LILLIAN DOBRE v. NIKSA DOBRE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1315-15T2
LILLIAN DOBRE,
Plaintiff-Appellant/
Cross-Respondent,
v.
NIKSA DOBRE,
Defendant-Respondent/
Cross-Appellant.
_________________________________
Argued March 6, 2018 – Decided April 20, 2018
Before Judges Reisner, Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FM-16-1270-13.
Peter R. Bray argued the cause for
appellant/cross-respondent.
Ronda Casson Cotroneo argued the cause for
respondent/cross-appellant.
PER CURIAM
Plaintiff Lillian Dobre appeals, and defendant Niksa Dobre
cross-appeals, from their October 13, 2015 dual final judgment of
divorce (JOD).1 For the reasons that follow, we affirm in part,
and reverse and remand in part.
I.
The parties married in 2004 and had three children; at the
time of the divorce, their ages were nine, seven, and four. In
March 2013, plaintiff filed a complaint for divorce, seeking
dissolution of the marriage, incorporation of the parties'
prenuptial agreement into the JOD, joint legal and physical custody
of the children, child support, and equitable distribution.
Defendant's answer and counterclaim for divorce sought
nullification of the prenuptial agreement and other relief.
Trial commenced in February 2015, and spanned ten non-
consecutive days, ending in April 2015. During the trial, the
judge issued a letter decision setting aside the prenuptial
agreement. According to plaintiff, the court issued a written
1
Plaintiff's amended notice of appeal states she appeals from
the trial court's December 3, 2015 order, and defendant's notice
of cross-appeal lists the trial court's November 6, 2015 order.
Both of these orders pertain to the attorneys' fees award to
defendant and his counsel. Because the parties' briefs clearly
indicate they also intended to appeal from the JOD, we exercise
our discretion and consider the entirety of the parties' arguments.
But see W.H. Indus., Inc. v. Fundicao Balancins, Ltda,
397 N.J.
Super. 455, 458 (App. Div. 2008) ("It is clear that it is only the
orders designated in the notice of appeal that are subject to the
appeal process and review.").
2 A-1315-15T2
opinion in July 2015,2 and on October 13, 2015, the court entered
the JOD.
In August 2015, plaintiff filed a motion for reconsideration,
and defendant filed a cross-motion for reconsideration. The court
addressed the parties' motions in two orders, both filed on
November 4, 2015.
The judge issued a written decision dated November 5, 2015
in connection with the parties' applications for attorneys' fees,
and by way of a November 6, 2015 order, the court awarded
attorneys' fees to defendant's counsel, requiring plaintiff "to
pay $59,910 [in] counsel fees to defendant's attorney." Shortly
thereafter, plaintiff filed a notice of appeal, and defendant
filed a cross- appeal.
On December 3, 2015, the court conducted a hearing on
plaintiff's motion for a stay and defendant's application for
entry of judgment. Following the hearing, the court issued two
orders — one entered judgment against plaintiff in favor of
defendant's attorneys for the $59,910 counsel fee award and the
other entered judgment against plaintiff in favor of defendant for
$300,459, representing the equitable distribution owing to
defendant. The judge further denied plaintiff's motion for a
2
The opinion contained within the record lacks a date.
3 A-1315-15T2
stay, but stated he would grant a stay if plaintiff posted a bond.
This occurred, and the judge entered an order granting a stay
pending the outcome of this appeal.
On April 8, 2016, while the instant appeal remained pending,
plaintiff moved to correct an error in the attorneys' fee award;
defendant filed a cross-motion on a related issue. The trial
judge stated he was "incorrect on the law," because the attorneys'
fees order should have been entered in favor of defendant, not his
attorney. However, the judge stated he lacked jurisdiction to
revise the mistake because of this pending appeal. Defendant's
trial counsel filed a motion to intervene, which the judge denied.
II.
Appellate "review of a trial court's fact-finding function
is limited." Cesare v. Cesare,
154 N.J. 394, 411 (1998). "The
general rule is that findings by the trial court are binding on
appeal when supported by adequate, substantial, credible
evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Inv'rs
Ins. Co. of Am.,
65 N.J. 474, 484 (1974)). This is particularly
true in matters emanating from the Family Part, because of its
special expertise. Ibid. Consequently, the factual findings and
legal conclusions reached by the Family Part trial judge will not
be set aside unless the court is "'convinced that they are so
manifestly unsupported by or inconsistent with the competent,
4 A-1315-15T2
relevant and reasonably credible evidence as to offend the
interests of justice' or . . . we determine the court has palpably
abused its discretion." Parish v. Parish,
412 N.J. Super. 39, 47
(App. Div. 2010) (quoting Cesare,
154 N.J. at 412). However, no
special deference is owed to the trial court's conclusions of law.
Manalapan Realty, LP v. Twp. Comm. of Manalapan,
140 N.J. 366, 378
(1995).
Moreover, trial courts have broad discretion to allocate
marital assets subject to equitable distribution. Clark v. Clark,
429 N.J. Super. 61, 71 (App. Div. 2012). "Where the issue on
appeal concerns which assets are available for distribution or the
valuation of those assets, . . . the standard of review is whether
the trial judge's findings are supported by adequate credible
evidence in the record." Borodinksky v. Borodinksy,
162 N.J.
Super. 437, 443-44 (App. Div. 1978). "[W]here the issue on appeal
concerns the manner in which allocation of the eligible assets is
made," the appellate court reviews for abuse of discretion. Id.
at 444. Accordingly, "we will affirm an equitable distribution
as long as the trial court could reasonably have reached its result
from the evidence presented, and the award is not distorted by
legal or factual mistake." La Sala v. La Sala,
335 N.J. Super.
1, 6 (App. Div. 2000).
5 A-1315-15T2
III.
On appeal, plaintiff challenges the court's decision
nullifying their prenuptial agreement, along with the court's
rulings on equitable distribution, child support, and attorneys'
fees. She also contends the judge erred in requiring immediate
payment of the equitable distribution and attorneys' fees awards.
Defendant's cross-appeal challenges the court's failure to adopt
his parenting plan, and contends the court erred in failing to
impute additional income to plaintiff. We address the arguments,
and their attendant facts, in turn.
A. Prenuptial Agreement
The parties met in 2003, and soon after made plans to marry.
Plaintiff testified defendant came to the United States in 1999,
five years before their marriage. Defendant's first language is
Serbian, but plaintiff maintains defendant could read and write
English. Plaintiff also speaks Serbian, and the parties conversed
in both languages.
Defendant testified he was born in Croatia and moved to the
United States in 2001. He first entered the country on a six-
month tourist visa and then, after the events on September 11,
2001, he had an opportunity to work for a "newspaper-agency from
Montenegro" under a media visa. Defendant obtained the media visa
with the help of his immigration attorney, George Akst. He
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remained on visa status until obtaining a green card, following
his marriage to plaintiff.
Plaintiff testified she refused to marry defendant without a
prenuptial agreement, "[b]ecause he wasn't a citizen and [she]
didn't know if he was marrying [her] just for papers or for love."
She claimed she also wanted to retain gifts she received from her
wealthy mother. Plaintiff testified defendant "was more than okay
with it, because he wanted [to obtain] citizenship."
Plaintiff owned several properties prior to her marriage to
defendant; on this appeal, the parties dispute the disposition of
two parcels in Totowa — one on Battle Ridge Trail and one on
Francis Street. Plaintiff bought the Battle Ridge Trail property
with her first husband in 1997; when they divorced in 2002,
plaintiff purchased her first husband's share of the property for
$135,000. At the time of her marriage to defendant, plaintiff
still had a mortgage on the property.
Plaintiff's mother purchased the Francis Street property – a
two-family house – as an investment property; in 2003, she
transferred the property to plaintiff. Plaintiff's mother paid
off the mortgage on the property sometime around 2005. According
to plaintiff, several months before their marriage, she and
defendant discussed in both English and Serbian those properties,
her debts, and "how things were gifted to [her]."
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Plaintiff testified she hired Robert Nussbaum, an attorney
she did not previously know, to prepare the prenuptial agreement.
The agreement addresses only "[a]ssets and debts," and does not
reference child support. It states, among other things, that
[i]n the event that either party herein
receives additional assets, in his or her name
alone, by way of gift, devise or bequeath,
then said assets in said party's name and all
increments thereto may be kept and retained
in said sole ownership, enjoyment[,] control
and power of disposal of said party free and
clear of any interest rights or claim of the
other.
. . . .
In the event of a[] . . . final divorce
between the parties hereto, each agrees that
there shall be no equitable distribution of
the assets set forth [herein] . . . but each
shall keep and retain sole
ownership . . . free and clear of any
interest, rights or claims of the other.
The agreement also provides, "The parties do further warrant
and represent that a schedule of the assets of each of them is
attached to this agreement and made a part here of." The agreement
contains an attachment, labeled Schedule A, which purports to
identify plaintiff's assets and liabilities.3 The schedule lists
values for the Battle Ridge Trail and Frances Street properties,
with each parcel followed by "(see appraisal)." The schedule also
3
The agreement does not contain a schedule listing the assets
and liabilities of defendant.
8 A-1315-15T2
lists values for two bank accounts and a 401(k) account, with each
account listing followed by "(see annexed)." Notwithstanding the
phrase "see appraisal" and "see annexed," no appraisals or account
statements are attached to the agreement. The schedule also lists
"Oldja Developers, LLC (Membership Interest)" and "Oldja
Developers, LLC (Stock Interest)" and indicates "unknown value"
for each asset. The schedule lists two debts for plaintiff (a
mortgage and a credit line). Finally, the schedule references
plaintiff's 2002 tax return, followed by "(see annexed);" once
again, the referenced document is not attached.
The agreement states the parties "have each been
independently represented with respect to the negotiations and
preparation of this agreement"; however, the agreement does not
identify either party's attorney. Plaintiff testified that
defendant hired Akst to review the agreement on his behalf, and
she believed defendant paid the attorney himself. She further
testified she and defendant signed the agreement at Akst's New
York City office on July 6, 2004, with a notary present. She
conceded a Serbian translator was not present during the signing.
According to defendant, plaintiff told him that he needed to
sign "life insurance paperwork," in the event something should
happen to her, so that the insurance proceeds would "[go] to her
mother," which he "didn't have a problem with." He claims he
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signed the document believing it merely waived any interest in any
life insurance proceeds on plaintiff's life. Defendant stated he
signed this paper in the kitchen of the Battle Ridge Trail home,
and that no witnesses or notary were present, and that plaintiff's
signature – but no notary stamp – was already on the agreement
when she gave it to him to sign. Defendant testified that he saw
the four-page prenuptial agreement for the first time in the office
of his attorney during the divorce proceedings. Defendant further
testified that he and plaintiff never discussed a prenuptial
agreement or plaintiff's assets or liabilities prior to their
marriage.
Akst, an attorney who stated he practices "exclusively in the
area of immigration law," testified via telephone.4 He recalled
representing defendant for "just a couple of months," helping him
obtain a visa concerning his employment with "a foreign magazine."
Akst also testified he did not represent defendant during the
preparation, review, negotiation, or execution of a prenuptial
agreement. He further stated plaintiff never came to his office
to discuss or sign a prenuptial agreement, and he had no
recollection of the parties signing an agreement in his office in
July 2004. Moreover, he testified he never had an employee with
4
Plaintiff's attorney advised the court he had "no objection" to
the court receiving this testimony by telephone.
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the name indicated on the notary stamp reflected on the prenuptial
agreement.
Prenuptial agreements are enforceable assuming full
disclosure and comprehension, and absent unconscionability.
Rogers v. Gordon,
404 N.J. Super. 213, 219 (App. Div. 2008).
Pursuant to
N.J.S.A. 37:2-38, the party seeking to invalidate a
prenuptial agreement must prove by clear and convincing evidence
that "[t]he party executed the agreement involuntarily," or the
agreement is unconscionable.
N.J.S.A. 37:2-38(c) also provides
that an agreement is unconscionable if, before the execution, the
party:
(1) Was not provided full and fair disclosure
of the earnings, property and financial
obligations of the other party;
(2) Did not voluntarily and expressly waive,
in writing, any right to disclosure of the
property or financial obligations of the other
party beyond the disclosure provided;
(3) Did not have, or reasonably could not have
had, an adequate knowledge of the property or
financial obligations of the other party; or
(4) Did not consult with independent legal
counsel and did not voluntarily and expressly
waive, in writing, the opportunity to consult
with independent legal counsel.
Here, the judge voided the prenuptial agreement in a terse
letter opinion. In fact, the opinion only states, "Dear Counsel:
Please excuse this Brief Letter Decision. Time constraints [do
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not] let me do more. It is my opinion that the [p]re-[n]uptial
[a]greement shall be set aside and of no further force and effect."
Without question, the judge's letter opinion failed to
satisfy the mandate of Rule 1:7-4(a), which requires the trial
court, in all actions tried without a jury, to issue "an opinion
or memorandum decision, either written or oral," setting forth its
findings of facts and conclusions of law. "[A] judge's failure
to perform the fact-finding duty 'constitutes a disservice to the
litigants, the attorneys and the appellate court.'" Ricci v.
Ricci,
448 N.J. Super. 546, 574-75 (App. Div. 2017) (quoting Curtis
v. Finneran,
83 N.J. 563, 569-70 (1980)).
Notwithstanding the absence of findings and conclusions
regarding the enforceability of the prenuptial agreement, we find
the record sufficient for us to exercise original jurisdiction and
affirm the decision setting aside the agreement. R. 2:10-5.
"Resort to original jurisdiction is particularly appropriate to
avoid unnecessary further litigation . . . where the record is
adequate to terminate the dispute . . . ." Vas v. Roberts,
418 N.J. Super. 509, 523 (App. Div. 2011) (citing Pressler & Verniero,
Current N.J. Court Rules, cmt. on R. 2:10-5 (2011)); see also
Bailes v. Twp. of E. Brunswick,
380 N.J. Super. 336, 347 (App.
Div. 2005) ("Due to the absence of essential fact-finding in the
trial court's opinion, we have made such findings of fact as are
12 A-1315-15T2
necessary to bring this litigation to a conclusion."). We
recognize, however, that "the exercise of original jurisdiction
should not occur routinely . . . ." Roberts,
418 N.J. Super. at
524 (citation omitted).
The record here firmly convinces us of the prenuptial
agreement's invalidity. The record lacks any convincing evidence
that defendant, before signing the agreement, "consulted with
independent counsel" or that he "voluntarily and expressly
waive[d], in writing, the opportunity to consult with independent
legal counsel."
N.J.S.A. 37:2-38(c)(4). Regarding this issue,
Akst's testimony provided compelling support for defendant's
position and seriously undermined plaintiff's contentions. In
addition, on cross-examination, plaintiff professed no
recollection regarding most of the important facts and
circumstances surrounding the preparation and execution of the
agreement. Our review of the record compels the finding that
defendant did not consult with independent counsel or voluntarily
waive his right to do so before signing the agreement.
In addition, while plaintiff insisted she provided defendant
with the Schedule A attachments before he signed the prenuptial
agreement "[eleven] years ago," she had no explanation why
defendant did not receive the attachments, before trial, in
response to multiple discovery requests. Nor does plaintiff's
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appendix include any purported Schedule A attachments, or any
appraisals that predate the prenuptial agreement. Based upon our
review of the record, we find that defendant did not receive "full
and fair disclosure of the earnings, property and financial
obligations" of plaintiff, as mandated by
N.J.S.A. 37:2-38(c)(1).
See also Ladenheim v. Klein,
330 N.J. Super. 219, 224 (App. Div.
2000) (noting the propriety of exercising original jurisdiction
when the record discloses no support for a party's claim).
Accordingly, we affirm the court's nullification of the prenuptial
agreement, concluding that the agreement is "unconscionable,"
based upon the clear and convincing evidence in the record
regarding the absence of both full disclosure and independent
legal counsel. See
N.J.S.A. 37:2-38(c).
B. Equitable Distribution of Gifts Received During Marriage
Plaintiff next argues the court erred in equitably
distributing three properties plaintiff acquired during the
marriage. She argues the judge erred in concluding the properties
were not gifts, based upon his incorrect finding that plaintiff's
mother "did not give up her ownership or control of the
properties." Alternatively, plaintiff argues that if the
properties are not exempt gifts, they should be exempt as assets
held by plaintiff in a resulting trust for her mother.
14 A-1315-15T2
The three properties at issue are: (1) two lots on Union
Boulevard in Totowa; (2) a house on Dewey Avenue in Totowa; and
(3) two condominium units in Sarasota, Florida. The record
reflects the following facts relating to these properties.
In July 2009, plaintiff's mother purchased two lots on Union
Avenue for $380,000 and $525,000. Plaintiff testified that title
to the two properties was placed into an LLC, which she created
per her mother's instructions, and she was the only member. At
the time of trial, the LLC continued to own the properties.
Plaintiff stated her mother paid the carrying costs
associated with the properties by depositing money into the LLC,
then plaintiff, as the property manager, would pay the bills.
Plaintiff alleges she did not contribute any personal or marital
money to the property's carrying costs or the LLC; rather, she
asserts the property was a gift from her mother, made with the
expectation that plaintiff would "leave" the property to her
children.
On January 31, 2008, plaintiff's mother used her personal
funds to purchase a two-family home on Dewey Avenue for $525,000.
The mortgage was in plaintiff's name, and title was placed into
an LLC plaintiff had created per her mother's instruction; again,
plaintiff was the LLC's only member. Plaintiff testified the
property was a gift to her from her mother.
15 A-1315-15T2
Plaintiff managed the property and claimed the rental income
she received for it covered expenses. She further claimed she
used no personal or marital money to maintain the property;
however, she used the parties' home address as the LLC's business
address. Defendant testified he had no understanding that the
property was intended as a gift only for plaintiff, and said he
maintained the property by cutting the lawn, cleaning, and
responding to tenants' repair requests.
At her mother's instruction, plaintiff sold the property in
2014. Plaintiff testified she did not receive any proceeds from
the sale.
Finally, plaintiff owned two condominium units in Sarasota,
Florida. Around 2008 and 2011, plaintiff's mother used her
personal funds to purchase the two units. Again, at her mother's
instructions, plaintiff placed title to the two units into separate
LLCs, with herself as the sole member. Both units were rented
through a rental agency, but plaintiff received the rental income
and managed the properties. The rental income covered the expenses
for the properties, and plaintiff testified her mother would cover
any shortfall.
Plaintiff argues the units were gifts from her mother, and
defendant had no interest in either unit. Defendant testified
that he and plaintiff went to Florida on vacation, where
16 A-1315-15T2
plaintiff's mother showed them a condominium she stated she wanted
to buy for them. He testified he believed the condominium was for
both him and plaintiff because they were married and he was a part
of the family.
In his opinion, the judge found the Union Boulevard property
worth $490,000, the Dewey Avenue property worth $475,000, and the
Sarasota condominiums worth $450,000, for a combined total of
$1,415,000.5 He further stated:
The "legal status" of these properties
is very, very confusing. . . . It was the
testimony of the plaintiff and her mother that
these properties were gifts from the mother
to the daughter to help ensure the future
financial safety of the plaintiff and the
grandchildren.
. . . .
The transfers of property that took place in
this case could not be gifts as the donor
(plaintiff's mother) did not give up her
ownership or control of the
property. . . . Therefore, these items
cannot be counted as gifts and exempt from
equitable distribution.
A trial court in an action for divorce may "effectuate an
equitable distribution of . . . property, both real and personal,
which was legally and beneficially acquired by [the parties] or
5
On plaintiff's motion for reconsideration, the judge reduced
the value of the Dewey Avenue property to $400,000, based upon the
sale of the property. This change reduced the combined total of
all three properties to $1,340,000.
17 A-1315-15T2
either of them during the marriage . . . ."
N.J.S.A. 2A:34-23(h).
Property acquired "by either party by way of gift, devise, or
intestate succession" is not subject to equitable distribution.
N.J.S.A. 2A:34-23(h).
"Proof of [a] gift requires evidence of unequivocal donative
intent on the donor's part, actual or symbolic delivery of the
gift's subject matter, and the donor's absolute and irrevocable
relinquishment of ownership." Dotsko v. Dotsko,
244 N.J. Super.
668, 674 (App. Div. 1990) (citation omitted). A gift will be
subject to distribution if it was used to finance the marital
lifestyle, or it was placed in an account that regularly received
deposits of income and earnings from the party's employment or
received deposits of other non-exempt monies. Tannen v. Tannen,
416 N.J. Super. 248, 283 (App. Div. 2010). The burden of
establishing an asset is exempt from equitable distribution rests
with the party who seeks to exclude it. Pascale v. Pascale,
140 N.J. 583, 609 (1995).
We reject the trial judge's finding that the properties were
not gifts. The record supports the conclusion that plaintiff's
mother intended for plaintiff alone to be the recipient of the
properties. Plaintiff's mother purchased the properties, and
plaintiff placed title to them into LLCs, with herself as the only
member. As such, plaintiff, and not her mother, had legal
18 A-1315-15T2
ownership and control of the properties, thus evidencing her
mother's relinquishment of ownership. Plaintiff's perceived
"moral" responsibility to obey her mother's wishes is not
dispositive of the issue.
Additionally, we have previously recognized that some
influence over transferred property does not invalidate a gift's
intent. In Brown v. Brown,
348 N.J. Super. 466, 480-82 (App. Div.
2002), a husband held outstanding stock in a family-owned business.
The Family Part found the shares were not a gift because the
husband's father retained control of the business. Id. at 481.
We reversed, holding the father's continued control of the business
was insufficient to negate the intent to make a gift, and therefore
the stocks were not subject to equitable distribution. Ibid.
Moreover, we note the judge rejected defendant's testimony
that he contributed to the properties in terms of physical labor,
and in the case of the Union Boulevard property, by designing a
commercial building for the site; in fact, the judge found
"defendant's contribution to the properties and maintenance of the
properties was relatively nothing." Nonetheless, the judge
awarded defendant fifteen percent of the value of these properties,
finding "defendant is entitled to some portion of equitable
distribution of these very valuable assets." We disagree. As
stated, plaintiff sufficiently established these properties were
19 A-1315-15T2
gifts from her mother. Therefore, because these properties are
not subject to equitable distribution, and the judge found
defendant contributed "relatively nothing" to them, we reverse the
equitable distribution award concerning these three properties.
As a result, the trial court on remand shall reduce defendant's
equitable distribution award by $201,000.
C. Equitable Distribution of Premarital Assets
Plaintiff further contends the court erred in awarding
defendant one-half of the increase in the value of the marital
home, Battle Ridge Trail, and an investment property located on
Francis Street in Totowa. We reject this contention.
Plaintiff first claims the court erred in awarding defendant
one-half of the increase in value of the Battle Ridge Trail
property. As previously mentioned, plaintiff purchased her first
husband's share of that property in 2002. In 2004, after the
parties married, plaintiff's mother paid off the property's
mortgage and line of credit.
In 2008, the parties decided to renovate the Battle Ridge
Trail house; they added an addition to the second floor and a
garage behind the house, more than doubling the house's size.
Plaintiff's mother paid for all of the renovations.
20 A-1315-15T2
Prior to the renovations, defendant started his own
construction company — Aceria Construction, LLC.6 According to
plaintiff, defendant "wanted to oversee the [renovations] so that
his name could be out there that his company is doing it." The
parties agreed defendant would oversee the renovations and they
would "all discuss" the subcontractors for it. Plaintiff further
testified defendant and plaintiff's mother oversaw the renovations
together.
Defendant narrated a video showing the work he claimed to
have supervised or performed during the renovations. He also
prepared a summary of the work he performed on the house and
expenses he incurred. He testified plaintiff did not contribute
towards those expenses or reimburse his construction company.
In 2003, plaintiff's mother purchased plaintiff an investment
property on Francis Street in Totowa. The mortgage on that
property was in plaintiff's name, and the property remained
mortgaged at the time of the parties' divorce trial. Plaintiff
testified she paid the Francis Street mortgage and operating
expenses using only the money the property generated; she claimed
defendant did not contribute to the mortgage payment, and she did
not use marital funds to pay the expenses.
6
Also spelled "Asseria" throughout the record.
21 A-1315-15T2
At some undefined point, plaintiff renovated the Francis
Street property to include installation of a bathroom, new
flooring, and painting. Plaintiff testified a contractor started
the renovations, but defendant completed the work. She further
testified defendant "would offer" to cut the property's lawn when
it was vacant, but otherwise tenants performed that task. Finally,
she denied defendant performed "general maintenance" on the
property.
Defendant testified he was the contractor and supervisor for
the Francis Street renovations. He claimed to have plastered and
painted the home, renovated its basement, laid brick stairs,
replaced siding, renovated the first floor bathroom, and changed
carpets. He further agreed he worked on the property on "a regular
basis," and performed tenants' requested repairs. He testified
he performed these tasks because plaintiff gave him the impression
it was their joint asset for their children.
Regarding Battle Ridge Trail, the court found "the value of
the improvements to the marital home is $175,000," and found
defendant was entitled to fifty percent of that increase.
Regarding the Francis Street property, the court found defendant
"rendered services to this property to bring about [an] increase
in value," and awarded him fifty percent of the $20,000 increase
in value.
22 A-1315-15T2
The burden of establishing that an asset is immune from
equitable distribution rests on the party who asserts that it was
his or her sole property at the time of the marriage. Pascale,
140 N.J. at 609. When immunity is established, however, the party
seeking to overcome immunity has the burden of showing that:
(1) there has been an increase in the value
of the asset during the term of the marriage;
(2) the asset was one which had the capacity
to increase in value as a result of the
parties' effort (an active immune asset); and
(3) the increase in value can be linked in
some fashion to the efforts of the non-owner
spouse.
[Sculler v. Sculler,
348 N.J. Super. 374, 381
(Ch. Div. 2001) (footnote omitted).]
Any increase in value occurring in an "active immune asset"7 during
the marriage is generally eligible for distribution. Id. at n.1
(citation omitted).
We find no error in the judge awarding defendant fifty percent
of the properties' increase in value. The judge appropriately
determined defendant's sweat equity contributed to the properties'
overall improvement. Therefore, because the judge's findings are
7
"Passive immune assets are those whose value increases solely
as a result of market conditions[,] and are not subject to
equitable distribution. Active immune assets involve
contributions and efforts by one or both spouses toward the asset's
growth and development which directly increase its value." Ibid.
23 A-1315-15T2
firmly grounded in the record, we find no abuse of discretion, and
affirm. See Wadlow v. Wadlow,
200 N.J. Super. 372, 377 (App. Div.
1985).
D. Attorneys' Fees
We now consider the trial court's December 3, 2015 order,
which directed plaintiff to pay $59,910 in attorneys' fees to
defendant's counsel and denied plaintiff's request attorneys'
fees. In his accompanying opinion, the judge apologized for the
"long delay" because of "too much work coming in and not enough
time to get it done." Nonetheless, the judge indicated he reviewed
the certification of defendant's counsel stating defendant had
paid $52,370 towards total fees charged of $160,898; mainly, the
fees involved trial preparation and trial.
The judge analyzed the nine factors set forth in Rule 5:3-
5(c), and found that although the parties were "modest wage
earners" and "in relatively the same position" in terms of income,
plaintiff was in a "better financial position
[than] . . . defendant." The judge acknowledged "plaintiff's
financial condition is totally dependent upon the largess of her
mother," but also noted that plaintiff's interest in several LLCs
was worth "in excess of one million dollars." Further, the judge
found plaintiff had a "significant amount" of assets, whereas
24 A-1315-15T2
defendant would leave the marriage with approximately $300,000 and
his construction business, which was of limited value.
Importantly, the judge recognized defendant's attorneys' fees
far exceeded that of plaintiffs; however, he ultimately determined
it was "fair for . . . plaintiff to pay some of . . . defendant's
fees," but "[n]ot all of the fees as . . . defendant request[ed]."
Accordingly, the judge awarded plaintiff to pay defendant's
counsel $59,910 — slightly more than one half of defendant's
balance.
The award of attorneys' fees and costs in matrimonial cases
is a matter committed to the discretion of the trial court;
reversal is appropriate only when the trial court has abused its
discretion, exceeded its authority, or made a determination that
is not supported by the record. See Williams v. Williams,
59 N.J.
229, 233 (1971). In exercising that discretion, however, the
court must comply with
N.J.S.A. 2A:34-23, which requires
consideration of "the factors set forth in the court rule on
counsel fees, the financial circumstances of the parties, and the
good or bad faith of either party." Mani v. Mani,
183 N.J. 70,
94 (2005) (quoting
N.J.S.A. 2A:34-23).
Here, we find no abuse of discretion in the judge's award of
attorneys' fees in favor of defendant. The judge considered the
factors set forth under Rule 5:3-5, and provided adequate reasons
25 A-1315-15T2
for his decision. Given plaintiff's significant assets, he found
she was more capable of payment, and further noted plaintiff "was
the cause of some of . . . defendant's work through her non-
production of information." As a result, he found it "fair
for . . . plaintiff to pay some of . . . defendant's" attorneys'
fees.
Moreover, although attorneys' fees are typically awarded
directly to the party, it is "a common and accepted practice" for
courts to require payment of an attorneys' fee award directly to
the attorney. Leavengood v. Leavengood,
339 N.J. Super. 87, 96
(App. Div. 2001); see also Williams,
59 N.J. at 234-35 (citation
omitted) (holding although "counsel fees and costs are awarded to
the litigant, they properly 'belong' to counsel . . . .").
Accordingly, we affirm the judge's attorneys' fees award and his
requirement that plaintiff pay defendant's counsel directly.
E. Child Support
Plaintiff next challenges the court's child support award.
Without citing any case law, she argues the award is inadequate
to meet the children's needs and assumes her mother's financial
generosity will continue.
In his opinion, the judge noted:
There are no exceptional needs of the
children. Fortunately, the three children are
physically and mentally sound. The standard
26 A-1315-15T2
of living and economic circumstances of the
parties are explained above . . . . The
children are under ten and of good health.
The children themselves have no debts or
liability nor income. All of the factors
applied above. A Child Support Guideline is
attached hereto indicating that child support
is $153 per week.8 The court has based this
on the known and identified incomes of the
parties. The defendant at $65,500 . . . and
the plaintiff $36,439 earned last
year . . . . While this court certainly knows
that there are more monies that were used for
the children's needs, the court has absolutely
no way to calculate what that was. The court
does believe that the generosity of the
children's grandmother will continue toward
them.
The judge computed the parties' income by considering their
income tax information. He found that during most of the marriage,
plaintiff earned income in the $30,000 range as a real estate
broker and property manager for her mother. He found defendant
was a painter when the parties met and then opened a construction
business that was "never really successful . . . ." Defendant's
other enterprises during the marriage, including authoring a book
about soccer and writing songs, were also unsuccessful. However,
in recent years, defendant earned $40 per hour, and stated he
grossed $1200 per week for an annual income of $62,400. The judge
8
After defendant moved for reconsideration, the court reduced the
child support award to $117, finding it mistakenly omitted $1450
in rental income for plaintiff.
27 A-1315-15T2
noted that, based on a forty-hour work week, defendant's annual
income would be $83,200. Finally, after considering the parties'
Case Information Statements, testimony, and tax returns, the judge
found they "led a lifestyle consistent with an income of about
$70,000 to $75,000 per year."
When determining child support awards, the trial court has
"substantial discretion." Jacoby v. Jacoby,
427 N.J. Super. 109,
116 (App. Div. 2012); see also Pascale, F
140 N.J. at 594. A child
support award that is consistent with the applicable law "will not
be disturbed unless it is manifestly unreasonable, arbitrary, or
clearly contrary to reason or to other evidence, or the result of
whim or caprice." Gotlib v. Gotlib,
399 N.J. Super. 295, 309
(App. Div. 2008) (quoting Foust v. Glaser,
340 N.J. Super. 312,
315-16 (App. Div. 2001)). "[A]n award based on the guidelines is
assumed to be the correct amount of child support unless a party
proves to the court that circumstances exist [that] make a
guideline-based award inappropriate in a specific case." Musico
v. Musico,
426 N.J. Super. 276-285 (Ch. Div. 2012) (citing Child
Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,
Appendix IX-A to R. 5:6A, www.gannlaw.com (2017)).
Here, the judge adequately considered the factors set forth
under the child support guidelines,
N.J.S.A. 2A:34-23(a), which
support his findings. Moreover, plaintiff's position lacks legal
28 A-1315-15T2
and evidentiary support, and fails to establish that the needs of
the children are not being met under the current child support
award. Accordingly, we affirm the judge's child support award.
F. Parenting Plan
Defendant appeals the judge's parenting plan, arguing the
judge failed to provide for equal shared physical custody of the
children, as endorsed by Dr. Paul Dasher.9 Defendant requested to
have physical custody of the children on every Wednesday and
Thursday, and alternate weekends.
The judge's parenting plan provided for defendant to have the
children one weekday per week and alternate weekends. He found
this schedule "will give each parent significant time with the
children." In arriving at the parenting schedule, the judge found
Dr. Paul Dasher's report to be "significant" because it was the
only independent source of information as to the children; however,
he noted that the report was "dated material" in that quite some
time had passed since the doctor created the report.
The judge also expressed concern that "defendant seemed quite
bitter at plaintiff" and "never failed to try and tell this court
something negative about [her]." In contrast, plaintiff "at no
time impu[g]ned [defendant's] love for his children or his capacity
9
The record lacks Dr. Paul Dasher's report, which was stipulated
into evidence during the trial.
29 A-1315-15T2
to function as a parent." The judge further noted "the court
cannot really assess the parent's cooperation, communication,
agreement, willingness to accept or provide for custody and
interaction, as the parties still reside together on a daily basis
under the same roof."
"The touchstone for all custody determinations has always
been 'the best interest[s] of the child.'" Faucett v. Vasquez,
411 N.J. Super. 108, 118 (App. Div. 2009) (alteration in original)
(quoting Kinsella v. Kinsella,
150 N.J. 276, 317 (1997)). "Custody
issues are resolved using a best interests analysis that gives
weight to the factors set forth in N.J.S.A. 9:2-4(c)." Ibid.
(quoting Hand v. Hand,
391 N.J. Super. 102, 105 (App. Div. 2007)).
"[T]he decision concerning the type of custody arrangement [is
left] to the sound discretion of the trial court. . . ." Nufrio
v. Nufrio,
341 N.J. Super. 548, 555 (App. Div. 2001) (alteration
in original) (citation omitted). Therefore, on appeal, "the
opinion of the trial judge in child custody matters is given great
weight . . . ." Terry v. Terry,
270 N.J. Super. 105, 118 (App.
Div. 1994).
We affirm the judge's parenting plan. He thoroughly explained
his factual findings, which were supported by "adequate,
substantial and credible evidence" in the record. Rova,
65 N.J.
at 484. Although the plan is not exactly equal, the arrangement
30 A-1315-15T2
allows each parent to have significant time with the children, and
is a practical plan for school-aged children.
To the extent we have not addressed any argument raised by
the parties, we conclude such arguments lack sufficient merit to
warrant comment in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, and reversed and remanded in part. We
remand for entry of an amended JOD to reflect our partial reversal
of the trial court's equitable distribution award. See supra
Section III.B. We do not retain jurisdiction.
31 A-1315-15T2
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