STEVEN VARDAKIS v. DEBRA VARDAKIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5690-10T4

STEVEN VARDAKIS,

Plaintiff-Appellant,

v.

DEBRA VARDAKIS,

Defendant-Respondent.

__________________________________

June 14, 2013

Submitted February 5, 2013 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-869-09.

Ulrichsen Rosen & Freed LLC, attorneys for appellant (Derek M. Freed and Rebecca C. Day, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff Steven Vardakis appeals the Family Part's May 13, 2011 amended final judgment divorcing him from defendant Debra Vardakis,1 as well as the July 11, 2011 order denying portions of his motion for reconsideration. We affirm in part and remand for reconsideration of certain issues identified in this opinion.

I.

We discern the following facts and procedural history from the record on appeal.2

Steven and Debra, who had both been married before, met in 1996. At the time, Steven was living in New Jersey and Debra was living in Illinois. They became engaged in 1997. Steven purchased a house in Robbinsville in June 1998. Debra moved into the house in November. They married in March 2000. Although Debra sought permission to move her children from Illinois to New Jersey several times, it appears from the record that she was never allowed to do so. They have no children of their own, but owned a dog together.

At the time of the marriage, Steven was employed as a police officer in East Windsor. He retired in 2005, at which time he started receiving his police pension. He worked at other jobs following his employment, with at least one period of unemployment, and was employed at the time of trial, earning approximately $86,000 per year. His net pension income was approximately $70,800 per year.

Debra was employed during the marriage, first as a medical receptionist and then legal secretary. According to Debra's 2009 Social Security earnings record, she earned about $5600 in 2000, $6640 in 2001, $14,350 in 2002, $13,890 in 2003, $25,740 in 2004, $36,890 in 2005, and $36,860 in 2006. In 2007, her earnings dropped to $2186. Debra's tax forms indicate that in 2008 she was unemployed. In 2009, she earned $14,700 as a legal secretary, and also was unemployed for part of the year. At the time of trial, it appears from the record that Debra's most recent certified statement of income was from June 2010, when her only income was the pendente lite alimony of $1468 per month.

The couple lived in New Jersey during the marriage, although Debra spent several periods of time with her parents in Illinois. While some of her absences were related to the illness of her mother and the death of her father, Debra spent approximately eleven months in Illinois towards the end of their relationship due to marital conflicts. Debra returned to New Jersey in March 2009, after Steven announced his intention to file for divorce.

Steven filed his complaint in April 2009. Debra filed her answer and counterclaim in June. Although she was initially represented by counsel, Debra represented herself after her attorney successfully moved to be relieved as counsel.

In October, Debra announced her intention to return to Illinois and seek employment there. She also told Steven she intended to take their dog with her. Steven applied for an order to show cause to restrain Debra's removal of the dog, and to award him sole possession of the dog. Debra filed an application for pendente lite relief. Following a hearing on November 12 and agreement on the terms of a November 30 consent order, the matter was adjourned to January 2010, during which time the parties were to share custody of the dog. They were subsequently ordered to participate in mediation.

A separate motion for pendente lite alimony was argued in February, resulting in an award of $1,468 in monthly pendente lite spousal support to Debra.

According to Steven, the parties entered into a time-sharing agreement with respect to the dog during mediation. In March, he filed a motion seeking to enforce that agreement, in addition to other relief. In an opposing certification, Debra argued that the parties had not reached any such agreed. After oral argument on April 9 in which Debra appeared pro se by telephone, the motion judge entered an order enforcing the time-sharing agreement and granting other relief, including requiring the parties to cooperate in filing of a joint tax return for 2009.

Following further motion practice after Debra refused to return the dog to New Jersey, the motion judge entered an order on June 14, requiring Debra to return the dog to New Jersey, imposing sanctions and counsel fees for her failure to obey the April 9 order for time sharing, and ordering a continuing sanction of $100 per day until the dog was returned to Steven. As of the date of trial, Debra had not returned the dog.

Debra filed a petition for bankruptcy (Chapter 7) on March 11. In the petition, she claimed joint ownership of the marital residence, unsecured debt exceeding $80,000, monthly income of $1,468, the amount of her support payment, and monthly expenses of $1,464. Special counsel for the trustee was subsequently allowed to intervene in the divorce action.

Following motion practice not relevant to this appeal, the trial took place on February 1, 2011. The trial judge entered a judgment of divorce on February 9. He placed a detailed oral decision concerning the financial issues on the record on May 12. An implementing amended judgment of divorce was entered on May 13. The judge awarded Debra limited term alimony and equitable distribution with respect to Steven's pension and the marital residence, which he found to have been purchased in anticipation of marriage. The judge awarded custody of the dog to Steven, terminated the daily $100 sanction, and allowed Steven a credit against his alimony obligation for the unpaid balance of the sanction.

Debra's efforts to stay the amended judgment were denied by the trial judge and by this court. Steven filed a motion for a stay and reconsideration on June 6. In a July 11 order that included a statement of reasons, the trial judge granted a stay pending appeal. He denied the motion for reconsideration, except for a change in the effective date of the taxability of the spousal support from May 13, the date of the amended judgment, to February 9, the date of the initial judgment of divorce. This appeal followed.

II.

On appeal, Steven argues that the judge should have credited all of his testimony because it was unrebutted and an adverse inference should have been drawn from Debra's failure to appear at trial, that the judge miscalculated the amount of the spousal support credit due him because of the accumulated sanctions resulting from Debra's failure to return the dog, that the judge failed to consider the amount of income Debra would receive from the pension Qualified Domestic Relations Order (QDRO) in calculating alimony, that the judge should have made the deductibility of his support obligation more retroactive than he did on reconsideration because Debra refused to file joint 2010 tax returns, and that the judge improperly determined that the marital residence and pension were subject to equitable distribution.

Generally, our review of a trial judge's factfinding is limited. Those findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Family Part factfinding receives particular deference "[b]ecause of the family courts' special jurisdiction and expertise in family matters[.]" Id. at 413. "Moreover, 'substantial weight' must be given to the [trial] judge's observations of the parties' 'demeanor, comprehension and speech' when they appeared before the court," Rolnick v. Rolnick, 262 N.J. Super. 343, 360 (App. Div. 1993) (quoting Barrie v. Barrie, 154 N.J. Super. 301, 307 (App. Div. 1977), certif. denied, 75 N.J. 601 (1978)), recognizing that "[t]he trial judge ha[s] the distinct advantage of observing the demeanor of the witnesses and a better opportunity to judge of their credibility than a reviewing court," ibid. (alterations in original) (quoting Friedman v. Friedman, 37 N.J. Super. 52, 57 (App. Div.), certif. denied, 20 N.J. 135 (1955)) (internal quotation marks omitted). Only upon a showing that the trial judge's conclusions are "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence" will we intervene to ensure there is not a 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)) (internal quotation marks omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We disagree with Steven's assertion that a Family Court judge conducting a divorce trial in which one party does not participate is required to decide all factual and equitable issues in favor of the participating party. Family Part judges exercise equitable powers and implement the State's statutory scheme for the protection of dependent spouses. See Sedarous v. Sedarous, 285 N.J. Super. 316, 325 (App. Div. 1995), certif. denied, 144 N.J. 172 (1996). While the trial judge did analogize the trial to a proof hearing, the judge had an obligation to exercise his broad equitable and statutory powers to produce a just result. Although we have determined that there is a need for reconsideration of some issues, we are satisfied that the trial judge's general approach to his task in this case fully conformed to that obligation.

We agree with Steven that the issue of alimony requires reconsideration. Our reading of the decision suggests that the judge did not consider Debra's receipt of pension income resulting from the equitable distribution of Steven's pension, but did consider Steven's receipt of his share of the pension income. We find that problematic, especially in light of the provisions of N.J.S.A. 2A:34-23(b) providing that "[w]hen a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony." For that reason, we remand for reconsideration of the amount of the limited-duration alimony, at which time the judge should also reconsider (1) the date upon which the support payments become taxable to Debra and (2) Steven's arguments with respect to the amount of the set-off due him for the unpaid sanctions resulting from Debra's failure to return the dog, which appear to have some merit but should be determined by the trial judge.

Having carefully considered the remaining arguments raised on appeal in light of the applicable law and the record before us, we affirm the remainder of the orders on appeal, essentially for the reasons set forth in the trial judge's oral and written decisions. We find, with respect to the remaining issues, that the judge thoughtfully relied upon the applicable law, that his findings of fact are amply supported by the record, and that he did not exercise his broad discretion in an arbitrary, capricious, or unreasonable manner.

A

1 Because the parties share the same last name, we refer to them by their first names for the purposes of this opinion.

2 We note that, because Debra did not participate in the divorce trial, Steven was the only fact witness. We further note that an attorney for the trustee handling Debra's bankruptcy in Illinois participated at the trial.