NORMAN SCHLEIFFER v. LOIS SCHLEIFFER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1880-11T4

NORMAN SCHLEIFFER,

Plaintiff-Appellant,

v.

LOIS SCHLEIFFER,

Defendant-Respondent.

____________________________________

December 6, 2012

Submitted November 14, 2012 - Decided

Before Judges Yannotti and Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-932-07.

Corinne Campi, attorney for appellant.

Maybruch & Zapcic, L.L.C., attorneys for respondent (Andrew M. Zapcic and Matthew R. Goode, on the brief).

PER CURIAM

Plaintiff Norman Schleiffer appeals from "Page 4-6, paragraph B" and "Page 6-7, paragraph C" of the Family Part's November 7, 2011 written opinion on remand. Notwithstanding the absence of an order or judgment,1 we elect to address plaintiff's contentions on the merits in order to dispose of this long-delayed matter. After reviewing the record and the proceedings on remand, we affirm.

I.

The parties were married in 1986 and divorced pursuant to a judgment of divorce dated November 17, 2009. Cross-appeals were filed from that judgment, and we affirmed substantial portions of it. Schleiffer v. Schleiffer, No. A-1935-09 (App. Div. June 14, 2011). However, we reversed in part, and remanded for further consideration on particularized issues relating to (1) the allocation of the balance of plaintiff's 401(k) account, (2) the imposition of a penalty for plaintiff's early withdrawal of proceeds from his 401(k) account, (3) the credit, if any, to be awarded plaintiff for his alleged payment of defendant's post-complaint credit card expenses, (4) the apportionment of responsibility for unreimbursed medical expenses, and (5) the imposition of a lien upon defendant's estate pending the purchase of a $100,000 life insurance policy. Familiarity with our earlier opinion is assumed.

On remand, the Family Part judge followed our mandate and fully explained his rationale for his determinations. On this appeal, plaintiff takes issue with only the following:

POINT ONE: IT IS AN ABUSE OF THE COURT'S DISCRETION TO AWARD DEFENDANT $18,500 REPRESENTING ONE HALF OF THE FEDERAL TAXES PAID BY THE PARTIES IN 2006 AS A PENALTY FOR AN EARLY WITHDRAWAL OF THE PLAINTIFF'S 401K.

POINT TWO: THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO AWARD MALLAMO CREDITS TO HUSBAND FOR WIFE'S FAILURE TO CONTRIBUTE TO THE MARITAL EXPENSES DURING THE PARTIES' DIVORCE LITIGATION AND THROUGH TRIAL AND BY FAILING TO AWARD CREDITS TO HUSBAND AND/OR PAYING WIFE'S POST COMPLAINT CREDIT CARD DEBT.

We are not persuaded by these contentions, and in light of our limited role in the review of Family Part determinations, we discern no basis to disturb the conclusions of the remand court.

II.

In Milne v. Goldenberg, 428 N.J. Super.184, 197-98 (App. Div. 2012) we recently restated our commitment to the principle that the work of the Family Part will not be disturbed absent compelling circumstances:

Generally, the special jurisdiction and expertise of the family court requires that we defer to factual determinations if they are supported by adequate, substantial, and credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Accord N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). It is well settled that Family Part factfinding receives particular deference because of "the family courts' special jurisdiction and expertise in family matters," Cesare, supra, 154 N.J. at 413, which will be disturbed only upon a showing that the findings are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence'" to ensure there is no denial of justice, Platt v. Platt, 384 N.J. Super. 418, 425 (App. Div. 2006) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Also, we accord great deference to discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). "'[J]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court.'" Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007) (quoting Higgins v. Polk, 14 N.J. 490, 493 (1954)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). However, a judge's legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

In this case, the remand judge's factual findings were well-tethered to the evidence, his legal conclusions comported with applicable precedent, and his discretionary decisions were rationally explained.

In fashioning an equitable allocation to account for the approximate $37,000 in federal income taxes paid in 2006 due in large measure to plaintiff's unilateral withdrawal of proceeds from his 401(k) account, the remand court reviewed and analyzed the trial evidence and post-trial submissions of the parties. From that, the court recognized that some portion of the tax obligation might very well have been an early withdrawal "penalty," and it ultimately concluded that the evidence strongly suggested that the components of the overall tax obligation were mainly due to the machinations of plaintiff. Accordingly, it was within the bounds of reason for the court to call the entire tax obligation a "penalty" in allocating responsibility for its creation to plaintiff. We are unable to conclude that, notwithstanding what may have been the utilization of imprecise (and from plaintiff's perspective, inflammatory) language, the Family Part deviated from principled discretion in awarding defendant a credit of one-half of the $37,000 "penalty."

In like vein, we conclude that the Family Part did not err in refusing to award plaintiff credits in the nature of those contemplated by Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995). The Family Part judge examined the paucity of documentary evidence from both parties regarding their payment of expenses pendente lite. The judge concluded that in the testimonial battle between plaintiff and defendant on this issue, defendant's credibility trumped plaintiff's. Since the judge believed defendant's contention that her income was used for household and child-related expenses, we have no occasion to disturb the determination that a credit in plaintiff's favor was neither necessary nor appropriate.

To the extent that we have not specifically addressed any remaining contentions advanced by plaintiff, it is because they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 "An appeal as of right may be taken only from a final order or judgment. It may not be taken from an opinion." Saltzman v. Saltzman, 290 N.J. Super. 117, 123 (App. Div. 1996).