EVETT SHULMAN v. STUART WEINERAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-1892-10T4
EVETT SHULMAN, f/k/a
March 15, 2012
Submitted December 19, 2011 - Decided
Before Judges Ashrafi and Fasciale.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1884-04.
Ira M. Senoff, Esq., LLC, attorney for appellant/cross-respondent (Mr. Senoff and Jeanette Russell, on the brief).
Caruso & Baxter, P.A., attorneys for respondent/cross-appellant (Gregory S. Baxter, on the brief).
Divorced in 2005, the parties now cross-appeal from post-judgment orders addressing child support, alimony, and other financial disputes. The primary issue raised by the husband's appeal is whether he should be required to provide another forensic accounting of his businesses when such an accounting was done at the time of the divorce and no irregularities were found. The wife challenges the trial court's denial of her request for enforcement and sanctions because the husband has not complied with provisions of the parties' marital settlement agreement and subsequent enforcement orders. We affirm in part and reverse in part the Family Part's post-judgment orders.
Defendant Stuart Weiner and plaintiff Evett Shulman were married in 1985. They were divorced in December 2005. They have three sons, who at the time of the divorce were ages 17, 15, and 9. Their matrimonial settlement agreement was incorporated into the final judgment of divorce. The following provisions of that agreement are relevant to issues raised in this appeal.
1) Paragraph 3.1 provides that the husband will pay permanent alimony to the wife of $6,200 per month, based upon the husband s annual income of $200,000 and the wife s imputed income of $30,000.
2) Paragraph 4.1 provides that the husband will be the parent of primary residence for the two older sons, and the wife will be the parent of primary residence for the youngest son.
3) Paragraph 4.9 provides that no direct child support will be paid by either parent.
4) Paragraph 4.12 provides that the husband is the custodian of each son's savings bonds and Smith Barney college savings account, and it requires him to provide account statements to the wife. It also provides that any educational funds not exhausted at the time of college graduation belong to the child.
5) Paragraphs 4.6(b) and 4.11 provide that the husband will pay 60% of work-related childcare expenses.
6) Article V addresses equitable distribution of the parties' marital assets, including: the marital home, which was distributed to the wife subject to existing mortgage debts; the husband's business entities and the real estate associated with those businesses, which assets remained the property of the husband; other commercial real estate located in Brooklyn, New York, from which both would receive income and equal cash distribution at the time of sale; retirement accounts, which were divided between the two; and specific larger items of personal property distributed to one or the other.
7) Paragraph 5.1(K) provides that the husband will return to the wife personal property listed in Exhibit B of the agreement, and that the wife will return to the husband property listed in Exhibit C.
8) Paragraph 11.1 states that the parties have received discovery and other information from each other, that they have used joint experts to evaluate the marital and business assets and the husband's income, and that each has also hired an accounting expert to make such determinations.
The parties expressly acknowledged that they were represented by counsel and had entered into the agreement voluntarily and knowingly, and that the agreement was fair, equitable, and satisfactory.
After the divorce, the parties returned to court several times for enforcement actions on numerous items of expenditures for the children and other matters still in dispute. Several orders were entered addressing continuing financial and other disputes.
About three years after the divorce, the wife notified the husband that she could no longer keep the youngest son in her home because of serious problems in their relationship. At her request, the child moved to the husband's home in May 2009. The husband then attempted unsuccessfully to obtain her consent for entry of an order formally transferring residential custody of the youngest son to him and requiring that the wife pay child support. All three sons resided with the husband from May 2009 until the time of the motions relevant to this appeal without payment of any child support by the wife. During that time, the husband continued to pay the wife $74,400 annually in alimony.
On June 7, 2010, the husband filed a motion for transfer of residential custody of the youngest son, for child support and other financial contributions from the wife for the youngest son, and for related items of relief. In response, the wife filed a cross-motion also seeking a variety of relief, including an increase in alimony, a new forensic accounting and cash flow analysis of the husband's business entities, and other discovery to determine his current income. The wife also sought an accounting of the sons' Smith Barney college accounts and savings bonds, and an order awarding her one-half of any post-graduation balance of those funds.
The Family Part heard argument on the motions and entered an order on August 13, 2010, addressing more than forty items of relief sought by the two parties. Among other things, the order: (1) designated the husband as the primary residential parent of the youngest son; (2) ordered that child support be determined and paid by the wife beginning from June 7, 2010, the date that the husband filed his motion; (3) compelled a forensic accounting and cash flow analysis of the husband's primary business entity, including authorizing subpoenas to employees of the business; (4) found that the wife was entitled to one-half of any post-graduation balance of the sons Smith Barney college savings accounts and ordered the husband to make a full accounting of those funds; and (5) ordered sanctions of $100 per day if the husband failed to deliver to the wife personal property described in Exhibit B of their marital settlement agreement.
The husband filed a timely motion for reconsideration objecting to provisions in ten out of forty-two decretal paragraphs of the August 13, 2010 order. In response, the wife filed a cross-motion seeking thirteen items of further relief. Without holding oral argument again, the Family Part reconsidered and modified some parts of its prior order but confirmed other parts. By an order dated October 29, 2010, the Family Part: (1) declined to reconsider the husband's motion to calculate child support retroactively to May 2009, when the youngest son had moved to his home; (2) confirmed its prior order compelling discovery from the husband's primary business entity and expanded the scope of discovery to include his other business entities; (3) reversed itself and found that the wife did not have an interest in the sons' college accounts but allowed her to serve subpoenas duces tecum upon the sons to obtain information about disbursements and expenditures from those accounts; (4) reversed itself and declined to impose sanctions against the husband for failure to return the wife s personal property; (5) denied without prejudice the wife s request for reimbursement of work-related daycare expenses; and (6) denied the wife s request for attorney s fees.
Both parties filed notices of appeal, the husband from designated paragraphs of both the August 13 and October 29, 2010 orders, and the wife from designated paragraphs of the latter order.
We begin by addressing the husband's appeal from the provisions of the two orders compelling a forensic accounting and cash flow analysis of his business entities and authorizing subpoenas to the businesses for production of documents and the testimony of an employee. The court's objective was to confirm the husband's current income.
The provisions of the parties' 2005 marital settlement agreement and divorce judgment resulted in the following net annual income for each party at that time:
husband $125,600 (gross income of $200,000 as established by a forensic accounting accepted by both parties minus $74,400 in permanent alimony to be paid to the wife), and
wife $104,400 (imputed income of $30,000 plus $74,400 in permanent alimony).1
The 2010 cross-motions included information about the parties' current net incomes as follows:
husband $177,569 (gross income of $251,969 as reported in his 2009 federal income tax return minus $74,400 in alimony paid to the wife),2 and
wife $103,400 (the wife's declared income of $29,000 as shown on her current case information statement (CIS) plus $74,400 in alimony received from the husband).3
Thus, a comparison of the past and current incomes of the parties showed that the husband's net income had increased by about $52,000 while the wife's had remained essentially the same as at the time of the divorce.
Pointing to the husband's increased income and alleging that his earnings from his businesses might be higher than shown in his tax returns, the wife sought an increase in her alimony payments. The husband contended the increase in his income did not provide grounds for ordering discovery of his businesses under the applicable law. He argued against a forensic accounting and cash flow analysis of his business entities because: (1) the wife did not make a prima facie showing of changed financial circumstances warranting a hearing or discovery in support of her motion to increase alimony; (2) a forensic accounting and a cash flow analysis were satisfactorily completed just five years earlier by joint and individually-hired experts for both parties, and there were no irregularities found as to his reporting of income; (3) in conjunction with the current motions, he reported increased current income that is consistent with his 2005 business income, and nothing in the record leads to a suspicion of concealment of income or other deception; (4) his primary business entity, a prosthetics and orthotics production company, receives its revenues from insurance companies and does not do a cash business that can facilitate concealing of income; (5) an IRS audit of his business found no underreporting of income; and (6) the extensive discovery ordered by the court is unnecessary, will burden and disrupt the operation of his business, and inappropriately converts these post-judgment motions into a mini-trial.
In response, the wife argued that probing discovery is necessary when a supporting spouse is a business owner because tax returns and a CIS are inadequate to verify actual income. See Donnelly v. Donnelly, 405 N.J. Super. 117, 128-29 (App. Div. 2009) ("[A] self-employed obligor . . . [is] in a better position to present an unrealistic picture of his or her actual income than a W-2 earner." (quoting Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006)). The wife suspected that the husband has greater income than his tax returns reveal, and she alleged that his businesses pay for some of his personal expenses.
The Family Part ordered the discovery requested by the wife because it found indications in the motion record that the husband's current reported income might be understated. In its order of August 13, 2010, the court justified its discovery order as follows:
Defendant [husband] does not deny he purchased a home in excess of $800,000 in 2008 after the divorce. Plaintiff [wife] indicated that his mortgage is approximately $500,000. His Case Information Statement indicates he has $17,000 in expenses, including a mortgage of $4,000. His CIS also indicates he has liquid assets of about $40,000. Based on his stated salary, his expenses would exceed his income.
On appeal, the husband argues that the Family Part's understanding of his income and expenses was mistaken and contrary to the documentary record. He states that his tax returns and CIS show that his net income permits payment of all expenses listed on his CIS with a surplus of $792 per month, thus demonstrating that his income is not understated in comparison to his monthly expenses. The husband also points to the sources of borrowed funds which he used to purchase his new home. Furthermore, he argues that discovery of his business income should not be ordered even if he is earning substantially more income than at the time of the divorce. Having reviewed the record, we agree with the husband's arguments.
We acknowledge that the Family Part is granted discretion in awarding financial support in a matrimonial action, including whether the amount of alimony should be modified, Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig, supra, 384 N.J. Super. at 21, and what amount of child support is appropriate when the child support guidelines4 are not applicable, Pascale v. Pascale, 140 N.J. 583, 595 (1995). "If consistent with the law, such an award 'will not be disturbed unless it is manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (quoting Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)).
Designated forms of pre-trial discovery are permitted for matrimonial cases, R. 5:5-1, but discovery is not automatically available for post-judgment motions. Leave of the court is required. Welch v. Welch, 401 N.J. Super. 438, 444 (Ch. Div. 2008); see R. 5:5-1(d). When a post-judgment motion involves a dispute concerning financial support, the moving and opposition papers must be accompanied by a current CIS and the relevant prior CIS. R. 5:5-4(a); Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 5:5-2 (2012). The purpose of the CIS is to facilitate resolution of the dispute by the parties and their attorneys and to provide necessary financial information to the court to rule upon the motion. In its discretion, the court may permit additional discovery.
We will generally defer to a trial court's determinations regarding discovery, and we review those determinations under the abuse of discretion standard. See Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512-13 (1995); Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). 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) (internal quotation marks and citation omitted).
The discovery ordered in this case springs from the wife's allegation and the court's suspicion that the husband's income may be greater than he has reported. The husband's income is relevant to two aspects of the current cross-motions the wife's motion to increase alimony and the husband's motion for child support from the wife. We will address alimony and child support separately.
In Lepis v. Lepis, 83 N.J. 139, 157 (1980), the Court established a two-step process for a post-judgment motion to modify alimony:
The party seeking modification has the burden of showing such "changed circumstances" as would warrant relief from the support or maintenance provisions involved. A prima facieshowing of changed circumstances must be made before a court will order discovery of an ex-spouse's financial status.
[Emphasis added, internal citation omitted.]
A prima facie showing to increase alimony, according to the Court, requires evidence "that changed circumstances have substantially impaired the ability [of the dependent spouse] to support himself or herself." Ibid. The Court also said that a motion for modification of support must be accompanied by "full disclosure of the dependent spouse's financial status, including tax returns." Ibid.
In Miller v. Miller, 160 N.J. 408, 420 (1999), the Court held that the same standard applies to modification of a support provision contained in a marital settlement agreement as to the original determination of financial support in a judgment of divorce. "When support of an economically dependent spouse is at issue, the general considerations are the dependent spouse's needs, that 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." Ibid. (quoting Lepis, supra, 83 N.J. at 152). When permanent alimony has been awarded, the dependent spouse's "needs" are described as "continued maintenance at the standard of living they had become accustomed to prior to the separation." Crews v. Crews, 164 N.J. 11, 24 (2000) (quoting Lepis, supra, 83 N.J. at 150).
In many cases, the primary focus of a motion to increase alimony is changed circumstances that have diminished the dependent spouse's ability to support herself or himself at a standard of living reasonably comparable to the marital standard. Crews, supra, 164 N.J. at 28-29; Lepis, supra, 83 N.J. at 157. In other cases, the dependent spouse might prove changed circumstances with proof that the original amount of alimony was insufficient to maintain her or him at the marital standard of living but that the supporting spouse's ability to provide financial support has improved since the time alimony was awarded. Crews, supra, 164 N.J. at 33.
But that alternative form of showing changed circumstances does not mean that alimony may be increased simply because the income of the supporting spouse has increased since the time of the divorce. Id. at 29. After the termination of the marriage, a dependent spouse is not entitled to the good fortune or economic fruits of increased income or assets of the ex-spouse. Ibid. The dependent spouse is only entitled to maintain a standard reasonably comparable to the time of the marriage.
In this case, the wife did not present evidence tending to show that she could not support herself at a standard of living comparable to her accustomed standard during the marriage. A combination of her own income, the permanent alimony ordered by the divorce judgment, and use of the assets she received by equitable distribution provided sufficient means at the time of the divorce to support her at the marital standard of living. A comparison of her prior CIS and her current CIS shows that the same financial resources were still available and sufficient six years later to support her at the marital standard of living.
The husband has persuasively demonstrated that the wife's 2010 CIS overstated her monthly expenses and double-counted her home mortgage expense. With the correction of those items, her expenses were less in 2009-2010 than the gross income of at least $103,400 she received through alimony and her part-time employment.5 The wife's 2010 CIS contained generous allotments for personal expenses such as food and restaurants, vacations, and personal care items. In comparison to the expenses of the entire family of five that she declared in her 2004 joint CIS, the wife's 2010 list of expenses demonstrated a standard of living as financially comfortable as during the marriage.6 Her stable income through the sources provided in the divorce judgment was not shown to be inadequate to meet the wife's expenses.
Having failed to show that she is unable to support herself in an economic lifestyle comparable to the lifestyle during the marriage, the wife cannot claim entitlement to an increase in alimony merely because the husband's income has grown. Therefore, even if the husband has understated his income, which the evidence on this record does not suggest, the wife is not entitled to an increase in alimony. Without a prima facie showing of changed circumstances to support modification of alimony in accordance with Lepis and Crews, the wife was not entitled to discovery of the husband's business income. Crews, supra, 164 N.J. at 28; Miller, supra, 160 N.J. at 420; Lepis, supra, 83 N.J. at 157.
In the trial court, the focus of the wife's argument for discovery was alimony. On appeal, she argues instead that the trial court's discovery order is appropriate to determine the husband's true income for purposes of his motion seeking child support from her. The husband contends that he has provided detailed and accurate information about his current income for purposes of his motion for child support. We agree that a forensic accounting, a cash flow analysis, and subpoenas to his businesses are not needed to determine child support.
The trial court's original August 13, 2010 order included provisions requiring submission of relevant financial documentation to determine a proper award of child support. The order required that within thirty days the parties must:
submit to the Court their three most recent and consecutive pay stubs, full and complete copies of their Federal and State income tax returns for the last three years, last calendar year W-2 statements, 1099s and K-1 statements . . . to calculate child support . . . .
That documentation was consistent with the financial information normally required to determine child support. See Isaacson v. Isaacson, 348 N.J. Super. 560, 586 (App. Div.), certif. denied, 174 N.J. 364 (2002).
When the supporting spouse is a business owner, additional discovery may be warranted when there is an allegation of concealment of income, but the wife's vague distrust was not a sufficient basis to order wholesale discovery of the husband's business affairs some five years after the divorce. See ibid.; see also Ritt v. Ritt, 52 N.J. 177, 179 (1968) (advising caution because of a higher risk of abuse of discovery in emotionally charged matrimonial proceedings). Child support motions should not be burdened with prolonged and expensive discovery requirements in the absence of evidence of false reporting of income or a dispute about the ability of a high-earning parent to support his children. See Isaacson, supra, 348 N.J. Super. at 588.
In this case, the prior forensic accounting of the husband's businesses was completed with the aid of several experts to the satisfaction of both parties. The wife had a full opportunity to discover evidence of greater income than the husband reported. No such evidence was discovered then, and no better evidence surfaced in the five years since the divorce. Discovery of the husband's business entities was not necessary again to determine the wife's child support obligation.
We reverse paragraphs thirty through thirty-three of the August 13, 2010 order and paragraphs four, five, and seven of the October 29, 2010 order.
We reject the husband's appeal from provisions of the August 13 and October 29, 2010 orders that denied retroactive child support from May 2009 when the youngest son moved to his home. The Family Part did not abuse its discretion in ordering retroactive child support beginning from the date that the husband filed his motion, June 7, 2010.
The anti-retroactivity statute pertaining to child support states in relevant part: "No payment or installment of an order for child support . . . shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification." N.J.S.A. 2A:17-56.23a. The statute seems to bar any retroactive modification of child support before the date a motion was filed. Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995).
We have held, however, that retroactive increases in child support are not barred by the statute. Keegan v. Keegan, 326 N.J. Super. 289, 291 (App. Div. 1999). We reasoned that "[n]othing in the legislative history [of N.J.S.A. 2A:17-56.23a] suggests that the law was enacted to protect parents from retroactive modifications increasing support obligations where equitable." Id. at 294. Here, the husband's motion did not involve decreasing or vacating a child support award.
Nevertheless, the Family Part made reference to our holding in Ohloff v Ohloff, 246 N.J. Super. 1, 7 (App. Div. 1991), that child support need not be awarded immediately from the time that a child moves from one to the other parent's home. Often, some time must elapse after a change to assess whether the change in residence is permanent. Ibid.
We affirm the relevant provisions of paragraph thirteen of the August 13, 2010 order and paragraph one of the October 29, 2010 order.
We reverse the provisions of the October 29, 2010 order authorizing subpoenas to the parties' sons to obtain financial statements for their Smith Barney college accounts and their savings bonds. The children should not have been brought into this litigation.
On appeal, both parties challenge the propriety of issuing subpoenas to the children, but, in fairness to the trial court, both parties misled the trial court to reach that result. The wife's cross-motion specifically requested such a remedy. The husband's motion for reconsideration included his certification, in which he stated that he had no access to the children's college fund accounts and that "a subpoena must be served upon the children." The uncomplicated dispute about the children's college funds called for reasonable discussion and resolution by the parties and their attorneys, rather than turning to the children as sources of information. The parties burdened the court with unnecessary litigation and then misled it into providing an inappropriate remedy.7
Paragraph 4.12 of the marital settlement agreement states that the husband will provide to the wife "duplicate statements for all custodial accounts immediately upon receipt of the same." It also provides that "upon college graduation, any remaining funds shall belong to the child." Ignoring the latter provision, the wife originally demanded half of any remaining balance in the children's college funds upon their graduation. In the initial order of August 13, 2010, the court mistakenly granted the wife's request. It also ordered the husband to provide a written accounting of the monies expended from the two older sons' college accounts and savings bonds and proof of the balance of each account or bond within ten days of the son's graduation from college.
In his motion for reconsideration, the husband properly urged correction of the court's misunderstanding that the parents rather than the children would own any balance that might remain in the college funds. He also argued that he was unable to provide an accounting because all bills and receipts were sent by the older sons' colleges directly to a money manager at Smith Barney and that he was no longer the custodian of his eldest son's account. The Family Part then reversed itself and permitted the wife to subpoena the children directly to obtain information related to their college funds.
The husband's disclaimer of responsibility was contrary to the terms of the parties' marital settlement agreement. Settlement agreements are enforceable contracts as long as they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); Lepis, supra, 83 N.J. at 146 (1980). "[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999).
We find nothing in the husband's arguments to justify his withholding information he possessed regarding disposition of the sons' college funds. Not only was he the custodian of those accounts and had continued in that capacity as to some of them, but the wife clearly had an interest in and a right to information about the status and disposition of those funds, whether or not she had any ownership interest in the funds. She could be required to help pay for her sons' college educations in the future. Even without such an obligation, she was entitled to learn whether the terms of the settlement agreement were followed in the disposition of those funds.
To the extent the husband continues to have authority over the accounts, he must provide an accounting. If he has relinquished control, he must provide an accounting up to the time that he no longer controlled the accounts and also provide any information the money manager has given him since that time about the accounts. He must also provide the identity and contact information for the money manager and authorize the money manager to provide accounting information to the wife. Instead of subpoenaing the children, subpoenas could be authorized to the money manager if necessary.
We reverse paragraph nine of the October 29, 2010 order authorizing subpoenas duces tecum upon the children and reinstate paragraph thirty-four of the August 13, 2010 order requiring the husband to provide an accounting of the college funds.
The wife's cross-appeal challenges the Family Part's rescission in its October 29, 2010 order of enforcement provisions against the husband that the court had ordered by its August 13, 2010 order and denial of other relief on her cross-motion for reconsideration.
Paragraph 5.1(K) of the marital settlement agreement required that each party return about eight listed items of personal property to the other. In five years since the divorce, the parties failed to make arrangements to return the items. Each party alleges that the other did not cooperate. Prior court orders dated April 27, 2007, and February 1, 2008, addressed this dispute and ordered that the parties exchange the items within fixed deadlines. The exchange did not occur. The husband alleges that the wife sold or disposed of his items, and so, he should not have to return her items.
By paragraph thirty-nine of its August 13, 2010 order, the Family Part granted the wife's original cross-motion to impose sanctions of $100 per day on the husband if he did not return the wife's listed items within thirty days. By paragraph twelve of its October 29, 2010 order, the court denied the wife's subsequent cross-motion to begin charging the sanction of $100 per day from September 14, 2010, because the husband still had not returned the items. The court did not state reasons in the latter order for denying the wife's request for sanctions. In his motion for reconsideration, the husband had argued that monetary sanctions should be denied on equitable grounds because the wife had failed to return his property.
In the absence of an abuse of discretion, we will not disturb a trial court's determination with respect to monetary sanctions under Rule 1:10-3 for failure of a party to comply with an order. Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. l988); see Gilbert v. Electro-Steam Generator Corp., 328 N.J. Super. 231, 236 (App. Div. 2000) (affirming a trial court's denial of sanctions). We find no abuse of discretion here.
We hope that the parties can resolve this dispute without further litigation. We note that the marital settlement agreement does not condition the delivery of each spouse's property on an exchange. Failure of each party for more than five years to honor a simple agreement to return items of property to the other, especially after prior litigation of the dispute and two earlier court orders, demonstrates the type of defiance that would justify sanctions. See, e.g., Anyanwu v. Anyanwu, 333 N.J. Super. 345 (App. Div. 2000), certif. denied, 170 N.J. 388 (2001). We are disturbed by the inability of these adults, represented by attorneys throughout repetitive litigation, to resolve a dispute about the return of sixteen items of personal property. We view their intransigence as a waste of heavily-demanded judicial resources. We urge counsel to negotiate a fair settlement of this dispute, substituting reasonable monetary offsets for missing or damaged items, or alternatively, allowing the issue to die without satisfactory results after so many years and such uncompromising positions.
We affirm paragraph twelve of the Family Part's order of October 29, 2010.
The wife appeals from paragraph fourteen of the October 29, 2010 order, which denied without prejudice her motion for enforcement of prior court orders requiring the husband to reimburse her for daycare expenses.
Paragraphs 4.6(b) and 4.11 of the marital settlement agreement provide that the husband will pay 60% of work-related childcare expenses. The prior court order of April 27, 2007, required that the husband pay $4,620.04 to the wife for her daycare expenses within fourteen days "of submission of proof that plaintiff [the wife] was employed full time." Payment was not made. She moved again for enforcement, and the prior February 1, 2008 order provided that:
Defendant [the husband] shall pay plaintiff [the wife] $4,620.04 in compliance with the Court order dated April 27, 2007, and shall reimburse plaintiff $191.40 for costs associated with work-related daycare pursuant to Paragraph 2 [of] the Order dated April 27, 2007, within ten (10) days;* and see page 13, provided however that the defendant shall pay $191.40 within 10 days.
The last part of this decretal provision after the asterisk was added in handwriting to the typed order. The asterisk and reference to "see page 13" are apparently a designation of additional handwritten language at the end of the entire order, which has not been reproduced completely in our record. To the extent we can read the additional handwritten language of the February 1, 2008 order, it seems to require that the wife obtain proof that she was employed full time during the relevant time period in 2006. Relying on such a requirement and the wife's alleged failure to comply, the husband again did not make the payment after the quoted February 1, 2008 order was issued.
The Family Part's October 29, 2010 order denied without prejudice the wife's motion to enforce the prior payment orders and explained as the reason: "Plaintiff indicates this amount was ordered in previous orders but her certification is not clear if it was one order, multiple orders or what orders." The wife argues on appeal that the terms of the April 27, 2007 and February 1, 2008 orders are clear on their face and should have been enforced. The husband argues that the wife still has not provided proof that she was working full time for the period encompassing the daycare expenses she sought.
From this record, we cannot determine whether the conditions inserted in handwriting into the court's prior orders of April 27, 2007, and February 1, 2008, were satisfied. In the current set of motions, the Family Part did not resolve that issue, perhaps because this request for reimbursement was buried within multiple other items of relief requested by both sides. We can discern no abuse of discretion in the court's denial of the wife's enforcement motion without prejudice. She may refile the motion with a clear presentation of her documentary proofs. As with the previous issue, we again view this dispute as unnecessarily prolonged and wasteful and urge the parties and attorneys to approach ultimate resolution with reason and fairness, recognizing that such repetitive disputes are harmful to all who are embroiled in them, including the parties' children.
We affirm paragraph thirteen of the October 29, 2010 order.
Finally, the wife appeals from paragraph fifteen of the October 29, 2010 order denying her motion for attorney's fees and costs. She contends the court abused its discretion because of the disparity between the parties' incomes.
We review a ruling on attorney's fees in a matrimonial action under the abuse of discretion standard. Eaton v. Grau, 368 N.J. Super. 215, 222-23 (App. Div. 2004); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992). Rule 5:3-5(c) lists factors the court must consider in ruling upon a motion for attorney's fees. See Williams v. Williams, 59 N.J. 229, 233 (1971).
We find no abuse of discretion in the court's ruling. Both parties received substantial benefits as a result of equitable distribution. The wife's income, which was not documented except in her CIS, is substantial although less than the husband's income. Furthermore, both parties have engaged in repetitive and unnecessary litigation, as we have discussed. There was no error in the Family Part's denial of the wife's request for attorney's fees. We affirm paragraph fifteen of the October 29, 2010 order.
ffirmed in part, reversed in part.
1 The marital settlement agreement also required that the husband pay additional rehabilitative alimony at the rate of $9,600 per year for a period of one and a half years after the divorce, which he paid.
2 The husband also submitted his 2008 tax return, which showed gross income of $243,467, adjusted after deduction of alimony payments to $169,067.
3 The wife attached current 2010 paystubs, which showed year-to-date earnings consistent with the amount she declared in her CIS. She did not attach tax returns, and so, there was no documented information regarding other potential sources of income, such as from investments.
4 Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2567-78 (2012).
5 The husband claims that the wife received equitable distribution valued at more than one million dollars and has substantial assets and investment income not shown in her CIS. The record presented on appeal does not permit us either to confirm or refute that claim, but it was the wife's obligation to attach sufficient financial documentation to her motion so that the court could determine accurately her financial condition.
6 The correction of two items of improperly stated monthly expense in the wife's 2010 CIS would reduce her reported monthly expenses from $11,192 to $7,320. The latter amount still provided for generous expense items for the wife alone in 2010 as compared to her 2004 CIS, including for such items as clothing ($1,000 per month for the wife alone in 2010 compared to the same amount for a family of five in 2004), food at home and restaurants ($910 per month in 2010 compared to $1,500 for a family of five in 2004), and vacations ($6,000 per year in 2010 compared to $8,000 for a family of five in 2004). The wife claimed that some portion of her listed expenses were for the benefit of the children. Her itemized expenses included $700 per month for "parenting time expenses." She provided no other accounting of expenses of the children, which should be addressed in conjunction with an order for child support payable from her to the husband.
7 The Family Part is frequently overburdened with unnecessary litigation. Perhaps if the parties did not dispute so many issues that reasonable people could resolve fairly and simply, and if the Family Part had not been compelled to address almost fifty items of relief in a single set of cross-motions, there would have been less risk of inadvertent missteps by the court in deciding the disputes worthy of the court's attention.