) (citing Lepis v. Lepis, 83 N.J. 139 (1980)). "Bare survival is not the proper standard, it is the quality of the economic life during the marriage that determines alimony." Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998). Further, "[t]he standard of living during the marriage is the way the couple actually lived, whether they resorted to borrowing and parental support, or if they limited themselves to their earned income." Id. at 34. N.J.S.A. 2A:34-23(b) sets out twelve, non-exclusive factors that a court must consider in deciding whether to award permanent alimony and, if so, in what amount.

The three most important considerations in fixing an alimony award are the dependent spouse's needs, the dependent spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard of living to which the parties had become accustomed prior to their separation. Crews, supra, 164 N.J. at 24.

When assessing the appropriateness of an alimony award, a reviewing court must give "deference to [the] trial judge's findings . . . if those findings are supported by substantial credible evidence in the record as a whole." Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998). To vacate a trial judge's finding concerning alimony, an appellate court must conclude that the trial judge clearly abused his or her discretion by failing to consider all of the controlling legal principles or by making determinations that could not reasonably have been reached on the record. Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993).

In denying defendant's claim for alimony, the judge initially rejected both defendant's position that the parties' marriage began in 1995 when the parties began commingling their assets and was of six years duration, and plaintiff's position that the marriage was only of three years duration, having commenced in 1996 and ended upon the parties' separation in 1999. Rather, the judge determined that the parties' short-term five-year marriage began in 1996 when they married and ended in 2001 when plaintiff filed his complaint for divorce. The judge also concluded that the history of financial or other contributions by either party was not significant due to the short-term nature of their marriage.

The trial judge found that the standard of living established during the marriage "for its first few years was immersed in Waterside." The judge noted that this lavish home absorbed the resources of the parties and that there was little other evidence of the marital lifestyle, other than the Mad Hatter, which was a premarital asset. The judge concluded that it was clear that neither party would enjoy the lifestyle embodied in their former home in the foreseeable future.

The judge further determined that, although defendant was not employed, she had approximately $350,000 in assets, comprised of $200,000 in premarital assets, plus her present equitable distribution award. The judge was satisfied that defendant's equitable distribution award would provide her with resources from which income could be earned. The judge further determined that defendant was in good health and he accepted Kolsky's testimony that defendant was capable of earning between $55,000 and $60,000 per year as a physical therapist notwithstanding her lengthy absence from that profession. The judge noted that defendant had not provided any alternate rehabilitation plan. The judge further found that plaintiff's income had been affected by economic conditions beyond his control and that, in light of plaintiff's age, he could not conclude that it would ever again exceed his current $180,000 salary. He noted that plaintiff had a substantial, documented child support obligation of $80,000 per year.

The judge then ruled as follows:

The Court concludes that substantial assets were expended by the plaintiff, and to some extent, the defendant in developing this home and for their general lifestyle. Plaintiff's present income and absence of assets make it clear that he cannot sustain for himself nor for the defendant the lifestyle which they enjoyed during the course of this short marriage. Significant to the analysis of the defendant's claim for alimony, are the actual length of the marriage and the position of the defendant entering this marriage and leaving it. Her assets will now exceed those which were present when she married. Prior to this marriage as stated above, her income was minimal. As the Court noted in Scribner v. Scribner, 153 N.J. Super. at 376 (Ch. Div. 1977) "she lost nothing by this marriage . . . her ability to work was not impaired. She did, for the short duration of the marriage, enjoy a standard of living which she has not known before or since." In Scribner, the wife was divorced previously in 1971 and married Mr. Scribner in 1973. They separated three years later. Although this marriage is slightly longer, the same principles apply. Scribner quoting Taylor v. Taylor, 279 So. 2d 354 (Fla. Ct. App. 1973) in denying alimony in a 2 year marriage stated "when the marriage was dissolved, appellant was none the worse for the experience and for practical purposes still had everything that she had brought to and contributed towards the brief marriage."

Cox v. Cox, 345 N.J. Super. 465 (App. Div. 2000) requires that the Court review defendant's claim for limited duration alimony within the context of permanent alimony. Having done so, the Court concludes that permanent alimony will not be awarded both because the defendant's position ha[s] not changed, as well as the short term of the marriage. Having concluded that no permanent alimony is warranted, the Court also concludes that no limited duration alimony is appropriate. As Cox states, the defendant must qualify for permanent alimony but for the limited duration of the marriage. Finally, no rehabilitation plan was submitted by the defendant which would warrant the Court's consideration of alimony for rehabilitative purposes.

Defendant now contends that the trial court's findings on the issue of alimony were not supported by the record and that she should have been awarded term alimony in accordance with the marital standard of living. Specifically, defendant argues that the court improperly: (1) condoned plaintiff's present underemployment; (2) did not explain how plaintiff's available income was reduced by his child support obligation; (3) disregarded the standard of living during the marriage and defendant's entitlement to some approximation of that standard regardless of her future employment plans; (4) ignored the length of time defendant had been unemployed and her lack of interest in resuming her career as a physical therapist; and (5) found that defendant's post-divorce assets would be comparable to the assets she brought into the marriage.

With respect to defendant's first contention, she is correct that current earnings have never been viewed as the sole criterion upon which to establish a party's obligation for support, and that a court "'has every right to appraise realistically [a spouse's] potential earning power.'" Weitzman v. Weitzman, 228 N.J. Super. 346, 354 (App. Div. 1988) (quoting Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956)), certif. denied, 114 N.J. 505 (1989). However, defendant ignores the fact that she in no way established that plaintiff was underemployed. She did not challenge plaintiff's proofs as to the failure of his businesses, and offered no testimony from an employability expert or industry specialist indicating that alternate and more lucrative, or even supplemental, positions were available to him. Thus, we reject defendant's present contention that, in ruling upon the issue of alimony, the trial judge improperly condoned plaintiff's current underemployment.

Defendant next argues that the trial court did not explain how plaintiff's child support obligation affected his present ability to pay alimony. However, as this was a court-ordered obligation which predated the parties' marriage, the judge need not have given any greater explanation, since it clearly affected plaintiff's available income.

Defendant next contends that the trial judge disregarded the standard of living during the marriage and defendant's entitlement to some approximation of that standard regardless of her future employment plans. However, the record reflects that the parties' standard of living was largely funded by the assets and salary plaintiff brought into the marriage. These assets and salary are now gone and it is impossible for either party to live in the manner they did before. Further, contrary to her representation, defendant's ability to support herself is certainly relevant under the alimony statute in determining whether she is entitled to additional court-ordered support.

Defendant next challenges the trial judge's finding that she could earn a significant salary as a physical therapist despite the length of time she had been away from that profession. However, this finding was well-supported by Kolsky's testimony. Although defendant criticizes Kolsky's report by noting that she only explored Maryland and New Jersey job opportunities for defendant in the field of physical therapy, a profession defendant now finds unappealing, this was simply because defendant declined to offer any other plan as to where she intended to reside and what type of job she intended to seek. Kolsky had no choice but to assess defendant's future employability in the only field in which defendant had both qualifications and work experience, and in the areas where defendant had most recently resided. While defendant claims that she was unable to present alternate plans for her future at the time of trial because she was homeless and burdened with the care of her aged mother, this is disingenuous. Defendant had years while living at Waterside to contemplate and prepare for her future. She simply chose not to do so.

Finally, defendant argues that the trial judge erred in finding that her post-divorce assets would be comparable to the assets she brought into the marriage and that, as such, she was basically leaving the marriage as she had entered it. According to defendant, she entered the marriage with upwards of $900,000 in assets, as opposed to the $350,000 found by the judge. However, our review of the record confirms that, as of September 1995, defendant's Merrill Lynch account was worth only $125,888, that she had other bank accounts collectively worth $91,000, and that she subsequently received $150,000 from the sale of her townhouse. Thus, the court's calculation of defendant's premarital assets would appear to be correct.

It must be noted, though, that the court's assessment of defendant's present assets included the $153,000 she received in 1998 as a final disbursement relating to her first divorce. However, we believe this error to be of no moment since defendant admitted spending $170,000 to $180,000 of her own funds between 1996 and 1999, the bulk of which likely went to her failed venture on Block Island. Notably, the record does not reflect that "The Sailor's Lady" was perceived by the parties as a marital project, and defendant has made no claim for reimbursement of the monies she spent on this business. Defendant also loaned her niece $30,000, roughly $25,000 of which has not been repaid. Accordingly, it cannot be said that defendant's separate assets should have actually been greater at the conclusion of the marriage than they were at its inception. Thus, the trial court was correct in concluding that, after equitable distribution, defendant was in no worse financial position as a result of the marriage than she was prior to the marriage.

Defendant also argues that she is in fact in a worse position because she was forced to use her own monies to support herself after plaintiff stopped voluntarily paying her $7000 per month in mid-2001 and that she is now entitled to arrears. Defendant ignores the fact that her need for monies to operate Waterside was self-created. She took the house off the market and then fought every attempt plaintiff made to sell it. She could have gone to court sooner to obtain pendente lite support but likely elected not to for fear that the court would order the immediate sale of the house, and thereby end her plans to retain the house and use it in a business venture.

In sum, given all the circumstances in this case, and in particular the fact that there was never really a marital partnership between the parties, who lived in separate states and engaged in separate pursuits throughout the marriage, we do not agree with defendant that the trial judge abused his discretion in refusing to award her limited term alimony.

Defendant also argues that the trial court erred in refusing to order plaintiff to pay her unreimbursed medical expenses. We disagree.

Defendant testified that, during the marriage, she paid for medical treatments at the time of service, and then submitted invoices to an employee at plaintiff's firm who forwarded claim forms to Oxford Health Plan. Defendant would subsequently receive a check from plaintiff's company in the amount deemed reimbursable by the insurance company. She admitted that she was not reimbursed for any co-pay amounts.

Beginning in the spring of 2001, defendant was not reimbursed on a number of invoices even though she first submitted them as usual, then personally presented them to plaintiff, and then finally mailed some of the invoices herself directly to Oxford Health Plan. She claimed that between April 2000 and some point in 2003, she had not been reimbursed for $10,925 in medical expenses. However, she conceded that she had received insurance reimbursement on some of the invoices (leaving only the co-pays), that she had not submitted all of the invoices to Oxford Health Plan and did not know how much was recoverable, and that she had in fact recently incurred more medical expenses. As such, defendant admitted that she did not actually know what the final amount allegedly due her would be.

The trial court ruled as follows regarding defendant's claim for unreimbursed medical expenses:

Defendant asserts a claim for unreimbursed medical expenses of $10,925.26. Her testimony generally was that these expenses were submitted through the plaintiff's employment but they had not been reimbursed. No evidence has been presented to establish that the plaintiff was legally obligated to make these reimbursements. No proof was presented to confirm the bills, whether they were presented to the insurance company and balance due. The defendant has, therefore, failed to meet her burden of poof and, accordingly, that claim is denied.

Although defendant insists that she is entitled to payment for her unreimbursed medical expenses, we are not convinced. Notably, in her brief argument, defendant makes no attempt to address the deficiencies in her proofs on this issue, as the court noted in its decision. Since defendant was unable to properly support the amount she claimed was owed to her, the trial court did not err in refusing to order reimbursement.

V

Defendant contends that the trial court erred in ordering her to pay $10,000 towards plaintiff's counsel fees, as well as one-half of the fee charged by Schreck. We disagree.

The award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court. R. 5:3-5(c); Heinl v. Heinl, 287 N.J. Super. 337, 349 (App. Div. 1996); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992). In deciding whether to make such an award, the court should consider:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel

discovery; and (9) any other factor bearing on the fairness of an award.

[R. 5:3-5(c).]

Success in the litigation of the parties' dispute is not a prerequisite for an award of counsel fees. Guglielmo, supra, 253 N.J. Super. at 545.

The court in Kelly v. Kelly, 262 N.J. Super. 303 (Ch. Div. 1992), discussed the issue of counsel fees in matrimonial cases as follows:

Fees in family actions are normally awarded to permit parties with unequal financial positions to litigate (in good faith) on an equal footing. . . . With the addition of bad faith as a consideration, it is also apparent that fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees. This purpose has a dual character since it sanctions a maliciously motivated position and indemnifies the "innocent" party from economic harm.

[Id. at 307.]

The Kelly court went on to define bad faith as intentionally misleading or deceiving another, thereby precipitating legal action, and noted that more than a simple mistake was required before a party would be found guilty of bad faith. Ibid.; accord Von Pein v. Von Pein, 268 N.J. Super. 7, 19-20 (App. Div. 1993). The Kelly court further noted that, "[w]here one party acts in bad faith, the relative economic position of the parties has little relevance." Ibid.

The trial judge ruled as followed with respect to counsel fees:

The evidence indicates that the plaintiff has paid $60,000 to current counsel, $55,000 to prior counsel and still owes approximately $75,000. Total counsel fees are, therefore, $210,000 [sic]. Defendant's counsel fees are approximately $220,000. Both parties have, therefore, expended substantial funds in litigating this matter. R. 5:3-5(c) establishes the general basis upon which fees may be considered. The Court finds that the defendant has not acted reasonably or in good faith, specifically in regard to her position relating to the marital home. Repeatedly, the plaintiff was obligated to seek the Court's assistance in the sale of this home. Although the defendant testified as to different reasons why such litigation was necessary, she did ultimately indicate to the Court that it was her hope that she would obtain the home as a result of the divorce. In fact, she indicated she had an economic plan which was related to the home. The Court, therefore, finds that the defendant wished to maintain her agenda relating to the home, ultimately, requiring plaintiff to undergo a degree of unnecessary litigation expense. In fact, the Court notes that defendant previously was ordered to pay counsel fees to the plaintiff of $1,000 in June of 2003 relating generally to this issue. It is appropriate, therefore, that the defendant pay to the plaintiff the sum of $10,000 representing a reasonable portion of the plaintiff's fees necessitated by the defendant's unreasonable and bad

faith position regarding the disposition of the marital home.

Defendant argues that the $10,000 award against her was unwarranted where: (1) the court made inadequate findings as to her supposed bad faith with respect to the sale of Waterside; (2) she was already sanctioned for her failure to sign the listing agreement; and (3) it was plaintiff who actually exhibited bad faith by delaying the discovery process and then, along with his counsel, deliberately prolonging the trial. In support of her argument, defendant further notes that the judge erred in his calculation of the total fees incurred by the parties, failed to establish the sum of $10,000 as a reasonable penalty, and ignored her inability to pay. We disagree.

Contrary to defendant's representations, the trial judge did not award counsel fees "solely for her failure to sign a listing agreement in mid-summer, 2003." As noted by the judge, the record reflects that, after defendant unilaterally took Waterside off the market in June 2002, plaintiff was forced to go to court at least four times to: (1) obtain an order directing the immediate re-listing of Waterside for sale; (2) secure the services of a realtor after defendant disobeyed a court order directing her to identify three acceptable realtors; (3) obtain an order requiring defendant to immediately execute the listing agreement; and (4) obtain an order directing defendant to sign the purchase contract. Further, defendant ultimately admitted in her testimony that she deliberately thwarted the sale of the house in total disregard of plaintiff's wishes because she hoped it would be awarded to her as part of the divorce settlement, and that she had been working on a business deal involving the house which would have provided her with a future income. Accordingly, it appears that the trial court did not impose a double penalty on a single act of bad faith, but chose to sanction defendant for her repeated and admittedly blatant misconduct.

Defendant next contends that the amount of the award was unreasonable because it bears no relation to the actual fees plaintiff expended on selling the house, but is instead premised upon the court's erroneous finding that plaintiff's fees totaled $210,000 rather than $190,000. However, while defendant is correct that the court erroneously overstated her total fees, and apparently erred in adding up plaintiff's fees, she has not included in her appendix any documentary proof of plaintiff's actual fees. In any event, we do not agree with defendant that the award here was unreasonable on its face, given the fact that it correlated to at least three additional unnecessary trips plaintiff was forced to make to court and was but a small fraction of plaintiff's overall fees. Additionally, while defendant insists that she should not have to pay because she received far less than plaintiff in equitable distribution, it cannot be ignored, as noted above, that "[w]here one party acts in bad faith, the relative economic position of the parties has little relevance." Kelly, supra, 262 N.J. Super. at 307. We reject defendant's contention that the amount of the counsel fee awarded here was unreasonable.

Lastly, defendant argues that the trial judge erred in failing to find that plaintiff exhibited bad faith in connection with this litigation by first delaying the discovery process and then, along with his counsel, deliberately prolonging the trial. However, defendant does not substantiate her claim that defendant delayed the discovery process. Rather, she simply references a single, partially successful motion she made for the return of documents she provided to him in discovery. Further, as pointed out by plaintiff in his brief, there was no suggestion during the trial that plaintiff or his counsel were conducting themselves in bad faith. While plaintiff undeniably gave erroneous (but subsequently corrected) testimony while on the stand, defendant did as well, most notably regarding a schedule she created of plaintiff's expenditures.

Defendant also argues that the trial court erred in ordering her to pay one-half of Schreck's fee because plaintiff "usurped control of Mr. Schreck" and caused him to spend the majority of his time "reviewing [p]laintiff's documentation and drafting one-sided, unrequested objectives," and because plaintiff was more financially able to pay the bulk of the fee. However, the record reflects that: (1) defendant specifically asked to use Schreck's services jointly (he had originally been separately retained by plaintiff); (2) defendant was intimately aware of the analysis being performed by Schreck and could have limited the scope of his investigation or her financial responsibility at any time; and (3) if the resulting report was in any way one-sided, this was largely because defendant failed to timely provide Schreck with documentation supporting her claimed contributions to the marital home. Additionally, we do not agree that defendant's present unemployment should have prompted the judge to lessen her contribution towards Schreck's fee where defendant has deliberately chosen not to seek employment.

Accordingly, we reject defendant's contention that the trial judge erred in directing her to pay $10,000 towards plaintiff's counsel fees, as well as one-half of Schreck's expert fee.

 
Affirmed in part, reversed and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.

Defendant's then nineteen-year-old daughter attended college and lived away at school.

In November 1998, $152,794 was transferred into defendant's IRA account as a final disbursement from her 1992 divorce.

Plaintiff subsequently received an additional 25,000 Nastech options in 1996 for work performed in 1995 and 10,000 options each year thereafter through 2002 for a grand total of 110,000 Nastech options.

After the sale of her Mercedes, defendant became the primary driver of a Toyota Land Cruiser that plaintiff purchased in 1994 for $39,000.

In 1997, defendant converted her Smith Barney account into a Merrill Lynch account and added to it the $14,000 she liquidated from an old, forgotten Fidelity account.

Although this stock is identified by the parties' joint accounting expert as Nastech stock, we conclude that the expert was mistaken.

At trial, defendant asserted that Schreck actually overstated the cost to build the house by $192,909. She admitted, however, that plaintiff had, in fact, paid these additional monies, but insisted that they covered household expenditures, and not construction costs.

Plaintiff's share was thus $604,904.64, while defendant's share was $151,226.17.

(continued)

(continued)

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A-4323-03T5

January 9, 2006