PAI-SU KANG v. STEPHAN T. LANAnnotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0
STEPHAN T. LAN,
May 18, 2015
Before Judges Yannotti, Hoffman and Whipple.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0558-08.
Pai-Su Kang, appellant, argued the cause pro se.
Jeffrey C. Green argued the cause for respondent (Green & Green, attorneys; Mr. Green, on the brief).
Plaintiff appeals from an April 2, 2013 final judgment of divorce, and related orders. Plaintiff separately appeals from an April 7, 2014 order denying reconsideration of a January 16, 2014 order enforcing the judgment of divorce and awarding counsel fees to defendant ex-husband. The appeals, calendared back-to-back, are consolidated for purposes of our opinion. We affirm in part, and reverse and remand in part.
Plaintiff filed a complaint for divorce on December 3, 2007. Discovery created significant problems, resulting in delay and a general lack of documentary evidence. After a 40-day trial, on April 2, 2013, Judge Anthony F. Picheca, Jr., issued a final judgment of divorce ("FJD") and a 122-page written decision.
We discern the following facts from the trial record. Plaintiff and defendant were both raised in Taiwan, but did not meet until 1997. They married in New Jersey on December 17, 1997. They had two children, a daughter born in 2000 and a son born in 2002.
Defendant earned a master's degree in industrial engineering and operation research. At the time of trial, he worked as a senior manager at Pfizer, earning an annual salary of $160,000.
Plaintiff earned a master's degree in nursing, and an MBA in finance. She was also licensed to sell insurance and investment products, and worked on commission as an insurance broker through her own business. The trial court found, and the parties do not substantively dispute that at the time of trial, plaintiff had an imputed annual income of $93,300.
The trial court awarded plaintiff three years of limited duration alimony, payable at a rate of $1875 per month. Plaintiff does not dispute the alimony award. Instead, plaintiff's appeals concern the equitable distribution of the marital property. The court set December 31, 2007, as the valuation date for all marital property subject to equitable distribution.
A. Familial Gifts, Loans, and Devises
The parties first lived in a home purchased by defendant prior to their meeting. Defendant testified that his parents loaned him $130,000 interest-free to purchase the home, in return for a promise to care for them in their old age. Defendant submitted evidence of an $80,000 transfer from his father. According to Defendant, he had not repaid any of the debt at the time of trial. The parties sold the home shortly after their wedding, and received net proceeds of $127,733.63.
Due to a lack of records, the disposition of these proceeds, as well as approximately $300,000 from the refinancing and sale of the parties' second home, became a significant issue at trial. Defendant alleged that plaintiff had been responsible for investing the money, and had failed to adequately respond to his discovery requests. Defendant disclaimed knowledge of how the money was invested or spent, and called for an explanation from plaintiff, arguing the funds may have been diverted to offshore accounts. Plaintiff's explanations were confused and sometimes contradictory. For example, plaintiff initially denied knowledge of the $127,733.63 from the sale of the first home, but later explained that $50,000 went towards their second home, $40,000 was returned to defendant's parents, and the rest went towards new furniture.
The parties purchased their third and final marital home in September 2006. Plaintiff and her mother both testified that the parties borrowed $190,000 from plaintiff's parents to finance the purchase. By oral agreement, they were to pay her parents $800 per month, representing interest on the loan. Bank statements showed that plaintiff's parents transferred approximately $190,000 to the parties' accounts between September 1, and September 29, 2006. Then, starting in August 2007, monthly $800 transfers were made into plaintiff's parents' account.
Plaintiff initially testified the entire $190,000 was paid to the seller at closing, but later admitted that her parents transferred $50,000 after the closing. She explained that the transfer covered $50,000 she had temporarily drawn from her business accounts to cover closing costs. Plaintiff also failed to list the loan from her parents in her original case information statement, and described the loan as a gift in her answers to interrogatories. She explained that these were mistakes made by her former attorney.
Defendant denied the loan from plaintiff's parents. He explained that plaintiff transferred money into her parent's accounts in order to evade taxes. According to defendant, plaintiff was the named agent on her parents' accounts. Defendant presented no evidence to support his position, but explained that plaintiff had refused to relinquish the relevant documents.
Plaintiff's brother also testified that he had loaned plaintiff approximately $3000 in March 2007, and that the loan had not been repaid. There was no documentation of the loan, and defendant disclaimed any knowledge of its existence.
In January 2004, defendant's mother died, devising her house in Taiwan to defendant. According to plaintiff, Taiwanese tradition provided that the family home passed to the eldest son and his family. Nevertheless, only defendant's name appears on the legal documents.
Defendant's father continued to reside in the house in Taiwan rent free, and lived off of the rent from the first-floor tenant. According to defendant, he provided no other monetary support his father. Plaintiff testified that they gave defendant's father approximately $700 per year. Tax returns show that the parties had claimed defendant's parents as dependents.
The trial court exempted the house in Taiwan from equitable distribution as a devise to defendant. As to the various family loans alleged by plaintiff and defendant, as well as the untraceable proceeds from the second home, the court found that neither party had met his or her burden, and rejected all such claims.
In rejecting the alleged loan from plaintiff's parents, the court considered plaintiff's inability to account for the proceeds from the sale and refinancing of the prior home, as well as the irregularity in the timing of the transfers from her parent's accounts. The court found the testimony of plaintiff and her mother to be "confused, incomplete, inconsistent, and, at times, less than credible and all to[o] convenient." As plaintiff failed to demonstrate the existence of the loan, the court also concluded that defendant should receive a $6000 credit for half of the fifteen $800 payments to plaintiff's parents.
B. Plaintiff's Business
The parties disputed the value of plaintiff's business. Howard A. Rauch, CPA, testified as a financial expert for defendant. He noted that plaintiff was uncooperative, failed to answer his questions, and failed to provide information regarding her 2008 tax return.
Reviewing plaintiff's tax returns from 2004 through 2007, Roach removed deductions for several private expenses attributed to plaintiff's business in order "to reflect the true income benefits available to the business owner[.]" Such expenses included the ownership and use of three separate luxury vehicles. Plaintiff argued that her accountant had already adjusted the business' income to account for those expenses.
One expense, labeled "outside services," totaled $65,500 in 2006. Plaintiff claimed these expenses represented shared commissions or referral fees. Roach nevertheless struck the deduction, finding plaintiff failed to provide documentation supporting her claims. Roach concluded plaintiff's normalized earnings were $53,989, and, after calculations, valued her business at $236,952.
Plaintiff's financial expert, Joseph A. DeCusati, CPA, disagreed with the expenses that Roach credited back to plaintiff's business. DeCusati's calculations also gave greater weight to the importance of personal relationships in plaintiff's business and to the fact that plaintiff's heavy focus on Asian clientele narrowed her customer base. He found that the business had a negative cash flow, no value, and concluded that no "prospective buyer would buy" it.
Jim Zhang, CPA, the parties' accountant since 2005, testified on behalf of plaintiff. He testified that the Internal Revenue Service ("IRS") audited plaintiff's business for the 2005 and 2006 tax years, and made no changes to her tax deductions. Zhang concluded that the returns therefore accurately reflected the business' expenses.
The parties agreed that plaintiff lost a major client in 2008. Defendant believed plaintiff was having an affair with the client, and confronted him. According to plaintiff, defendant damaged the client's car. Defendant denied damaging the car.
The trial court attributed a fair market value of $88,875 to plaintiff's business, and found defendant had an equitable interest of $33,000. Although the court thoroughly summarized the relevant evidence, it did not explain its valuation, or the weight and credibility allotted to the experts' opinions.
C. Retirement Accounts
The trial court distributed the parties' retirement accounts by totaling the value of the accounts of each party and awarding half of the difference to defendant, whose account held the lesser value. The parties disputed the valuation of several accounts, and the court credited defendant over plaintiff, adopting defendant's exhibit summarizing the funds. Attributing $190,716.10 in marital assets to defendant, and $257,954.72 to plaintiff, the court found plaintiff owed defendant $33,619.31.
1. Plaintiff's Post-Complaint Contributions
In September 2008, plaintiff opened a new Cornerstone retirement account, depositing $11,000 from her checking account and $59,000 rolled over from her American Funds retirement account. Plaintiff also made $13,507 in other cash contributions to her retirement accounts during 2008. However, plaintiff's 2007 tax returns show that plaintiff attributed $8909 of those cash contributions to the 2007 tax year.
Defendant's summary of plaintiff's accounts included the $68,813.12 pre-transfer value of the American Funds retirement account, as well as the $75,269 post-transfer value of the Cornerstone retirement account. Defendant's valuation of the Cornerstone retirement account was based upon excerpts from plaintiff's 2008 tax return, which stated that plaintiff contributed $75,269 to the account in 2008.
The court drew an adverse inference from plaintiff's failure to produce her full 2008 tax return, and found that all of her cash deposits, although made in 2008, represented her 2007 retirement contributions. Thus, the court rejected plaintiff's argument that the money had been earned in 2008. The court also relied on defendant's exhibits, which counted both the Cornerstone retirement account and the American Funds retirement account, double-counting the $59,000 rolled from one into the other.
2. Plaintiff's Wells Fargo Retirement Accounts
Defendant alleged that plaintiff had two separate Wells Fargo retirement accounts, one containing $6053.39, and the other $6698.64. Plaintiff countered that these accounts were one and the same, and that the different account numbers resulted from a change in the account custodian. Plaintiff introduced records showing that, on corresponding dates, the two accounts contained the exact same amount of money, invested in the exact same number of shares, and earning the exact same dividends. As of December 31, 2007, the latter account had a market value of $6,598.54. Plaintiff further demonstrated that defendant had similar double accounts with Wells Fargo, but only counted his own accounts once. Defendant also incorrectly valued his own accounts at $7687.02, despite a statement showing a total of $9290.10.
The trial court accepted defendant's summary, discrediting plaintiff, and counted both of plaintiff's accounts but only one of defendant's accounts. The court attributed $12,752.03 to plaintiff and $7687.02 to defendant.
3. Defendant's Retirement Accounts
The parties disputed whether defendant's $32,176.85 Oppenheimer retirement account contained funds invested prior to the marriage. Defendant alleged that the funds were rolled over from his pre-marital employment, where he worked sixty-nine months before marriage and eleven months while married. Defendant argued that the funds should be divided by the proportion of months worked before and after the wedding. However, defendant admitted that plaintiff had controlled the retirement accounts, and that he did not understand them.
Plaintiff submitted statements showing that the Oppenheimer retirement account was opened in 1999, and consisted of small contributions made over several years. She alleged that she had instead rolled the account from defendant's pre-marital employer into his $61,068.67 American Funds retirement account.
Plaintiff also argued that the exemption proposed by defendant was inappropriate because defendant could not have contributed to the retirement account for the first year of his employment, and because defendant's contributions increased over the course of his job. Defendant countered that he began contributing two or three months into the job, and maximized his contributions throughout. Neither party submitted documentary evidence regarding defendant's pre-marital contributions.
The trial court credited defendant over plaintiff, and reduced both the Oppenheimer and American Funds retirement accounts, exempting sixty-eight out of seventy-nine months defendant worked before the wedding on a pro rata basis. The court therefore exempted $27,696.53 from the $32,176.85 in the Oppenheimer retirement account, and $52,565.44 from the $61,068.67 in the American Funds retirement account.
Defendant submitted documents showing that his Pfizer retirement account contained $170,045,63 on January 1, 2008. Presently, plaintiff alleges that the statement was inaccurate, as defendant took a $30,000 loan against the account after the complaint was filed, but before January 1, 2008. However, the statement reflects that defendant took the loan later in 2008, and that the January 1, 2008 valuation did not include the loan.
D. Defendant's Stock Options
Pfizer gave defendant unvested stock options in 2007 and 2008. On February 22, 2007, Pfizer gave defendant 1360 non-restricted options, and 272 restricted units. According to defendant, the restricted units had a potential value of $5,236. Then, on February 28, 2008, Pfizer gave defendant 2240 non-restricted options, and 448 restricted units. Defendant's records indicate that the restricted units had a potential value of between $8208 and $8804. All of the options vested three years after Pfizer awarded them to defendant.
The trial court allotted half of the non-restricted 2007 options to plaintiff, and credited her with half the potential value of the 2007 restricted units. Without elaboration, the court concluded that plaintiff was not entitled to options awarded in 2008.
E. Tax Credits
The parties filed joint tax returns in 2006. After setting aside $20,000 of their federal tax refund towards their 2007 tax, they received a federal tax refund of $18,346. They also set aside $2682 from their state tax refund towards the next year's taxes. After filing her complaint, plaintiff transferred half of the federal refund, or $9173, to defendant.
Defendant submitted a summary of the parties' non-retirement bank accounts as of December 3, 2007. As plaintiff transferred $9173 to defendant after that date, defendant exempted $18,346 of plaintiff's funds from equitable distribution. This accurately reflected the transfer because the summary overstated plaintiff's accounts by $9173 and understated defendant's accounts by $9173.
The court accepted defendant's summary, but exempted an additional $18,000 from plaintiff's accounts. The court attributed $9000 to an undefined agreement by the parties, and provided no explanation for the other $9000. Accordingly, the court reduced plaintiff's accounts from $74,350.19 to $56,350.19.
The parties filed separate tax returns in 2007. Defendant claimed $10,000 of the 2006 state and federal credits set aside in the previous year's refunds, while plaintiff claimed the full $22,682. According to defendant, the IRS allotted the full $20,000 federal credit to plaintiff, and none to defendant.
In total, defendant owed $24,740 in taxes. After an offset for $50,698 in withholdings, he received a refund of $25,958. Plaintiff owed $3977 in taxes. After the offset for $22,682 from the 2006 tax credit, she received a refund of $19,342. In November 2008, Plaintiff also received a $663 economic stimulus payment.
Plaintiff argued that the two 2007 tax refunds should have been adjusted to be equal, with the result that defendant owed plaintiff $3308. Defendant submitted a document wherein he subtracted the total tax liabilities from the refunds paid, despite the fact that, after the offsets, neither party paid any taxes. Defendant also accounted for an equal share in plaintiff's 2008 economic stimulus payment, and concluded that plaintiff owed defendant $7405. The trial court credited defendant and adopted his calculations.
F. Plaintiff's Failed Investment
In 2004, plaintiff loaned $252,000 to her acquaintance, M.S., for a real estate investment. According to plaintiff, her relationship with M.S. was merely a business acquaintance, and defendant knew of the loan. However, defendant testified that he knew nothing about M.S. until February 2007, when he discovered evidence of an affair between plaintiff and M.S.
An email sent by M.S. to plaintiff in February 2007 corroborated the existence of the affair. Plaintiff claimed that defendant fabricated the email, and initially maintained that they had not owned a desktop computer at the time. However, when confronted with photographs, she eventually admitted that they had owned a desktop computer.
According to plaintiff, her parents provided approximately $120,000 of the loan to M.S. Bank documents reflect the transfer of this sum from her parent's account to the parties' joint account in September 2004. Plaintiff argued that defendant had full control of their joint account, but the fund transfers to M.S. were handwritten by plaintiff. Defendant reiterated that plaintiff's parents' accounts were set up with the parties' money in order to avoid taxes.
According to a report written by an official from the Division of Youth and Family Services, plaintiff admitted to the affair, and to transferring the money to M.S. without defendant's knowledge. Plaintiff denied this admission.
When plaintiff tried to collect the loan from M.S., he told her that an employee had stolen the money. According to plaintiff, when she asked for documentation, M.S. "disappeared." She sued M.S., and, in April 2006, obtained a default judgment for $317,042.24. However, she was unable to collect. Plaintiff maintained that defendant was involved throughout the legal proceedings, but, when confronted with the paperwork, admitted she was the sole plaintiff in the lawsuit and the only person who signed the collection contract.
Plaintiff recorded the loss of the loan to M.S. on her 2005, 2006, and 2007 income taxes as a $371,0421 capital loss. When asked why she failed to report that the loan was made, in part, with her parents' money, plaintiff alleged that she borrowed the money from her parents to make the investment, and therefore it was plaintiff's loss.
Then, in March 2007, plaintiff purchased a property from M.S. for $540,000. Defendant was not involved in the purchase. When asked why she had not levied the loan judgment against the property, plaintiff explained that she had not known it was an option.
As to the loan to M.S., the court found plaintiff to be "disingenuous, inconsistent, incomplete and not credible." The court attributed the dealings with M.S. to plaintiff's unilateral actions, and credited defendant with half the value of the lost $252,000 loan. Plaintiff retained sole ownership of the judgment against M.S. The court did not address, and the parties do not presently dispute, ownership of the property plaintiff purchased from M.S.
In total, the FJD ordered plaintiff to pay defendant $229,223.73, representing $6000 for the money paid to plaintiff's parents, $33,000 for defendant's share of plaintiff's business, $126,000 for the failed investment with M.S., $33,619.31 to equalize retirement accounts, $21,199.42 to equalize non-retirement bank accounts, $7405 to equalize the 2007 tax refunds, and $2000 to equalize the value of the parties' vehicles. In addition, the parties were to divide all non-liquid investments equally within thirty days.
A. Appeal of the FJD
Plaintiff filed her first notice of appeal on May 16, 2013, disputing $101,233.72 of the FJD awarded to defendant, and leaving $128,000 of the FJD undisputed. In that appeal, plaintiff argues the trial court erred in: (1) denying the existence of the loan to plaintiff's parents; (2) including plaintiff's 2008 retirement account contributions in the equitable distribution; (3) double-counting plaintiff's Wells Fargo retirement account; (4) failing to distribute defendant's 2008 stock options; (5) failing to properly account for the loan against defendant's retirement account; (6) failing to properly account for the 2006 and 2007 tax refunds; (7) exempting the house in Taiwan from equitable distribution; (8) providing insufficient reasoning for the valuation of plaintiff's business; (9) awarding defendant with half the value of the failed investment with M.S.; (10) miscalculating the equitable distribution of the non-retirement bank accounts; (11) sanctioning plaintiff for failure to pay her former trial attorney's fees; and (12) denying the existence of the loan to plaintiff's brother.
B. Appeal of the April 7, 2014 Order
Plaintiff moved before the trial court to stay the judgment pending appeal, and on July 22, 2013, the trial court denied plaintiff's motion. The court also ordered plaintiff to pay defendant $128,000 within sixty days. Then, on August 30, 2013, this court similarly denied plaintiff's motion for stay pending appeal.
Between April 2, 2013, and January 16, 2014, plaintiff paid defendant $3590.88. Defendant moved to enforce litigant's rights. On January 16, 2014, the trial court filed an order and written decision reiterating plaintiff's obligations, and instructing her to pay defendant the outstanding $225,642.842 within sixty days. The court also awarded defendant $750 in attorney's fees, to be paid within thirty days. The court rejected plaintiff's argument that she was unable to satisfy the judgment, stating, "The court is not in possession of enough information to determine, at this time, whether plaintiff is truly without means to meet the obligations assigned to her."
A note written on the January 16, 2014 order states, "Copy Sent 1/16/14[.]" The order concludes, "The moving party shall serve a copy of this [o]rder upon all parties within seven days of receipt . . . ." By letter dated January 22, 2014, defendant's counsel forwarded the January 16, 2014 order to plaintiff's trial counsel via fax and lawyer's service. By letter dated January 24, 2014, plaintiff's counsel mailed a copy to plaintiff. Plaintiff later certified that she received the order "on or about January 28, ."
Plaintiff, now self-represented, filed a motion for reconsideration. Plaintiff's motion relied upon an affidavit from Zhang regarding her income and lack of assets. According to plaintiff, she mailed the motion to the court on February 12, 2014, via United States Postal Service ("USPS") priority one-day mail. Plaintiff's "Click-N-Ship" label is dated February 12, 2014, but USPS tracking records indicate "Acceptance" of the documents on February 15, 2014.
On the afternoon of Wednesday, February 12, 2014, Governor Chris Christie declared a state of emergency, and the Administrative Office of the Courts closed the courts on Thursday, February 13, 2014. Notice to the Bar, Feb. 12, 2014 Deemed Legal Holiday for Deadline Purposes (Feb. 24, 2014), 215 N.J.L.J. 458. Plaintiff alleges that the courts were also closed on Friday, February 14, 2014, but there is no evidence, either in the present record or in public records, that the Somerset County Courts were closed.
Monday, February 17, 2014, was President's Day a national holiday during which both the courts and USPS were closed. Nevertheless, USPS delivered the motion to the trial court at 1:08 p.m. The court filed the motion on Tuesday, February 18, 2014.
Defendant cross-moved on February 27, 2014, to again enforce litigant's rights. Plaintiff filed her reply on March 10, 2014.
The trial court heard oral argument on March 14, 2014, and issued its order and written decision on April 7, 2014. The court found that it sent the January 16, 2014 order to plaintiff's counsel on January 16, 2014, and imputed plaintiff's receipt of the order to January 23, 2014, one week later. Finding that the motion for reconsideration was not filed until February 18, 2014, the court concluded that the motion "was filed beyond the [Rule 4:49-2] twenty day time limit . . . [and] must be denied."
The court did not directly address whether the substance of plaintiff's motion for reconsideration was meritorious. Nevertheless, in addressing defendant's cross-motion to enforce litigant's rights, the court addressed plaintiff's allegations, rejecting her contention that she was unable to satisfy the underlying judgment. The court found that plaintiff's expenditures were "grossly out of line with her reported income[,]" and that it was clear that any alleged financial difficulties were "her own creation." The court did not consider plaintiff's reply brief, concluding that it was untimely.
The trial court ordered plaintiff to pay defendant $225,723.84,3 as well as the $750 in attorney's fees from the January 16, 2014 order, within fourteen days. The court provided that an additional $900 in sanctions would be automatically imposed if plaintiff failed to comply.
Plaintiff's second appeal followed. In that appeal, plaintiff argues: (1) her motion for reconsideration was filed within the twenty-day time limit; (2) the motion to enforce litigant's rights should have been considered interlocutory, and therefore open to revision; (3) the trial court abused its discretion by awarding attorney's fees; and (4) the court abused its discretion by granting defendant's cross-motion.
We first turn to the issues raised in plaintiff's appeal from the FJD. We give particular deference to "the family courts' special jurisdiction and expertise in family matters," Cesare v. Cesare, 154 N.J. 394, 413 (1998), and will only disturb the trial court's fact finding if it is "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, (1974). However, we review issues of law de novo. R.K. v. F.K., 437 N.J. Super. 58, 61 (App. Div. 2014).
"Appellate review pertaining to the division of marital assets is narrow." Valentino v. Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998).
We decide whether the trial judge mistakenly exercised its broad authority to divide the parties' property and whether the result was 'reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence.'
[Ibid. (quoting Wadlow v. Wadlow, 200 N.J. Super. 372, 382 (App. Div. 1985)).]
Deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).
We summarily affirm as to the alleged loans from plaintiff's parents and brother, the property in Taiwan, and the failed investment with M.S. for the reasons stated in Judge Picheca's opinion. R. 2:11-3(e)(1)(E). As to the loans, the burden of proving an asset is immune from equitable distribution rests upon the spouse who asserts it, Pacifico v. Pacifico, 190 N.J. 258, 269 (2007), and, due to the lack of clear evidence, the trial court did not err in finding that plaintiff failed to meet her burden. As to the property in Taiwan, property given via gift, devise, or intestate succession is not subject to equitable distribution, N.J.S.A. 2A:34-23h, and the record demonstrates that plaintiff did not share in the inheritance.
Regarding the investment with M.S., the record supports the finding that plaintiff transferred marital funds without defendant's knowledge, and concealed the subsequent legal action. The court credited defendant with half the value of the original $252,000 loan, while plaintiff retained the full $317,042.24 judgment against M.S. The trial court need not divide all assets equally, Monte v. Monte, 212 N.J. Super. 557, 567 (App. Div. 1986), and this equitable resolution was within the court's discretion.
The trial court's valuation of plaintiff's business is less clear. "[T]he trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). Inadequate findings necessitate reversal for reconsideration and explanation. Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996). Here, the court accurately summarized the record and cited the relevant law, but provided no explanation for its decision. Accordingly, we have no basis to evaluate the court's finding, and must reverse.
We further discern several errors in the trial court's valuation of the parties' retirement accounts and tax credits. First, by adopting defendant's summary of the retirement accounts, the court clearly double-counted the $59,000 rolled over from plaintiff's American Funds retirement account into her Cornerstone retirement account. However, we discern no error in counting the $24,507 in cash contributions plaintiff made to her retirement accounts in 2008. The burden rested on plaintiff to show that those funds were exempt from equitable distribution, and the record is unclear as to whether those funds were compensation for work performed in 2007, or whether those funds were not paid into plaintiff's personal accounts until 2008. Accordingly, the court did not err in applying an adverse inference against plaintiff and adding the $24,507 to plaintiff's share of equitable distribution.
Second, despite the different account numbers, it is clear that plaintiff's two Wells Fargo retirement accounts are one and the same. As discussed, the account statements show the exact same amount of money, invested in the exact same number of shares, and earning the exact same dividends. Moreover, despite having similar double accounts with Wells Fargo, defendant only counted one of his own accounts, and incorrectly undervalued that account by $1603.08. Accordingly, by adopting defendant's summary, the court further overvalued plaintiff's retirement accounts by $6153.49, and undervalued defendant's retirement accounts by $1603.08.
Third, as to defendant's retirement accounts, the record demonstrates that plaintiff rolled over defendant's pre-marriage accounts into defendant's $61,068.67 American Funds retirement account, and not into his $32,176.85 Oppenheimer retirement account. Therefore, the trial court erred in exempting $27,696.53 from defendant's Oppenheimer retirement account. However, absent any records regarding defendant's pre-marital retirement contributions, we discern no error in the court's application of a pro rata exemption based upon the duration of defendant's pre and post-marriage employment, and we affirm as to defendant's American Funds retirement account. We also affirm regarding the loan against defendant's accounts, as it occurred after the valuation date.
The trial court found that the unvested stock options awarded to defendant in 2008 were not subject to equitable distribution. Plaintiff argues that these options were compensation for work performed in 2007, but failed to offer any evidence in support of this claim. Employers often award unvested options in order to provide future incentives. See Robertson v. Robertson, 381 N.J. Super. 199, 205 (App. Div. 2005). Accordingly, we discern no error in finding that defendant's 2008 stock options were not compensation for past labor, and affirm the trial court in exempting those options from equitable distribution.
Fourth, the trial court incorrectly calculated the equitable distribution of the parties' tax refunds. A tax refund equates to the offset for withholdings or credits minus the tax liability. Defendant's summary relies on the refund minus the liability, which equates to no meaningful figure, and represents the offset minus twice the liability. Where both parties receive a tax refund, and when the entire year's earnings are subject to equitable distribution, the proper solution is to simply equalize the refunds. Defendant received $25,958, and plaintiff received $19,342. Accordingly, as plaintiff claimed, defendant owed plaintiff $3308.
We also discern no basis for defendant to share in the $663 economic stimulus payment defendant received in November 2008. As to the $18,000 in exemptions from plaintiff's non-retirement accounts, the trial court failed to adequately explain its finding.
In total, the trial court overvalued plaintiff's retirement accounts by $65,153.49, and undervalued defendant's retirement accounts by $1603.08. As a result, the FJD must be amended to reduce plaintiff's retirement account liability by $33,378.28. Similarly, the FJD must be amended to reflect a $3308 credit to plaintiff to equalize the 2007 tax refunds.4 As to the value of plaintiff's business, as well as the $18,000 exempted from plaintiff's non-retirement accounts, we reverse and remand for reconsideration of the existing record.
Regarding the fee award to plaintiff's prior counsel, as plaintiff did not raise the issue in her notice of appeal, or provide notice to the interested party, we decline to address the issue. To the extent we have not specifically addressed any of the arguments raised in plaintiff's first appeal, we find them to be without sufficient merit to warrant additional discussion. R. 2:11-3(e)(1)(E).
In plaintiff's second appeal, she argues that she filed her motion for reconsideration in a timely manner, and that the court otherwise erred by awarding attorney's fees and granting defendant's cross-motion to enforce litigant's rights. Reconsideration rests within the sound discretion of the trial court. Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 599 (App. Div. 2014). Reconsideration is appropriate where: the court's prior decision was palpably incorrect; the court failed to consider probative, competent evidence; or the movant submits previously unavailable evidence. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). As usual, we give no special deference to the trial court's legal interpretations. Giannakopoulos, supra, 438 N.J. Super. at 599.
Rule 4:49-2 provides that a motion for reconsideration "shall be served not later than [twenty] days after service of the [prior] judgment or order upon all parties by the party obtaining it." Neither the parties nor the trial court can postpone this deadline. R. 1:3-4(c).
We do not count the day the prior order was served on the movant against the deadline, and a filing on day of the deadline is timely. R. 1:3-1. If the deadline occurs on "a Saturday, Sunday or legal holiday," then it is postponed until the next day which is "neither a Saturday, Sunday nor legal holiday." Ibid.
Here, the underlying motion was to enforce litigant's rights post-judgment, and was not interlocutory. The trial court imputed plaintiff's receipt of the prior order to January 23, 2014. Even assuming the trial court erred, plaintiff's counsel clearly received the order by January 24, 2014. Accordingly, the time for filing a motion for reconsideration under Rule 4:49-2 began on or before that date.
Twenty days from January 24, 2014, was February 13, 2014. Although the court was closed for snow on that day, it was open on February 14, 2014. Therefore, plaintiff's motion was due on February 14, 2014, but she did not mail it until February 15, 2014, and it was not filed until February 18, 2014. Accordingly, the trial court did not err in finding that her motion was untimely.
Moreover, although plaintiff presented a newly created affidavit, the information contained within was available at the time of the prior motion. Even if plaintiff had filed her motion in a timely manner, we discern no grounds for the trial court to grant reconsideration. Therefore, we affirm the denial of plaintiff's motion.
As to defendant's cross-motion and the attorney's fee award, we affirm summarily. R. 2:11-3(e)(1)(E). We briefly note that plaintiff failed to show she was unable to comply with the underlying judgment, and the sanction imposed was well calculated to be coercive but not unduly punitive. See Franklin Twp. Bd. of Educ. v. Quakertown Educ. Ass'n, 274 N.J. Super. 47, 55-56 (App. Div. 1994). The fee award derived from the trial court's January 16, 2014 order, and plaintiff failed to provide the transcript of the pertinent hearing. Accordingly, we cannot meaningfully review the award. See In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000).
We therefore reverse, in part and remand for the trial court to amend the FJD to reflect required adjustments to the division of the retirement accounts and the tax refunds, as identified in this opinion, and for the court to provide its reasons for its valuation of plaintiff's business and the $18,000 of plaintiff's non-retirement accounts exempted from equitable distribution. As to the remainder of the FJD, and the court's April 7, 2014 order, we affirm.
Affirmed, in part, and reversed and remanded, in part. We do not retain jurisdiction.
1 By transposing two digits, plaintiff overstated the loss by $54,000.
2 The January 16, 2014 order, although arriving at the correct total, includes a clerical error confusing the sum of $124,490.12 with the sum of $124,409.12. This error is repeated and formalized in the court's April 4, 2014 order.
3 This sum incorporated the error made on the January 16, 2014 order, and was $81 more than plaintiff actually owed.
4 As the trial court incorporated the economic stimulus payment into the distribution of the tax funds, this adjustment also corrects the equitable distribution of the economic stimulus payment.