KARENM. MILCARSKY v. MARK V. MILCARSKY

 


                        NOT FOR PUBLICATION WITHOUT THE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-2998-16T2

KAREN M. MILCARSKY,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

MARK V. MILCARSKY,

        Defendant-Appellant/
        Cross-Respondent.


              Submitted July 9, 2018 – Decided July 20, 2018

              Before Judges Carroll and Rose.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Atlantic
              County, Docket No. FM-01-0344-16.

              Young, Marr & Associates, LLC, attorneys for
              appellant/cross-respondent (Gail N. Marr, on
              the brief).

              Richard    I.   Goldstein,            attorney       for
              respondent/cross-appellant.

PER CURIAM

        Defendant    Mark    V.   Milcarsky    appeals    a   February    3,   2017

judgment of divorce after a trial in the Family Part, specifically
challenging his alimony obligation and the equitable distribution

of his pension.         Plaintiff Karen M. Milcarsky cross-appeals,

arguing that the alimony award is insufficient to maintain the

marital    lifestyle.     Having   carefully         considered   the    parties'

contentions in light of the applicable law, we affirm substantially

for the reasons set forth in the trial judge's thorough oral and

written opinions.

      We discern the following facts from the record.              The parties

were married in October 1995, and separated in 2004; however,

plaintiff did not file her complaint for divorce until November

2015.     No children were born of the marriage.

      On June 24, 2016, the trial court ordered defendant to pay

plaintiff $250 per week in pendente lite support.                       The court

thereafter conducted a trial on October 25, 2016, and November 16,

2016, hearing testimony from the parties about their marital

history, their work and earnings history, the assets they acquired,

and   their   standard    of   living       during    the   marriage.       After

considering the testimony of the parties and making credibility

findings, Judge Nancy L. Ridgway rendered an oral decision on

January 11, 2017, supplemented by a comprehensive written opinion

on February 10, 2017.

      Notably, Judge Ridgway found as follows. During the marriage,

defendant was the primary wage earner and plaintiff primarily was

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a homemaker who cared for her children from a prior marriage.   The

parties purchased a marital home and lived together as a family

with plaintiff's children.   In 2002, plaintiff was diagnosed with

serious and chronic medical conditions.

     After the parties separated in June 2004, they agreed to sell

the marital home and divide its contents and the sale proceeds.

Following the separation, defendant paid the balance of the loan

on plaintiff's 2003 Jeep and the rent and security deposit on her

new apartment.    Also, for a period of time, defendant covered

plaintiff under his health insurance and contributed $200 per

month for her prescription costs.

     The trial focused on two issues: the equitable distribution

of defendant's 401(k) account and plaintiff's claim for alimony.

On the issue of equitable distribution, Judge Ridgway rejected

defendant's contention that the marriage was factually and legally

"dead" when the parties separated in June 2004, and that all

property acquired thereafter should not be subject to equitable

distribution.    Instead, the judge accepted plaintiff's argument

under Brandenburg v. Brandenburg, 
83 N.J. 198 (1980), that the

date of the filing of the complaint for divorce is the controlling

date with regard to the parties' respective rights concerning

equitable distribution.



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     The judge found "very credible . . . [d]efendant's desire and

intent to do right by providing for [p]laintiff and her family."

Nonetheless,    the   judge    rejected    defendant's    assertion    that    a

notebook   containing    his    handwritten     entries    and   "scribbles"

constituted a qualifying separation agreement that would fix the

termination date of the parties' marriage for purposes of equitable

distribution.     Rather,      the   judge   found   "[p]laintiff     credibly

testified that she did not recall the notebook being involved in,

or being a memorialization of, an agreement to separate.               To the

contrary, in her testimony [p]laintiff credibly maintained that

she was plainly adverse to signing the agreement."           Similarly, the

judge determined that the notebook, testimony, and other evidence

were "[in]sufficient to establish that a clear oral agreement

accompanied the parties' separation here."

     Relying on Brandenburg, 
83 N.J. at 209, Judge Ridgway noted

that "physical separation and the payment of support does not

equate to a clear termination of a marital relationship."                   The

judge elaborated:

           Unless the parties' agreement divided all
           significant    assets,   or    alternatively
           contained a knowing and voluntary waiver of
           the right to the division of a significant
           asset, it will be insufficient to terminate
           the marital relationship. Because the 401(k)
           remains at issue here, a significant marital
           asset has not been divided in equitable
           distribution.   Thus, the separation of the

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            parties in this case cannot mark the end of
            [marital] property acquisition.

     The judge also found enforcement of the purported agreement

for defendant to provide plaintiff $200 per month "would be

unconscionable."    The judge found such "amount of support is too

low to be considered fair or equitable.       That is, $200 per month

was an insufficient amount of support to meet [p]laintiff's need[s]

at the time of separation, and . . . to cover her expenses at the

current time."

     These findings did not, however, end the court's analysis

regarding    the   equitable   distribution   of   defendant's    401(k)

account.    Judge Ridgway further found

            quite significant the fact that [p]laintiff
            voluntarily failed to make any marital
            contribution,    economic,    noneconomic   or
            otherwise, to the accumulation of the value
            of [d]efendant's 401(k) after the separation.
            Here, following their separation in June 2004,
            . . . [d]efendant enjoyed no benefit from
            . . . [p]laintiff contributing to the marital
            enterprise as a homemaker as he previously
            would have when the parties lived together.
            While her contributions to the marriage during
            the parties' time together is valid, the
            subsequent     absence     of    [p]laintiff's
            participation in the marital enterprise
            justifies a significant disparity in the
            respective value of the 401(k) distributed to
            each spouse in this case. On this record, a
            finding that . . . [p]laintiff is entitled to
            an award for half of the full present value
            of [d]efendant's 401(k) would be patently
            inequitable.


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               Consequently, the court finds that, of
          the twenty-year and one-month marriage (241
          months), [p]laintiff made a significant
          marital contribution for eight years and eight
          months (104 months).        In other words,
          [p]laintiff actively contributed during only
          43% of the acquisition of the marital portion
          of . . . [d]efendant's 401 (k).

               . . . .

               Accordingly, the court finds [p]laintiff
          is appropriately entitled to half of the
          relevant 43% of the asset.          Therefore,
          [p]laintiff is entitled to 21.5% of the
          marital portion of . . . [d]efendant's 401(k)
          account, measured from the date of the
          marriage to the date of the complaint and
          adjusted for the increase or decrease in value
          during that time.

     Regarding alimony, Judge Ridgway found credible plaintiff's

undisputed testimony that "she is disabled and unable to earn

income aside from [her] approximate net disability income of $600

per month," which renders plaintiff "largely unable to accommodate

her need of $2600 per month."     The judge found, "[o]n the other

hand, [d]efendant earns a substantial income . . . in excess of

$155,000 in the past tax year."       These earnings allow defendant

to meet his expenses of $6325 per month, exclusive of "the unknown

second income brought into [d]efendant's household by his current

significant other."   The judge determined the parties' twenty-year

marriage qualified plaintiff to receive open durational alimony.

After carefully considering the factors set forth in N.J.S.A.


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2A:34-23(b), the judge ordered defendant to pay plaintiff $250 per

week as open durational alimony, with such amount to increase to

$500 per week in the event plaintiff obtained her own apartment.

     The scope of appellate review of trials in the Family Part is

particularly 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 (citation omitted).          "Because a trial

court 'hears the case, sees and observes the witnesses, [and]

hears them testify,' it has a better perspective than a reviewing

court in evaluating the veracity of witnesses."                   Id. at 412

(citations     omitted)     (alteration   in   original).         We      accord

particular deference to the judge's factfinding because of "the

family   courts'     special   jurisdiction    and    expertise     in    family

matters."     Id. at 413.

      However, when "the focus of the dispute is . . . alleged

error in the trial judge's evaluation of the underlying facts and

the implications to be drawn therefrom, the traditional scope of

review is expanded."      N.J. Div. of Youth & Family Servs. v. M.M.,


189 N.J. 261, 279 (2007) (citations omitted).              "Still, even in

those circumstances we will accord deference unless the trial

court's findings 'went so wide of the mark that a mistake must

have been made.'"      Ibid. (citations omitted).

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     "A Family Part judge has broad discretion in setting an

alimony   award   and    in   allocating   assets    subject    to   equitable

distribution."    Clark v. Clark, 
429 N.J. Super. 61, 71 (App. Div.

2012) (citation omitted). "Of course, [as to alimony] the exercise

of this discretion is not limitless[,]" and is "frame[d]" by the

statutory factors set forth in 
N.J.S.A. 2A:34-23(b).              Steneken v.

Steneken, 
367 N.J. Super. 427, 434 (App. Div. 2004).                 Regarding

equitable   distribution,       the   statutory     factors    enumerated     in


N.J.S.A. 2A:34-23.1, "used in concert with the facts of each case,"

inform the otherwise "broad discretion" accorded the trial judge.

Id. at 434-35.

     In his appeal, defendant essentially contends the trial court

erred in concluding that the duration of the marriage for equitable

distribution and alimony purposes was twenty years and one month,

that there was no agreement reached by the parties at the time of

separation that addressed all their assets and alimony, and by

awarding plaintiff open durational alimony and a share of his

401(k) account.         For her part, plaintiff maintains the court

properly determined the date of the filing of the complaint was

the proper date to use in establishing alimony and equitable

distribution, and correctly awarded her open durational alimony.

However, in her cross-appeal, plaintiff contends the amount of



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alimony was insufficient to allow her to maintain the marital

lifestyle.

       We conclude that the parties' respective claims of error

regarding the equitable distribution award and the amount and

duration of alimony, in light of the record, reveal nothing "so

wide of the mark" that a clear mistake was made that warrants our

intervention.      We affirm substantially for the reasons expressed

in Judge Ridgway's thoughtful oral and written opinions.                  We add

only the following limited comments.

       As Judge Ridgway aptly noted, the Supreme Court held in

Brandenburg that absent evidence of a written agreement, or a

complete division of the marital assets pursuant to an oral

agreement,   the      trial   court   should   use    the   date   the    divorce

complaint was filed as the date the marriage ended.                 
83 N.J. at
 209.    Here, neither of those exceptions is present.               Therefore,

the applicable date for purposes of equitable distribution was

November 4, 2015, the date plaintiff filed for divorce, not June

24, 2004, the date the parties separated.

       Applying the statutory factors of 
N.J.S.A. 2A:34-23(b) to

the    record,   we    conclude   plaintiff     was   entitled     to    alimony.

Defendant's income from his employment was significantly higher

than plaintiff's disability income.            As noted, the parties were



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married in October 1995, and the complaint for divorce was not

filed until November 2015.      Therefore, the parties were married

for over twenty years, which qualified plaintiff for an award of

open durational alimony.   
N.J.S.A. 2A:34-23(b).      We find no abuse

of discretion in the manner the trial court applied the statutory

factors and reached its conclusion.

     Finally, we find no merit in plaintiff's cross-appeal with

regard to the amount of alimony awarded.         Noting the parties'

lengthy   separation,   Judge   Ridgway   correctly   found   defendant

"should not be obligated to maintain the marital standing of living

because it has not been the status quo for either party for some

time."

     Affirmed.




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