MARGARET A. MEANS v. WILLIAM J. SNIPES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5710-09T3

MARGARET A. MEANS,

Plaintiff-Respondent,

v.

WILLIAM J. SNIPES,

Defendant-Appellant.

________________________________________________________________

October 29, 2012

 

Argued December 13, 2011 - Decided

 

Before Judges Messano, Espinosa and Kennedy.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-859-08.

 

Gail J. Mitchell argued the cause for appellant (Schwartz Barkin & Mitchell, attorneys; Ms. Mitchell, on the brief).

 

Tremain L. Stanley argued the cause for respondent (Budd Larner, P.C., attorneys; Mr. Stanley and Elizabeth M. Foster-Fernandez, on the brief).

 

PER CURIAM

Defendant appeals from various provisions of the amended final judgment of divorce (AJOD) and various post-judgment orders. We affirm in part and reverse in part.

This has been a heavily litigated action. We summarize only those facts and proceedings relevant to this appeal.

The parties were married in November 1985. Plaintiff filed a complaint for divorce in October 2007. They have two sons, born in 1987 and 1989. Defendant is an attorney and became a partner at Sullivan & Cromwell in 1992. Although his income fluctuated, his attorney argued at trial that $2,750,000 would be a fair amount of income to impute to him. Plaintiff earned a master's degree in special education and was last employed outside the home in 1992. The trial court imputed income to her of $50,000.

In December 2007, plaintiff filed a motion for pendente lite relief, including spousal support and fees for counsel and experts. By order dated February 8, 2008, the court ordered, inter alia, that defendant pay plaintiff $60,000 in taxable alimony for the first three months of 2008 and that "$100,000 shall remain in a separate account and may be used for equal distributions of counsel and expert fees."

Trial began in November 2008 on the issue of the valuation of defendant's partnership interest. In May 2009, the parties agreed that plaintiff was entitled to receive $1,025,000, representing equitable distribution of the partnership interest. At oral argument, defense counsel identified this as the only provision of the AJOD that defendant does not want to reopen.

There was additional motion practice in 2009, which included plaintiff's motion for additional expert and counsel fees and defendant's cross-motion, asking that any award of attorney's fees to plaintiff be treated as an advance against her share of equitable distribution. The court ordered defendant to pay plaintiff's expert and counsel fees through December 31, 2008 in the aggregate amount of $76,000. Of this amount, $13,000 was to be treated as an advance against equitable distribution to plaintiff and the remainder was paid without prejudice to the parties' claims.

Trial continued as to the remaining disputed issues, including alimony, equitable distribution, and counsel fees.

At the close of the trial, the court asked counsel to submit a list of the issues to be decided and those issues as to which the parties had reached an agreement. The Statement of Open Issues left for the court to decide included alimony, the amount of life insurance defendant was required to carry while he was required to pay alimony, the buyout terms for defendant's initial payment for the marital residence and counsel fees. The Statement of Agreed Upon Issues included the following:

3. The defendant shall own the former marital residence, in return for his paying the plaintiff $200,000.00 and 1/3 of any amount that the property is sold in excess of $2,700,000.00 to a bona fide third purchaser.

 

4. In return for the defendant previously paying the [plaintiff] $103,392.00, the plaintiff waives any claim to modification of the pendente lite support Order through May 31, 2009.

 

5. The plaintiff and defendant shall each report alimony paid by the defendant to the plaintiff of $220,000.00 in 2008.

 

6. Alimony pursuant to the Court's decision shall commence on June 1, 2009.

 

. . . .

 

11. The cash surrender value of [certain enumerated life insurance] policies shall be divided equally between the parties.

 

. . . .

 

15. While no direct child support will be paid at this time, each party reserves the right to seek child support, contribution to college or graduation, medical insurance, contribution to unreimbursed medical expenses and contribution to other expenses for the children in the future.

 

The trial court issued a written decision, dated June 18, 2009, and a final judgment of divorce dated July 27, 2009. The judgment memorialized issues agreed upon by the parties as well as the court's resolution of remaining issues.

The court characterized alimony as "the primary issue." After setting forth its findings, the court awarded plaintiff $650,000 per year in permanent alimony. In recognition of defendant's agreement "to reimburse and pay all taxes" for plaintiff from February 8, 2009 to June 30, 2009, the court ordered that the permanent alimony award would take effect August 1, 2009. The court ordered that in the event that defendant's annual income fell below $2 million, he would receive a reduction in alimony.

The court also ruled that defendant would be permitted to purchase plaintiff's interest in the marital residence "for $200,000.00 now and 30% of the purchase price over 3 million dollars at the time of the sale of the property." As for life insurance, the court required defendant to maintain $3 million in life insurance for the duration of his alimony obligation. The court acknowledged the representation made in defense counsel's letter of June 11, 2009, that the insurance would be provided by a term life insurance policy provided through defendant's law firm. In addressing counsel fees, the court required defendant to make an additional contribution of $89,436.10 toward plaintiff's counsel fees and to pay one-half of $16,966.71 in outstanding expert fees.

Plaintiff filed a motion for reconsideration. Defendant filed a cross-motion for reconsideration in which he asked, inter alia, for the court to reconsider paragraph 28 of the Judgment of Divorce, which required him to pay an additional $97,979.65 toward plaintiff's counsel and expert fees. In addition, defendant asked the court to require plaintiff to pay her share of the taxes incurred by his cashing in life insurance policies. By order dated October 28, 2009, the court decided the various issues raised in the motion and cross-motion for reconsideration. The court denied defendant's requests for reconsideration of counsel fees and for plaintiff to pay for tax liability for the insurance policies cashed by defendant. In addition, the order stated that it was "[o]rdered and agreed defendant may substitute the term life insurance coverage available through his employer S&C with other life insurance, at whatever premium cost, of the same face value, $3,000,000, naming plaintiff as irrevocable beneficiary so long as Alimony is due to plaintiff . . . ." The court also entered an amended Dual Final Judgment of Divorce (AJOD).1

On December 4, 2009, defendant filed a motion for stay pending appeal, plaintiff opposed the motion, and the court denied the motion by order dated December 11, 2009.

Thereafter, at defendant's request, the court conducted a hearing regarding counsel fees on February 3 and 18, 2010, and the parties submitted fee certifications. By written opinion dated March 15, 2010, and by order dated April 13, 2010, which was subsequently made effective May 17, 2010, the court ordered defendant's monthly alimony obligation to plaintiff of $54,166 retroactive to March 1, 2009, so that "defendant owes to plaintiff the 'grossed-up' taxable sum of $129,165," denied defendant's request for return of the fees advanced to plaintiff on prior applications, ordered defendant to pay plaintiff's counsel fees and costs in the amount of $21,400, and vacated paragraph 28 of the AJOD regarding counsel fees and "supplemented [it] with" the above-mentioned terms of the April 13, 2010 order.

Defendant filed a motion for reconsideration of paragraph 1 of the April 13, 2010 order, which required payment of retroactive alimony, and for other post-judgment relief, including a downward modification of his monthly alimony obligation from $54,166 to $28,750, an extension and reduction in the payment schedule to plaintiff of her interest in his law firm, an award of child support, reimbursement for pendente lite payments made towards one of his children's education expenses or, in the alternative, $19,072 from plaintiff (i.e., twenty-three percent of his payments towards the child's education expenses), plaintiff's execution of documents extinguishing her interest in the marital residence, and an order compelling plaintiff's compliance with paragraph 17 of the judgment of divorce and AJOD, which required division of personalty from the marital residence. Plaintiff filed a cross-motion to enforce litigant's rights, and defendant responded.

The court entered two orders, dated July 8, 2010, on the motion and cross-motion. The court denied all of defendant's requested relief, except that it ordered plaintiff to execute the documentation extinguishing her interest in the marital residence and comply with paragraph 17 in the judgment of divorce and AJOD requiring division of the marital furniture and personal property. The court granted in large part plaintiff's requested relief. The relevant paragraphs that defendant appeals from include: 4 (concerning division of personalty); 5 (directing defendant to "provide proof of the additional $6,000,000 of life insurance on his life"); and 8 (requiring defendant to make support and equitable distribution payments by electronic payment/wire transfer).

Defendant filed his notice of appeal on July 29, 2010.2 The issues presented for our consideration are:

POINT I

 

THE COURT FAILED TO PROPERLY APPLY THE STATUTORY FACTORS FOR ALIMONY IN THIS MATTER

 

1. THE ACTUAL NEED AND ABILITY OF THE PARTIES TO PAY

 

2. THE DURATION OF THE MARRIAGE

 

3. THE AGE, PHYSICAL AND EMOTIONAL HEALTH OF THE PARTIES

 

4. THE STANDARD OF LIVING ESTABLISHED IN THE MARRIAGE AND THE LIKELIHOOD THAT EACH PARTY CAN MAINTAIN A REASONABLY COMPARABLE STANDARD OF LIVING

 

5. THE EARNING CAPACITIES, EDUCATIONAL LEVELS, VOCATIONAL SKILLS AND EMPLOYABILITY OF THE PARTIES

 

6. THE LENGTH OF ABSENCE FROM THE JOB MARKET OF THE PARTY SEEKING MAINTENANCE

 

7. THE PARENTAL RESPONSIBILITIES FOR THE CHILDREN

 

8. THE TIME AND EXPENSE NECESSARY TO ACQUIRE SUFFICIENT EDUCATION OR TRAINING TO ENABLE THE PARTY SEEKING MAINTENANCE TO FIND APPROPRIATE EMPLOYMENT, THE AVAILABILITY OF THE TRAINING AND EMPLOYMENT, AND THE OPPORTUNITY FOR FUTURE ACQUISITIONS OF CAPITAL ASSETS AND INCOME

 

9. THE HISTORY OF THE FINANCIAL OR NON-FINANCIAL CONTRIBUTIONS TO THE MARRIAGE BY EACH PARTY, INCLUDING CONTRIBUTIONS TO THE CARE AND EDUCATION OF THE CHILDREN AND INTERRUPTION OF PERSONAL CAREERS OR EDUCATIONAL OPPORTUNITIES

 

10. THE EQUITABLE DISTRIBUTION OF PROPERTY ORDERED AND ANY PAY OUTS ON EQUITABLE DISTRIBUTION, DIRECTLY OR INDIRECTLY, OUT OF CURRENT INCOME, TO THE EXTENT THIS CONSIDERATION IS REASONABLE, JUST AND FAIR

 

11. THE INCOME AVAILABLE TO EITHER PARTY THROUGH INVESTMENT OF ANY ASSETS HELD BY THAT PARTY

 

12. THE TAX TREATMENT AND CONSEQUENCES TO BOTH PARTIES OF ANY ALIMONY AWARD, INCLUDING THE DESIGNATION OF ALL OR A PORTION OF THE PAYMENT AS A NON-TAXABLE PAYMENT

 

13. ANY OTHER FACTORS WHICH THE COURT MAY DEEM RELEVANT

 

POINT II

 

IT CONSTITUTED REVERSIBLE ERROR FOR THE COURT TO PROMISE THE DEFENDANT NO RETROACTIVE ALIMONY IF HE PAID THE SUM OF $103,392.00 AND THEN RENEGE. . . .

 

POINT III

 

IT WAS REVERSIBLE ERROR FOR THE COURT TO HAVE PRE DETERMINED ALIMONY IN THE FUTURE WITH PRO-RATA ADJUSTMENTS

 

POINT IV

 

THE COURT'S AWARD TO THE PLAINTIFF OF AN ADDITIONAL 30% OF ANY PROFIT ABOVE $3,000,000 OF THE SALE OF THE MARITAL RESIDENCE WAS UNREASONABLE AND UNJUST REQUIRING A REVERSAL OF SAME

 

POINT V

 

THE COURT'S FAILURE TO CONSIDER THE TAX CONSEQUENCES ASSOCIATED WITH THE SURRENDER OF THE CASH VALUES ON THE LIFE INSURANCE POLICIES VIOLATED THE EQUITABLE DISTRIBUTION STATUTE

 

POINT VI

 

THE COURT'S REFUSAL TO ADDRESS CHILD SUPPORT IS REMINISCENT OF THE COURT'S CONDUCT IN PESKIN V. PESKIN, 271 N.J. 261 (APP. DIV. 1994) AND SHOULD BE REVERSED

 

POINT VII

 

THE RESPECTIVE FINANCIAL CIRCUMSTANCES OF THE PARTIES MADE THE COURT'S AWARD OF LEGAL FEES TO THE PLAINTIFF UNREASONABLE AND UNJUST, REQUIRING A REVERSAL OF SAME

 

1. THE WIFE'S NEED

 

2. THE HUSBAND'S FINANCIAL ABILITY TO PAY

 

3. THE WIFE'S GOOD FAITH IN INSTITUTING OR DEFENDING THE ACTION

 

After reviewing defendant's arguments in light of the record and the applicable legal principles, we are satisfied that the arguments raised in Points I, II, IV, V, VI and VII lack merit and agree with the argument advanced in Point III.

I

We turn first to defendant's arguments regarding alimony,3 which the trial court described as the "primary issue" in this case. Defendant challenges the permanent award of $650,000 in annual alimony, the court's determination to award the alimony retroactive to January 1, 2009, and the provision in the AJOD that called for a pre-determined reduction based upon a decline in his income. Aside from the trial court's sua sponte inclusion of an automatic reduction provision, these arguments lack merit.

A

Paragraph 21 of the AJOD provides for a pro-rata reduction in alimony payments if defendant's annual gross earnings drop below $2,800,000 in a given year. In addition, paragraph 8 provides that defendant "will have an automatic right to receive a reduction in Alimony" if his gross annual earnings fall below $2 million. The parties did not agree to an automatic adjustment in alimony based upon this criterion. Each of the parties argues that the court erred in including this provision in the AJOD and that any modification of alimony should be subject to the principles set forth in Lepis v. Lepis, 83 N.J. 139 (1980). We agree. Therefore, we reverse that part of the court's decision set forth in Paragraphs 8 and 21 of the AJOD that calls for an automatic reduction in alimony based upon pre-determined income amounts, and direct that it be vacated from the order.

B

Defendant argues that the alimony obligation must be reversed because the trial court failed to properly apply the factors identified in N.J.S.A. 2A:34-23(b), i.e.:

(1) The actual need and ability of the parties to pay;

 

(2) The duration of the marriage or civil union;

 

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

 

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

 

(6) The length of absence from the job market of the party seeking maintenance;

 

(7) The parental responsibilities for the children;

 

(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

 

(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;

 

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

 

(11) The income available to either party through investment of any assets held by that party;

 

(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and

 

(13) Any other factors which the court may deem relevant.

Although the trial court did not explicitly address each enumerated factor and identify the findings specifically relevant to each factor, the court plainly focused on the statutory factors in making its findings, which include the following:

The parties were married on November 30, 1985 and separated after some 22 years of marriage in November 2007. Two children were born of the marriage [aged 21 and 20].

 

The wife has a college degree in Special Education and a Master's Degree that she attained in 1979. [Defendant] is a partner in one of the largest law firms in New York City. The wife has chosen not to work outside the home.

 

. . . .

 

[S]he estimates she last worked outside the home in 1992 when she was a special education teacher in the Newark School System. She remained a homemaker and raised the children in the home in the ensuing years. . . . The parties have agreed to work together on [the issues involving their younger son, who may not be able to live independently] and do not seek court intervention at this time.

 

The wife's proposed housing plan would require $12,600 as the principal and interest monthly on a mortgage. This does not include the taxes on the yet to be purchased property. If taxes are $24,000.00 a year, then the monthly housing payment would be $15,000.00 a month or $180,000.00 a year. This seems largely unnecessary for a one person residence, despite the parties' previous lifestyle.

 

The husband earned $2,639,551.00 in 2006, $2,681,912.00 in 2007 and $3,197,844.00 in 2008. There is very little accumulated savings from this money stream. The parties were consumptive of their income. The court will use 2.8 million as income for the husband in establishing alimony, as this is the rounded average of the last three years. The court will use the sum of $50,000.00 as potential earned income to the wife, who at age 56 experiences no health problems or physical limitations. She has the ability and the choice to re-enter the work force. She may require additional training to update her teaching certification to accompany her masters' degree. However she clearly has the ability to work, it is unclear whether she possesses such a desire (to work).

 

The parties purchased [the marital home] in 1996 for $900,000.00. During the coverture portion of the marriage, (over the last 8 years) over 4 million dollars has been expended on renovations. The house appraised for $2.7 million and the mortgage is $2.3 million dollars. There is over 5 million dollars invested in the property from both interior and exterior renovations and the original purchase price. The husband presently resides alone in the property and pays $18,000.00 monthly for principal and interest and $56,000.00 per year in real estate taxes. Annualized, this makes the mortgage payment to be $23,000.00 monthly or $276,000.00 a year. This also seems an unnecessary annual expenditure as it has built no equity increase. The wife's present rent is $3000.00 monthly or $36,000.00 a year. In 2007 her CIS . . . lists her total monthly expenses to be $17,500.00 (rounded). This equaled $210,000.00 net per year or $350,000.00 gross per year (tax effected).

 

Amazingly, and there is no other way to describe this, her 2009 CIS . . . lists her monthly expenses to be $85,000.00, five times her previous listing of expenses. Sixteen thousand dollars of the increase represents her proposed new house cost on an accelerated 15 year mortgage, and she seeks $50,000.00 as a monthly savings component. If you double her pendente lite budget in 2007 ($17,500.00) and subtract the $50,000.00 monthly savings component from the 2009 CIS ($85,000.00 - $50,000.00), you reach $35,000.00 monthly (net). There are not many individuals who have consistently earned such a high level of income [as defendant] since 40% of every dollar earned goes to income tax, then the tax consequences and the deductibility of the alimony become loaming factors in setting an alimony award. Based on a review of all CIS filings and the testimony of the parties, the court shall fix alimony at $650,000.00 per annum.

 

While need is not the singular basis for alimony, the ability to pay at this time is undisputed, and using $2,800,000.00 as the income base and $650,000.00 as annual alimony, the court offers the following analysis.

 

Husband Wife

$2,800,00.00 $650,000.00

Alimony $ 650,000.00 $290,500.00.415% Tax

Gross $2,150,000.00 $359,500.00 Net to Wife

Blended Tax Rate $ 871,500.00

.415%

Net to Mr. Snipes $1,278,500.00 Net to husband

The husband has agreed to reimburse and pay all taxes for Ms. Means from February 8, 2009 (PL Order) to June 30, 2009. This decision will take effect August 1, 2009 for the new payments.

The court did not key its findings to each of the statutory factors. However, its findings plainly reflect a consideration of the relevant factors. Although the judge did not explicitly quantify the parties' marital standard of living, the judge did consider the parties' case information statements (CIS), which did not markedly differ from each other. Specifically, plaintiff's 2009 CIS estimated the parties' shelter expenses as $47,368 monthly, and defendant's 2008 CIS estimated those expenses as $48,809. Moreover, the court noted that the parties' lifestyle was "consumptive" of defendant's considerable income and that the parties had very little in accumulated savings. The court observed that the parties had spent over $4 million in renovations on a house with an appraised value of $2.7 million and in which their equity was only $400,000. In assessing the projected expenses of the parties, he concluded that each included expenses that were "unnecessary," despite their previous lifestyle. The court's decision therefore provides adequate findings regarding the parties' marital lifestyle.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). It is only "when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" that we will intervene and make our own findings "to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596 (2007)). Because the trial judge's determination regarding alimony is supported by credible evidence in the record, we defer to its determination. See Pascale v. Pascale, 113 N.J. 20, 33 (1988); Brown v. Brown, 348 N.J. Super. 466, 475 (App. Div.), certif. denied, 174 N.J. 193 (2002). Accordingly, we find no reason to disturb the trial court's determination.

C

Defendant argues that the court erred in awarding plaintiff $129,165 in retroactive alimony in the April 13, 2010 post-judgment order, and in denying his motion for reconsideration of this issue by order dated July 8, 2010. We disagree.

Defendant argues that the court promised not to make him pay retroactive alimony if he paid plaintiff's taxes in the amount of $103,392 by May 26, 2009. Defendant's argument takes the court's representation out of context and ignores the interrelationship of factors such as alimony and counsel fee awards. See Brown, supra, 348 N.J. Super. at 475.

Pendente lite, the court ordered defendant to pay plaintiff $60,000 in taxable alimony for the first three months of 2008. During plaintiff's cross-examination at trial, defendant's counsel explained defendant had continued paying $20,000 per month as deductible alimony thereafter without paying the taxes in 2008 and 2009. The court clarified on the record that it had intended the payments to be tax free to plaintiff, explaining that it would "either . . . pick a retroactive number, which will be then fully taxable in which [plaintiff will] pay the tax" or would allow the parties "to resolve the past taxes". Defendant agreed to pay plaintiff's taxes in the amount of $103,392. The court's written opinion on this issue stated "[t]he parties have agreed to the payment of $103,392.00 during trial to be paid to [plaintiff] to satisfy all State and Federal Income Tax liabilities under the pendente lite order previously entered," including "2008 and 2009 payments."

The judgment of divorce stated that the $103,392 represented "a full and complete settlement of the plaintiff's retroactive claims for alimony and any other pendente lite payments that could be awarded to her . . . ." The amended dual judgment of divorce added that $103,392 represented "a full and complete settlement of the plaintiff's retroactive claims for alimony through May 31, 2009 and any other pendente lite payments that could be awarded to her . . . ."

Post-judgment, defendant sought, pursuant to Rule 4:42-9, to extinguish $97,979.65 he was ordered to pay plaintiff for her pendente lite expert and counsel fees. At the hearing on counsel fees held at defendant's request, the judge explained to the parties that defendant's requested relief would likely trigger retroactive alimony:

[If I had awarded retroactive alimony pursuant to Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995),] in the relationship between the alimony, equitable distribution, and the fees, I would have awarded her, retroactively, an additional taxable sum of $615,000.

 

. . . .

 

And, understanding [the] relationship of those three things [alimony, equitable distribution, and counsel fees], which we've established you agree with under the law, that, if I modify the award of fees now downward . . . then, in fact, I may be obligated to, in that inter-relationship, retroactively create a source of income for her to pay those fees, since we acknowledge in your pleadings he paid them with his post-complaint earnings.

 

And the reason he had such a vast figure in post-complaint earnings is because the pendente lite order was too low.

 

So you have to make a decision as to which one you want.

 

Now, I didn't, in my decision, as it stands, retroactively apply it, because I allocated fee responsibility to him. . . . [I]f I now reallocate funds or fees for her to pay and a quarter-of-a-million post-tax dollars, then it goes in hand that I have to consider creating retroactively the funds that should have been available to her, under [Mallamo], to pay these fees.

 

Defendant did not abandon his request and the hearing proceeded. The court vacated paragraph 28 of the AJOD ordering defendant's payment of $97,979.65 in expert and counsel fees to plaintiff, and awarded plaintiff retroactive alimony in the amount of $129,165, explaining in its written opinion that "[t]his redistribution of 'post complaint income' shall enable [plaintiff] to pay the balance of her fees and allow [defendant] the added benefit of being able to deduct this alimony payment." The court further noted that if it had ordered retroactive alimony from the date of the pendente lite order (February 8, 2008), defendant "would [have paid] an additional $465,000.00 in taxable alimony to his former wife."

Defendant moved for reconsideration of the retroactive alimony award. By order dated July 8, 2010, defendant's motion was "[d]enied with prejudice for reasons set forth in [the March 10, 2010] prior opinion."

The award of retroactive alimony here was made through a modification of pendente lite support. Pendente lite support orders are subject to modification prior to entry of final judgment and, as a general rule, "do not survive the entry of a judgment of divorce unless expressly preserved in it or reduced to judgment prior to entry of final judgment." Mallamo, supra, 280 N.J. Super. at 12. The pendente lite support order was essentially preserved in the judgment since the permanent alimony award was made effective August 1, 2009. Moreover, N.J.S.A. 2A:34-23 authorizes the court to "make such order as to the alimony or maintenance of the parties . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just," even after a judgment of divorce has been entered. Therefore, when there has been a modification of other financial issues, it may be appropriate to modify pendente lite support following final judgment. In Tannen v. Tannen, 416 N.J. Super. 248 (App. Div. 2010), aff'd o.b., 208 N.J. 409 (2011), we reversed the judgment as to the computation of alimony, child support, and equitable distribution. On remand, we permitted the trial court to reconsider the retroactive modification of a pendente lite support order. Id. at 285. See Brown, supra, 348 N.J. Super. at 475 (noting "the interrelationship of equitable distribution, alimony, child support, and fee awards.")

Here, the determination of interrelated financial issues was substantially changed in response to defendant's request that the court modify his obligation to pay counsel fees for plaintiff. The court clearly advised plaintiff that the granting of such relief would trigger reconsideration of the pendente lite support previously ordered. The court explained its reasoning for both allowing the modest pendente lite award to remain unmodified in the judgment of divorce and for revisiting the issue following defendant's request. The decision to award retroactive alimony "is left to the sound discretion of the trial judge." Walles v. Walles, 295 N.J. Super. 498, 514 (App. Div. 1996). We discern no abuse of discretion in the court's determination that a modification of the pendente lite support was required under the circumstances.

Defendant also appeals from the denial of his June 1, 2010 motion for reconsideration. Reconsideration is "a matter within the sound discretion of the Court, to be exercised in the interest of justice[.]" Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). "[A] litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process." D'Atria, supra, 242 N.J. Super. at 401. We review the court's denial of the motion for an abuse of discretion. Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997). The judge did not abuse his discretion in denying defendant's motion for reconsideration.

II

Defendant's arguments in Points IV, V, and VI implicate certain established legal principles. Because defendant challenges discrete provisions relating to financial issues, we are mindful of the well-recognized interrelationship of financial issues, such as equitable distribution, alimony, child support, and fee awards, in matrimonial litigation. See Brown, supra, 348 N.J. Super. at 475. We also recognize that "[s]ettlement of litigation ranks high in our public policy." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 35 N.J. 61 (1961)). "'[T]he use of consensual agreements to resolve marital controversies' is particularly favored in divorce matters." Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). As a result, "fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Konzelman, supra, 158 N.J. at 193-94 (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)). Moreover, the doctrine of invited error bars a litigant "from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error." Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996); see also M.C. III, supra, 201 N.J. at 340.

A

Defendant acknowledges in his brief that it was stipulated at trial that the value of the marital residence as of November 6, 2008 was $2.7 million and that it carried a mortgage of $2.3 million, resulting in a net equity of $400,000. During the course of his testimony, defendant proposed the following:

I keep the house, we split the current equity, if the house is sold and there's an upside, we share the upside.

 

The court questioned defendant about this proposal, asking, "What percentage?" and reminded defendant that he would be paying the carrying costs until sale. Defendant answered that plaintiff should get one-third of the proceeds over the current appraised value. The court queried defendant as to his intent, noting that he would probably "be throwing more money into this[,]" and that there would be a realtor's commission for the sale. Defendant stated the court's understanding of his proposal was correct. The court explained further that the proposal would give defendant complete discretion as to when or if he chose to sell the property and that plaintiff would have the right to pass her claim on as part of her estate.

Paragraph 13 of the AJOD, which addresses defendant's buyout of plaintiff's interest in the marital residence, states in pertinent part:

It is ordered and agreed that as a buyout of the plaintiff[']s interest in the parties' jointly-titled residence . . ., (a) the defendant shall pay the plaintiff the sum of Two Hundred Thousand ($200,000) Dollars on or before September 18, 2009; and (b) the defendant may be required to pay a further sum to the plaintiff based on any future sale of the Marital Residence in accordance with the provisions of paragraph 16 below.

 

Defendant appeals from subsection b. of this paragraph, as well as paragraphs 15 and 16 of the AJOD. In short, he challenges those portions of the AJOD that provide for plaintiff to share in the increased value of the marital residence if and when he chooses to sell the property.

However, the only differences between the provisions in the AJOD and the disposition defendant proposed at trial is that the AJOD is actually more favorable to him. Rather than the additional one-third share of any sale price over $2,700,000 proposed by defendant, the court set the triggering price at $3 million and awarded plaintiff only thirty percent of the sale price over $3 million. Moreover, although defendant had not requested a ceiling in his proposal, the AJOD limited plaintiff's additional interest to a sale price of up to $6 million.

Here, the trial court gave appropriate consideration to the factors applicable to equitable distribution, N.J.S.A. 2A:34-23.1. Defendant's challenges to the court's ruling, which accepted defendant's proposal and made it more favorable to him, is barred by the doctrine of invited error.

B

Paragraph 11 of the AJOD addresses equitable distribution of the cash surrender value of defendant's life insurance policies acquired during the marriage. It provides that the values

shall be . . . divided on a 50-50 basis between the parties. The value of any additional cash surrender value of such accounts from the date of complaint through the date of surrender shall be the sole and exclusive separate property of the defendant.

 

Defendant argues that this provision must be reversed because the court did not consider the tax consequences associated with this distribution. However, this provision is entirely consistent with the Statement of Agreed Upon Issues, which stated that the cash surrender value of the enumerated life insurance policies "shall be divided equally between the parties." Moreover, the provision did not require defendant to incur any tax liabilities; it left to defendant the decision of whether to cash out the surrender value and incur tax consequences or pay the amount agreed upon out of other funds without incurring any tax consequences. In fact, the court explained that it had not ordered the parties to share tax liability for cashing out the surrender value because it was defendant's unilateral choice that resulted in the tax liability. We find no error in the court's decision.4

C

In Point VI, defendant states that he "did not make an intelligent agreement to fully support the children without a contribution from the plaintiff" and, therefore, "that portion of the agreement should be set aside." He also appeals from an order that denied his motion for reconsideration of an order that denied his post-judgment motion seeking child support.

Defendant has made no showing of fraud or other compelling circumstances that would justify setting aside portions of the AJOD that were agreed upon by the parties. See Nolan, supra, 120 N.J. at 472. We are satisfied that this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

III

Defendant appeals from paragraphs 2 and 3 of the April 13, 2010 order on his post-judgment motion regarding counsel fees. As previously noted, defendant sought the return of counsel fees he advanced to plaintiff pursuant to court order and, at defendant's request, the court conducted a hearing which included expert testimony on the reasonableness of the counsel fees. Plaintiff applied for post-judgment counsel fees. The court denied defendant's motion, calling it "baseless," and ordered him to pay an additional $21,400 for plaintiff's counsel fees.

Rule 5:3-5(c) authorizes the trial court "in its discretion" to made an award of counsel fees, subject to the provisions of R. 4:42-9(b), (c), and (d). The rule provides:

In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (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 both during and prior to trial; (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.

In a written opinion, the trial court noted factors it had considered in making a counsel fee award at trial, which included the disparity in income between the parties, defendant's financial ability, and plaintiff's lack of employment. The parties' joint attorney and expert fees by the end of trial were $864,380, the greater part of which were defendant's. The court rejected defendant's argument that plaintiff's fees were needlessly increased by the fact that multiple lawyers worked on her behalf.

In revisiting the counsel fee issue at defendant's request, the trial judge noted "the importance of the relationship amongst the awards of alimony, equitable distribution and attorneys' fees." The judge also considered factors enumerated in Rule 5:3-5(c), including "the reasonableness and good faith of the positions advanced by the parties both during and prior to trial[.]"

Although the judge did not find that defendant had acted in bad faith, he did conclude that defendant had taken unreasonable positions that caused increased legal fees. Specifically, the court found "that Mr. Snipes in his initial refusal to pay support and his offer of minimal support, even at the very end of the case, caused a trial to be necessary."

Post-judgment, plaintiff had attorneys' fees of $21,400 and expert fees of $7,500. In awarding her $21,400, the court noted that she had initiated no post judgment divorce litigation, had waived her Tevis5 claim, and had not filed an appeal. In contrast, the court found that defendant's application for the return of fees was "baseless." The court stated, "Mr. Snipes has been unreasonable and the court perceives a continuation of his presenting unreasonable positions." Accordingly, the court denied the motion for a return of fees and ordered defendant to pay plaintiff $21,400 in fees.

The award of counsel fees in a family action lies within the discretion of the trial judge. Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). We will not reverse the trial judge "absent a showing of an abuse of discretion involving a clear error in judgment." Tannen, supra, 416 N.J. Super. at 285 (citing Chestone v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999)). The trial judge considered the relevant factors contained in Rule 5:3-5(c) and provided a reasoned explanation for his determination. We find no basis to disturb his decision.

Affirmed in part and reversed in part. All provisions of the AJOD and post-judgment orders appealed from are affirmed with the exception of those provisions in Paragraphs 8 and 21 of the AJOD that call for an automatic reduction in alimony based upon pre-determined income amounts. We reverse those provisions and remand for entry of an order in which those provisions are v

acated. We do not retain jurisdiction.

1 Defendant filed a notice of appeal from the AJOD, the prior final judgment of divorce, the October 28, 2009 order, and several other orders. Defendant represents that this appeal was subsequently withdrawn. This is not confirmed by anything in the appellate record.

2 In his notice of appeal, defendant claims he is appealing from a number of court rulings that he has failed to sufficiently address in his brief, which include: (1) the portion of paragraph 8 of the AJOD setting a schedule for the agreed-upon equitable distribution payments of his law partnership interest, and giving defendant the automatic right "to receive an extension of the equitable distribution payments" should his income drop below $2,000,000 per year; (2) paragraphs 6 and 10 of the October 28, 2009 reconsideration order; (3) paragraph 1 of the December 11, 2009 order; (4) paragraph 8 of the July 8, 2010 order on plaintiff's cross-motion to enforce litigant's rights; and (5) paragraph 3 of the July 8, 2010 order on defendant's motion for reconsideration and other post-judgment relief. These issues are, therefore, deemed to be waived. Jefferson Loan Co., Inc. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2012). Defendant's notice of appeal also indicates an appeal from paragraph 28 of the AJOD, which was vacated by paragraph 4 of the court's April 13, 2010, order. Defendant has not appealed that paragraph of the April 13, 2010 order.

3 In his notice of appeal, defendant also stated that he appealed from paragraph 2 of the July 8, 2010 order, which denied his post-judgment application for a downward modification of his alimony obligation. Because this issue was not raised in his merits brief, it is deemed waived. Drinker Biddle & Reath LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (claims not addressed in merits brief deemed abandoned). Although some reference was made in the reply brief to the alleged need for a plenary hearing, this issue could not properly be raised in a reply brief. Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 528 n.5 (App. Div. 2009), certif. denied, 203 N.J. 93 (2010).

4 Defendant also argues that the court "imposed an unreasonable and unnecessary financial burden on [him] by not permitting him to obtain cheaper insurance with the same death benefit" as the insurance he was required to maintain to secure his alimony obligation. However, his brief does not identify any portion of any order that precludes him from obtaining cheaper insurance with the same death benefit and identifies no cognizable claim of error. Moreover, this argument ignores the fact that the order dated October 28, 2009 permitted such a substitution of policies.

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