DORA G. HYDUK v. MICHAEL HYDUK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5578-04T15578-04T1

DORA G. HYDUK,

Plaintiff-Respondent,

v.

MICHAEL A. HYDUK,

Defendant-Appellant.

_______________________________

 

Argued February 5, 2007 - Decided August 1, 2007

Before Judges Lintner, Seltzer and C.L. Miniman.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Somerset County, FM-18-209-04.

Brian G. Paul argued the cause for appellant

(Szaferman, Lakind, Blumstein, Blader &

Lehmann, attorneys; Mr. Paul, of counsel

and on the brief).

Ronny J.G. Siegal argued the cause for respondent (Hellring Lindeman Goldstein & Siegal, attorneys; Ms. Siegal and Christy L. Saalfeld, of counsel and on the brief).

PER CURIAM

Defendant, Michael A. Hyduk, appeals from various provisions of a May 11, 2005, final judgment of divorce entered after a twenty-eight day bench trial. We affirm in part and reverse and remand in part.

Plaintiff, Dora G. Hyduk, and defendant were married on October 6, 1990, and are the parents of one child, Thomas, who was born on July 19, 1994. They purchased a home in Belle Mead in 1996 at a cost of $479,000, of which $150,000 was paid by proceeds of a mortgage and the balance was paid from savings acquired by plaintiff both before and during the marriage. Defendant was employed at the time of the marriage, but approximately one month later he lost his job and did not work thereafter. The judge determined that while the parties should share joint legal custody of Thomas, plaintiff should be designated parent of primary residence. Defendant was then awarded parenting time in accordance with the following schedule:

Alternate weekends beginning after school (or summer camp) on Friday until after dinner at 8:00 P.M. on Sunday. One day each school week beginning after school until after dinner at 8:00 P.M. or, in the summer, one day each week after camp until after dinner at 8:00 P.M. Equal sharing of each school year recesses such as Winter Recess and Spring Recess. Two full weeks during the summer (which need not be consecutive weeks) during which time each party shall be entitled to reasonable telephone contact with the minor child on a daily basis.

The judge determined, on evidence which we shall discuss in greater detail in the body of this opinion, that (a) plaintiff's "Treasury Direct Account," (b) her Merrill Lynch account, and (c) $51,000 of her 2002 bonus that she used to create an educational account for Thomas were exempt from equitable distribution but that defendant's life insurance policy was not.

The judge also declined to distribute to defendant any portion of (a) a joint 2003 Federal Income Tax refund that plaintiff received after the filing of the complaint and used to pay real estate taxes on the marital residence in which the parties continued to reside; (b) $7500 of marital money used by plaintiff to retain her attorney; and (c) the 2003 bonus earned by plaintiff partly before the filing of the complaint put paid thereafter.

The judge allocated sixty-five percent of the value of the marital home to plaintiff and thirty-five percent to defendant. Sixty percent of the remaining assets subject to distribution were allocated to plaintiff and forty percent to defendant. Defendant was awarded "permanent alimony of $200 per week and limited term alimony of $496 per week for a period of 6 years." The parties were required to bear their own litigation costs.

On appeal, defendant argues

I. [THE JUDGE] FAILED TO FOLLOW CONTROLLING LEGAL PRINCIPLES AND ABUSED HIS DISCRETION WHEN RELEGATING MR. HYDUK TO AN EVERY OTHER WEEKEND PARENT.

II. [THE JUDGE] FAILED TO FOLLOW CONTROLLING LEGAL PRINCIPLES AND ABUSED HIS DISCRETION WHEN DETERMINING EQUITABLE DISTRIBUTION.

A. [The Judge] Erred When Determining Which Assets Were Exempt from Equitable Distribution.

Mr. Hyduk's Pre-Marital Life Insurance Policy

Plaintiff's Treasury Direct Account

Plaintiff's Merrill Lynch Account #85E15760

$51,000 of 2002 Bonus Monies deposited in Thomas' 529 account

B. [The Judge] Erred When Valuing Two of the Parties' Assets for Purposes of Equitable Distribution.

2003 Federal Income Tax Refund

Plaintiff's $7,500 Counsel Fee Retainer and 2003 Bonus Monies

C. [The Judge] erred when allocating the parties' assets.

1. [The Judge] Failed to Follow Controlling Legal Principles, Abused His Discretion and Rendered a Determination Not Based upon Substantial Credible Evidence When He Determined That Plaintiff Had Successfully Rebutted the Presumption That Mr. Hyduk Made a Substantial Financial or Non-financial Contribution to the Acquisition of Assets During the Marriage.

2. The Entire Allocation of Assets must Be Reversed and Remanded.

Division of the Belle Mead Property

Plaintiff's Defined Benefit Pension

III. THE TRIAL COURT'S ALIMONY RULING MUST BE REVERSED.

A. [The Judge] Apparently Confused the Concepts of Limited Duration and Rehabilitative Alimony When Entering the Alimony Award.

B. The Amount of the Alimony Award Is Insufficient to Permit Mr. Hyduk to Maintain the Marital Lifestyle.

C. The Post-divorce Budget Set by the Trial Court Is Insufficient to Permit Mr. Hyduk to Live Reasonably Comparable to the Marital Lifestyle.

D. [The Judge] Failed to Render Sufficient Findings of Fact When Determining the Amount of Alimony.

IV. [THE JUDGE] COMMITTED REVERSIBLE ERROR BY FAILING TO REQUIRE PLAINTIFF TO MAINTAIN LIFE INSURANCE FOR THE BENEFIT OF MR. HYDUK AND THE MINOR CHILD.

V. [THE JUDGE]'S COUNSEL FEE DECISION MUST BE REVERSED.

I

We consider first defendant's objections to the extent of the parenting time provided to him. The custody decision and the designation of plaintiff as parent of primary residence was informed by substantial expert testimony as well as the testimony of the parties themselves. Although plaintiff was the working spouse throughout the marriage and defendant nominally fulfilled the traditional role of homemaker, the judge, while awarding joint legal custody, designated plaintiff as parent of primary residence. In doing so, he made the following findings:

With respect to the extent and quality of the time spent with the child prior or subsequent to the filing of the complaint, the court finds that Plaintiff spent more quality time with the child on weekends, and while the child was growing up. The Defendant chose to absent himself from the family home and not spend time with the child for reasons that are insubstantial. He also refused to pick up the child at the normal dismissal from school, and instead, insisted that he could not pick up the child until later, requiring the child to remain in after care until this litigation was in process. While the child was younger, the Defendant did not pick up the child, but left him in after care or with a nanny until he came home at around 6:00 p.m. There was nothing to prevent Defendant from picking up the child sooner, right after school, yet he failed to do so.

Defendant father has a laissez faire attitude towards the child's homework. Defendant goes over the homework to make sure it is complete, but makes no effort to determine if it is correct. He will not help the child correct any mistakes that may have occurred during the homework, viewing that as the child's responsibility. He asserts that the school needs to know where the child needs assistance or additional work to get the answers correct. In contrast to this, the mother works with the child and helps him see the problems with the homework and to resolve any errors until they are understood by the child.

Both parents will need to be working after this divorce, as both are intelligent and capable of working and they are likely to have equal employment responsibilities, which will affect their ability to be with the child. The child is of school age, and is the only child of the parties. He is currently in 5th Grade.

Defendant does not challenge the award of custody or plaintiff's designation as the parent of primary residence, arguing only that his parenting time with Thomas is insufficient.

We review family court decisions such as this mindful that the judges entrusted with the responsibility for those decisions "have developed a special expertise in dealing with family and family-type matters." In re Estate of Roccamonte, 174 N.J. 381, 399 (2002); see also Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Thomas's best interests control the issue of parenting time. See Fusco v. Fusco, 186 N.J. Super. 321, 326 (App. Div. 1982) (noting that "the answer to the visitation question must be dictated exclusively by concern for the child's best interests"). The determination of those best interests depends, as in any family-type dispute, upon "the particular factual context in which it arises." O'Donnell v. Singleton, 384 N.J. Super. 141, 144 (App. Div. 2006).

Although defendant attempted to paint himself as the primary caretaker for Thomas, the judge accepted evidence to the contrary. The judge's conclusion was amply supported by substantial credible evidence in the record and is binding on appeal. Cesare, supra, 154 N.J. at 412; Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).

The judge considered expert opinions concerning the appropriate extent of defendant's parenting time. He accepted the opinion of the expert produced by plaintiff. Although Dr. Goodman suggested that "there can be ample visitation and near to equal-time sharing," he also opined that equal parenting time "is often a disaster." The judge appropriately considered the factors determining the child's best interest in this context, see N.J.S.A. 9:2-4, and we have no basis to interfere with his conclusion.

Indeed, the extent of parenting time awarded to defendant has been characterized as "[l]iberal," McCown v. McCown, 277 N.J. Super. 213, 214 (App. Div. 1994), and recognized as "common in cases of joint legal custody with only one parent having physical custody." Pascale v. Pascale, 140 N.J. 583, 597 (1995).

The judge's fact finding was based on substantial credible evidence in the record and his legal conclusions were appropriate given that fact finding. Defendant's arguments to the contrary lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(A), (E).

II

We consider next the issues surrounding the judge's distribution of the marital property. The template for equitable distribution decisions requires that a trial court determine first what assets are subject to equitable distribution. Rothman v. Rothman, 65 N.J. 219, 232 (1974). Once that decision is made, the judge must value each distributable asset before equitably distributing it. Ibid. Defendant first objects to the eligibility determinations of the judge with respect to four assets.

The legal principles governing the eligibility of an asset for distribution are well settled. Pre-marital assets are exempt from equitable distribution. Painter v. Painter, 65 N.J. 196, 214 (1974). The burden of immunity is upon the party asserting it. Weiss v. Weiss, 226 N.J. Super. 281, 291 (App. Div.), certif. denied, 114 N.J. 287 (1988). Commingling marital property with exempt property may render the otherwise exempt property subject to distribution. Finally, the appreciation in value of a pre-marital, exempt asset is distributable to the extent the appreciation is to the efforts of the non-owner spouse. Valentino v. Valentino, 309 N.J. Super. 334, 338 (App. Div. 1998). With these principles in mind, we turn to the judge's decision to distribute or exempt from distribution four assets.

Defendant objects to the judge's refusal to declare a life insurance policy owned by him at the time of the marriage to be exempt from distribution. Defendant's only proofs were that he owned a policy at the time of the marriage and that the policy had a value of $13,329 when the complaint was filed. His Case Information Statement represented a payment for all life insurance policies to be $384 per year but defendant produced no other evidence with respect to that policy.

The judge found that defendant had failed to carry his burden of proving the policy was exempt because "he has failed to show that money from the family assets were not used to pay the premium on that policy." Defendant urges that even if marital funds were utilized, the amount was "negligible" and should not affect the exempt status of the policy. We disagree. Nothing in this record indicates the effect of a failure to pay the premium on the policy or on its cash surrender value. Unlike the payment of taxes on profits discussed in Wadlow v. Wadlow, 200 N.J. Super. 372, 381-82 (App. Div. 1985), the failure to utilize marital assets to pay premiums might well have had a drastic effect on the continuation of the policy or its cash surrender value. This record fails to reveal what effect the failure to make one premium payment would have had. For all we can discern, such a failure might have resulted in the cancellation of the policy. In such a case, the use of marital assets to pay premiums cannot be considered a "minimal" contribution. Defendant, of course, had the burden of producing proof of the immune nature of the asset, including any proof necessary to show the contribution was "minimal."

Moreover, in the absence of any proof of the cash surrender value as of the date of marriage, there was no way for the judge to determine the extent of the pre-existing asset and the appreciation of that asset due to the contribution of the non-owner spouse (by the use of marital funds). The judge correctly concluded that defendant had failed to carry his burden of demonstrating that the asset was exempt.

Defendant next challenges the exclusion of plaintiff's "Treasury Direct" account from the equitable distribution calculus. Plaintiff produced testimony that she had a "Treasury Direct" account with a value of $115,000 on September 25, 1990, approximately two weeks before the marriage. When the complaint was filed, the account had a balance of $95,000. The evidence demonstrated that between the date of marriage and the filing of the complaint, at least $250,000 of marital funds were added to the account. There was no attempt to trace the funds deposited and withdrawn, although it was conceded that some of the withdrawals were utilized to purchase the marital home. The judge did not find whether plaintiff had a specific intent to retain the original funds in the account as her separate property. See Ryan supra, 283 N.J. Super. at 24-25. He said only that the account "in the amount of $95,000, was established in 1990, prior to the marriage, and was not changed throughout the marriage." That statement was not supported by the evidence, failing to consider the deposits into and withdrawals from the account.

Accordingly, we remand to the trial court for reconsideration of the eligibility of the funds left in the account. The judge will be required to decide if the actions of the parties evidence a specific intent that the funds, to the extent they did not fall below the amount existing as of the date of the marriage, were intended to remain the specific property of plaintiff or whether the commingling of the assets evidence a contrary intent. To the extent the original monies were intended to remain plaintiff's separate estate, the judge will be required to determine if plaintiff can demonstrate that those funds remain in the account, remembering always that the burden of proof rests on plaintiff. The judge's determination should, of course, be accompanied by specific findings of fact and conclusions of law as required by R. 1:7-4.

We reach a similar conclusion with respect to the judge's determination that plaintiff's Merrill Lynch account was a pre-marital asset exempt from distribution. The account had a date-of-complaint value of $227,809 and was funded entirely from the proceeds of the sale of her pre-marital New York City condominium. That condominium was purchased in 1983, seven years before the marriage, and sold in August 1999, nine years thereafter. The judge's conclusion that the asset sold was pre-marital and completely funded the account is supported by substantial credible evidence, including that of the wife's accounting expert, Leo Zatta. We recognize that the sale of the house after the marriage does not affect the analysis since the date of sale of an otherwise immune asset does not affect its immune status. Painter, supra, 65 N.J. at 214; Valentino, supra, 309 N.J. Super. at 339.

The judge concluded that the asset "was a pre-marital asset not contributed to during the marriage," but the evidence does not support that conclusion. Defendant was not working during this period and it seems uncontested that the funds used to carry the condominium came from marital assets. A non-owner's contribution to an asset may consist of a mortgage pay-down using marital funds. Griffith v. Griffith, 185 N.J. Super. 382, 385 (Ch. Div. 1982). We acknowledge plaintiff's argument that marital funds were used to maintain defendant's pre-marital asset so that her use of marital money to pay the condominium mortgage was balanced by defendant's use of marital funds to make payments toward the Piscataway home. The judge made no findings with respect to these issues. However, even if plaintiff's use of marital money to pay down her condominium had been balanced by defendant's use of marital money to pay down his premarital property, it does not follow that plaintiff is entitled to hold her premarital property free of any interest of defendant. Rather, in the absence of some equitable consideration not apparent to us without an analysis from the trial judge, it appears that the parties would each be entitled to share in the appreciation of the others pre-marital property to the extent marital funds contributed to appreciation. Accordingly, we remand to allow the court to consider these issues in determining defendant's entitlement to a portion of the Merrill Lynch account, R. 1:7-4.

The final issue is the judge's exclusion of a $51,000 account, funded by plaintiff's 2002 bonus and established pursuant to 26 U.S.C.A. 529, for Thomas's tuition expenses. Defendant has claimed that the asset is distributable but has also represented that any portion distributed to him will be placed by him in an account for Thomas's future educational use. Under those circumstances, we have no need to determine defendant's entitlement. The entire balance of the account must be dedicated to Thomas's education and we remand to the trial court for the implementation of that result either by adding defendant to the account, restricting plaintiff's use of the asset under conditions satisfactorily ensuring compliance with that restriction, requiring plaintiff to notify defendant of any intended withdrawal or imposing such other condition considered appropriate by the judge.

III

We turn next to defendant's assertion of error in the allocation of the assets subject to distribution. He identifies three specific assets and also challenges the overall allocation. The first asset challenged is the parties' 2003 Federal Income Tax Return in the amount of $4123. The judge made no allocation of that sum because the judge found that sum "was utilized [by plaintiff] to pay for real estate taxes for the parties' marital residence for which both defendant and plaintiff were using and for which they are jointly liable." The parties agree that the funds were received by plaintiff, who used them for the payment of the real estate taxes paid in 2004 after the divorce complaint was filed. Because the parties were living together, there was no formal pendente lite order. However, it is clear that plaintiff's continued payment of all family expenses after filing the complaint was essentially equivalent to paying her expenses and pendente lite expenses for the husband had he lived separately.

Marital funds are inappropriately used for that purpose. See Weiss, supra, 226 N.J. Super. at 291 (noting that a supporting spouse "cannot use marital assets to discharge support obligations and then claim that those marital assets are unavailable for equitable distribution"); Lynn v. Lynn, 165 N.J. Super. 328, 345 (App. Div.) (noting that a supporting spouse "should not have been able to use a marital asset to defray" a support obligation "and thereby defeat his wife's interest in the asset at the time of the equitable distribution"), certif. denied, 81 N.J. 52 (1979). The fact that no formal support order was entered does not affect the analysis.

The same analysis applies to the marital funds utilized by plaintiff for her attorney's fees. Plaintiff concedes that the funds she utilized for fees would otherwise have been spent on marital expenses. Plaintiff attempts to justify the utilization of these funds for her separate purposes because she claims to have given defendant $66,000 during the marriage which he may have used to pay his own fees. The judge, however, did not address that claim when resolving defendant's claim for a portion of marital funds used to retain plaintiff's attorney. In the absence of a cross-appeal asserting an entitlement to a return of some of the $66,000 claimed to have been given to defendant, the transfer, to the extent it was made, was nothing more than a gift. Defendant was entitled to a share of the marital funds utilized by the wife for her own purposes.

Finally, defendant claims entitlement to a percentage of the 2003 bonus plaintiff received. Plaintiff concedes that the portion of the bonus earned from January 2003 to August 6 2003, when the complaint was filed (or seven-twelfths of the total bonus) was a marital asset. The amount of that bonus was approximately $56,000. Accordingly, defendant, on the judge's ultimate allocation of assets, would have been entitled to seven-twelfths of forty percent of that bonus or $13,066.66. The judge made no separate allocation, however, and distributed the checking account into which the funds were placed as of the date of trial. That balance was $44,074, so that defendant received $17,629.60 (forty percent of $44,074).

Plaintiff asserts that defendant's share of the account is more than the $13,066.66 he would have been entitled to from the bonus (seven-twelfths of $56,000 time forty percent), so that no cause for complaint exists. We agree. Even if, as defendant asserts without evidential support, the date-of-complaint value of the account was $4655, he would not be entitled to more than the judge distributed to him. At most he would have been entitled to his share of the asset ($13,066.66) plus forty percent of the date-of complaint value ($1862) for a total distribution of $14,928.67. He received more than that sum and makes no argument that funds were improperly distributed from the account before the date fixed for valuation. Having received more than his entitlement, defendant may not object to the distribution from this account.

Defendant also objects to the allocation of the distributable property. The judge allocated thirty-five percent of the marital home to him together with forty percent of the remaining assets. Defendant questions the judge's conclusion that he failed to contribute to the marital home and that plaintiff had rebutted the statutory presumption of N.J.S.A. 2A:34-23.1 "that each party made a substantial financial or non-financial contribution to the acquisition of income and property while the party was married." We disagree. The judge's findings with respect to defendant's contributions, both to the home and the marriage, are well supported. Defendant cannot complain because the judge found him less credible than plaintiff. See In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (noting that deference to judicial fact finding is especially appropriate "when the evidence is largely testimonial and involves questions of credibility"). In any event, we note that despite the finding respecting the presumption, the distribution to defendant is, for all practical purposes, substantial.

A trial court has broad discretion regarding the division of marital assets. Wadlow, supra, 200 N.J. Super. at 377. An award of equitable distribution will be affirmed "as long as the trial court could reasonably have reached its result from the evidence presented and the award is not distorted by legal or factual mistake." La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). An unequal distribution is no basis to disturb the trial judge's division of property. Rothman, supra, 65 N.J. at 232 n.6; DeVane v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995). Moreover, the party challenging the distribution bears the burden of demonstrating an abuse of discretion. See Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978). Our independent review of the record convinces us that the distribution of the assets was well within the judge's discretion and that there is no basis for our interference.

We add only that although defendant sought to portray himself as having contributed substantially in non-financial ways to the home, the judge, as was his right, determined not to accept that testimony. The judge considered all of the statutory elements for equitable distribution. His extensive factual findings were supported by substantial credible evidence and his conclusions were appropriate.

We also address briefly defendant's contention that the court chose a faulty methodology when distributing plaintiff's pension plan. The pension plan was valued at $353,027.88 of which $224,654.90 was eligible for distribution. Defendant received forty percent of the eligible amount by way of a Qualified Domestic Relations Order (QDRO). Defendant objects, arguing that distribution of a defined benefit plan may not be accomplished with reference to present value unless that value is offset against other marital assets. See Risoldi v. Risoldi, 320 N.J. Super. 524, 539 (App. Div.), certif. denied, 161 N.J. 335 (1999).

Defendant's argument fails to recognize, however, that the benefit plan was characterized by the parties' joint expert as "act[ing] like a Defined Contribution Plan. . . . The value of the benefits at any point in time is the account balance at that time." In such a plan, the value depends on contributions and defendant should not, therefore, be entitled to any increase as the result of post-divorce contributions by plaintiff. See Marx v. Marx, 265 N.J. Super. 418, 426 (Ch. Div. 1993) (quoting Cooper v. Cooper, 808 P. 2nd 1234, 1241 (Ariz. Ct. App. 1990). This plan must be distinguished from the defined benefit plan where the increase in value post-divorce is only partly based on contributions. See Risoldi, supra, 320 N.J. Super. at 533-35.

IV

The next issue to be addressed is alimony. Alimony is authorized by N.J.S.A. 2A:34-23 and is governed by the factors enumerated in N.J.S.A. 2A:34-23(b). Alimony may be permanent, limited duration, rehabilitative or reimbursement. N.J.S.A. 2A:34-23(c). Limited duration alimony is available to a dependent spouse who has contributed to a relatively short term marriage and who "has the skills and education necessary to return to the workforce." Gordon v. Rozenwald, 380 N.J. Super. 55, 65-66 (App. Div. 2005). Although the amount of the limited duration alimony may be modified based upon changed circumstances or the non-occurrence of events assumed by the court in awarding it, the length of limited duration alimony can be changed only in "unusual circumstances." N.J.S.A. 2A:34-23(c).

On the other hand, rehabilitative alimony is an award "for a short, but specific and terminable period of time, which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self support." Weber v. Weber, 268 N.J. Super. 64, 71 (App. Div. 1993) (quotations omitted). It is awarded to permit the recipient to seek and develop within a precise time period the skills necessary to obtain suitable employment. Ibid. The award of "[r]ehabilitative alimony is

. . . appropriate . . . in instances in which the marriage is relatively short and the recipient spouse is capable of full employment based on experience, additional training or further education." Heinl v. Heinl, 287 N.J. Super. 337, 348 (App. Div. 1996) (citing Finelli v. Finelli, 263 N.J. Super. 403, 406 (Ch. Div. 1992)). Both the amount of the rehabilitative alimony and the length may be adjusted depending on the actual ability of the dependent spouse to secure financial independence. Crews v. Crews, 164 N.J. 11, 31 (2000).

Here, the judge addressed all of the appropriate factors, accepted defendant's proffered expert opinion that defendant could earn $30,000 per year initially and that he would ultimately be able, as the wife's expert opined, to earn $70,000 per year. The judge addressed defendant's financial needs and, on the evidence, determined defendant required $696 per week or $438 per week net of taxes. He then awarded $200 per week in permanent alimony and $496 per week in limited term alimony for six years "to enable [defendant] to move from an entry level employment position to pay more commensurate with his education, training and background. In addition, the judge awarded ten percent of plaintiff's annual bonus and made plaintiff responsible for all of Thomas's medical, educational, and other financial needs. Nevertheless, the judge described a portion of the award as "limited duration" alimony. It appears that this may have been an inadvertent error in terminology. We have considered exercising our original jurisdiction, R. 2:10-5, to correct that perceived error. Nevertheless, in deference to the trial judge, we have decided to remand this issue to the trial judge to afford him an opportunity to explain, if we are mistaken, why limited duration, as opposed to rehabilitative, alimony is appropriate here.

We reject defendant's claim that the amount of the alimony is inadequate. Defendant's claim is based on a belief that the judge failed to include a savings component when considering his lifestyle, see Glass v. Glass, 366 N.J. Super. 357, 379 (App. Div.) (noting that savings is an appropriate component of alimony), certif. denied, 180 N.J. 354 (2004), and that the judge improperly treated several line items, awarding only $50 per month for gift expenses and $3 per month for charitable contributions.

As to the savings component, we note the testimony by plaintiff that any savings from the marital estate came solely from her bonus because her base income alone was insufficient to allow any savings. The judge's obvious acceptance of that testimony, coupled with the award of a percentage of the wife's bonus, provides a more than adequate savings component to the alimony award. Defendant's argument with respect to the adequacy of the gift and charitable contribution components of the award is without merit. R. 2:11-3(e)(1)(A), (E).

V

Several miscellaneous items require brief comment. Defendant complains that the judge incorrectly failed to secure her financial obligation to him and to Thomas through a life insurance policy. The decision to require security for financial obligations imposed by a Judgment of Divorce is discretionary. See N.J.S.A. 2A:34-23 (noting that a court "may" provide for security for financial obligations); Claffey v. Claffey, 360 N.J. Super. 240, 264 (App. Div. 2003) (noting that the appropriate amount of the insurance is discretionary to secure alimony obligation). We agree that there was no requirement to secure plaintiff's obligations toward Thomas, who presumably is the intended beneficiary of her estate.

Nevertheless, plaintiff has a substantial financial obligation to defendant and the judge failed to consider defendant's entitlement to security. Plaintiff argues that this matter was not raised below and should not now be addressed. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We are unable to resolve that claim on this record. Even if it was not raised below, however, because the matter is being remanded, we think the interests of justice require that the court consider requiring plaintiff to secure her obligation to defendant for alimony. No additional testimony would be necessary. The judge, of course, should make the findings and draw the conclusions required by R. 1:7-4 to explain his decision respecting security for the alimony provision.

Finally, we reject defendant's assertion that the court erred in failing to require plaintiff to contribute to his fees. The decision regarding counsel fees is discretionary, Yueh v. Yueh, 329 N.J. Super. 447, 460 (App. Div. 2000), and will not be disturbed in the absence of an abuse of discretion. Chestone v. Chestone, 285 N.J. Super. 453, 468 (App. Div. 1995). The court appropriately considered the factors enumerated in R. 5:3-5(c); thus we conclude that the judge's analysis was appropriate, that his fact finding was, under the circumstances of this case, sufficient to discharge his obligations and that his discretionary refusal to compel a contribution to defendant's fees was reasonable. Defendant's arguments to the contrary lack sufficient merit to justify further discussion in a written opinion. R. 2:11-3(e)(1)(A), (E).

In short, we reverse and remand for the judge to consider (a) the equitable distribution treatment of plaintiff's "Treasury Direct" account and plaintiff's Merrill Lynch account; (b) the treatment of the 529 account, but only to the extent of whether further conditions should be attached to the use of the account; (c) the refusal to distribute the 2003 tax refund used by plaintiff for marital expenses and the marital funds used to pay plaintiff's litigation fees; (d) the designation of the non-permanent alimony award as "limited duration" alimony; and (e) the failure of the judge to compel plaintiff to secure her alimony obligation by insurance. In all other respects we affirm the May 11, 2005, judgment.

Affirmed in part; reversed and remanded in part.

 

We have omitted sub-paragraphs relating to this first argument that referenced the components of a parenting time award.

The cases which deal with commingling of assets treat situations in which premarital assets are commingled with jointly held assets. See, e.g., Pascarella v. Pascarella, 165 N.J. Super. 558, 564 (App. Div. 1979). The parties have not cited any reported case dealing with the precise factual situation involved here: the commingling of marital assets with exempt assets in an otherwise exempt account. It seems clear, though, that if the commingling effectuates an intent to treat all of the assets as marital so that the otherwise exempt assets are gifted and held by one spouse in trust for another, the entire account becomes subject to distribution. See N.J.S.A. 2A:34-23(h) (rendering inter-spousal gifts subject to distribution). Similarly, if the spouse holding title to the account cannot trace the account balance to premarital, immune assets, there would be a failure of proof respecting the immune nature of the account, which would then, perforce, be distributable. See Ryan v. Ryan, 283 N.J. Super. 21, 24-25 (Ch. Div. 1993).

Plaintiff has not cross-appealed from the failure to award her an interest in the appreciation of defendant's pre-marital asset.

(continued)

(continued)

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A-5578-04T1

August 1, 2007