CHARLES HERBRUCK v. MARIA HERBRUCK

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Superior Court of New Jersey, Appellate Division.

CHARLES E. HERBRUCK, Plaintiff–Respondent/ Cross–Appellant, v. MARIA T. HERBRUCK, Defendant—Appellant/ Cross–Respondent.

DOCKET NO. A–3065–11T3

Decided: April 25, 2014

Before Judges Yannotti, St. John and Leone. Ralph A. Ferro argued the cause for appellant/cross-respondent (Ferro & Ferro, attorneys;  Mr. Ferro, of counsel and on the brief). Richard T. Garofalo argued the cause for respondent/cross-appellant (Garrity, Graham, Murphy, Garofalo & Flinn, attorneys;  Mr. Garofalo, of counsel;  Jane Garrity Glass, on the brief).

The Family Part granted plaintiff Charles Herbruck a judgment of divorce (JOD) after a forty-two month marriage to defendant Maria Herbruck.   Defendant appeals the trial court's denial of permanent alimony.   Plaintiff cross-appeals the award of a BMW to defendant.   Both appeal the denial of counsel fees.   We affirm on the appeal and the cross-appeal.

I.

Plaintiff was born in September 1928.   Defendant was born in November 1951.   Plaintiff lived for many years with his mother in a large house.   He met defendant when she provided health care services to his mother prior to her death in January 1995.

Thereafter, defendant asked plaintiff to take her to the hospital.   According to defendant, her doctor advised her to live with someone.   In December 1995, plaintiff allowed defendant to move into his house, where defendant remained for over ten years.   Plaintiff paid their expenses, but their finances remained separate.

The parties did not hold themselves out as husband and wife.   They slept in separate bedrooms and did not have sexual relations.   They occasionally went out to dinner or the theater together.

Defendant took on almost no domestic tasks.   She cooked dinner on some occasions, but plaintiff cooked for himself most of the time and did the grocery shopping.   Domestic chores were done by a housekeeper paid by plaintiff.   Defendant testified that she cared for plaintiff for three months after he had ankle surgery in 2000 or 2001.

Defendant occupied her time largely outside the home, playing bridge frequently and competitively, socializing with her friends, and taking day trips.   She also completed a B.A. degree, became certified as a yoga instructor, and obtained a degree in Reiki natural healing.   She went on trips abroad without plaintiff, who paid for the trips.

In 2005, plaintiff was hospitalized, and could not be discharged to a rehabilitation facility without filling out financial information forms.   He asked defendant's help.   She agreed, and as a result learned for the first time that plaintiff had a net worth of more than $3.5 million, which generated an annual income of about $200,000.   Thereafter, she asked and then insisted that he marry her.

They were married on February 9, 2006.   They consummated the marriage on one occasion, but otherwise continued to sleep separately.   As before, defendant performed few if any domestic duties, devoted her time to her own pursuits, and took trips abroad without plaintiff, who continued to pay their expenses.

After forty-two months, the marriage ended when defendant assaulted and injured plaintiff.   He filed a domestic violence complaint, and obtained a final restraining order barring her from the home on August 26, 2009.   On August 27, 2009, he filed for divorce.   On March 24, 2010, the family court awarded her pendente lite spousal support of $1,000 per month, and granted her use of the 2007 BMW automobile pending further order of court.

Another family judge conducted an eight-day divorce trial.   On December 5, 2011, the trial court entered the JOD accompanied by a written opinion.   The court granted plaintiff a divorce based on extreme cruelty.  N.J.S.A. 2A:34–2(c).  The court awarded defendant rehabilitative alimony of $2,950 per month for forty-two months, for which plaintiff was required to post $108,780 in escrow.   The court also awarded her the BMW, but denied any other equitable distribution.   On January 10, 2012, the court denied both parties' requests for counsel fees.   On February 3, 2012, the court denied defendant's motion to reconsider the JOD.1

II.

We must hew to our limited standard of review:

[F]indings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence.   Deference is especially appropriate “when the evidence is largely testimonial and involves questions of credibility.”   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.”   Therefore, an appellate court should not disturb the “factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.”

[Cesare v. Cesare, 154 N.J. 394, 411–12 (1998) (citations omitted).]

Moreover, “[w]e accord particular deference to the judge's factfinding because of ‘the family courts' special jurisdiction and expertise in family matters.’ ”  Clark v. Clark, 429 N.J.Super. 61, 70 (App.Div.2012) (quoting Cesare, supra, 154 N.J. at 413).   We may reverse only if there is “a denial of justice because the family court's conclusions are clearly mistaken or wide of the mark.”  Parish v. Parish, 412 N.J.Super. 39, 48 (App.Div.2010) (quotation and deletion marks omitted).

III.

Defendant primarily contends that the court should have awarded permanent alimony.   Under N.J.S.A. 2A:34–23, “the court may make such order as to the alimony or maintenance of the parties ․ as the circumstances of the parties and the nature of the case shall render fit, reasonable and just.”   Thus, “the Legislature gave courts substantial discretion in determining whether to grant alimony and in setting the amount and form in which to grant it.”  Jacobitti v. Jacobitti, 135 N.J. 571, 575 (1994).   Accordingly, we may not vacate a trial court's alimony determination “unless the court clearly abused its discretion, failed to consider all of the controlling legal principles, made mistaken findings, or reached a conclusion that could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.”  J.E.V. v. K.V., 426 N.J.Super. 475, 485 (App.Div.2012).

“In any case in which there is a request for an award of permanent alimony, the court shall consider and make specific findings on the evidence about the [thirteen] factors” set forth in N.J.S.A. 2A:34–23(b).  N.J.S.A. 2A:34–23(c).2  “If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor,” and “then consider whether alimony is appropriate for any or all of the following:  (1) limited duration;  (2) rehabilitative;  (3) reimbursement.”  Ibid.

In its written opinion, the trial court considered and made specific findings regarding each of the N.J.S.A. 2A:34–23(b) factors.   The court's findings can be summarized as follows.   The marriage was of short duration.   The prior period when the parties resided together was platonic, with the parties living separate lives under the same roof.   Defendant made no financial contributions and almost no non-financial contributions before and during the marriage, while plaintiff paid the household expenses.

The court also found that, although the long-retired plaintiff had accumulated substantial wealth during his lifetime, the parties lived a middle-class lifestyle.   Defendant nevertheless took overseas trips without plaintiff, diverted nearly $28,000 meant for household expenses to her own account, and accumulated $224,000.   Although plaintiff has the ability to pay alimony, defendant exaggerated her need and expenses to justify her demand for $6,000 per month permanent alimony.

The court further found that, unlike plaintiff, who was wheelchair-bound and eighty-three-years old at the time of trial, the fifty-nine-year-old defendant was in good health and was mentally and physically able to work.   She could resume her prior work as an apartment complex manager, real estate sales person, home health aide, teacher's assistant, accounting clerk or other clerical positions, or seek a new position using her skills and her newly-acquired bachelor's degree.   She had the ability to earn between $24,000 and $32,000 annually.

Based on these findings, and on plaintiff's gift to defendant of $100,000 in 2007, the trial court concluded that permanent alimony was inappropriate.   The court instead ruled that defendant should receive forty-two months of rehabilitative alimony, which would allow her time to gain work experience and increase her earning ability.   The court further reasoned that such rehabilitative alimony, combined with defendant's investments, her Social Security Disability (SSD) income of approximately $650 per month, and her anticipated work income, would allow her to maintain a lifestyle reasonably comparable to what she enjoyed while living with plaintiff during the marriage.   See Crews v. Crews, 164 N.J. 11, 16 (2000).

A.

Defendant first criticizes the court's consideration of “[t]he duration of the marriage.”  N.J.S.A. 2A:34–23(b)(2).

“The ‘defining distinction’ between permanent and limited duration alimony is the length of the marriage.”  J.E.V., supra, 426 N.J.Super. at 489 (quoting Cox v. Cox, 335 N.J.Super. 465, 483 (App.Div.2000)).   Similarly, “[i]n contrast to rehabilitative alimony, permanent alimony is generally awarded in a marriage of long duration.”  Gonzalez–Posse v. Ricciardulli, 410 N.J.Super. 340, 353 (App.Div.2009).   Permanent alimony “is awarded after a lengthy marriage ․ in recognition of prolonged economic dependence and sustained contribution to a marital enterprise.”  Gordon v. Rozenwald, 380 N.J.Super. 55, 66 (App.Div.2005).

“There is no bright line that divides the duration of a marriage that warrants an award of permanent alimony from the duration of a marriage that is too brief for an award of permanent alimony.”  Id. at 75 n.4;  See Lynn v. Lynn, 91 N.J. 510, 518 (1982).   We have held that permanent alimony is appropriate for long marriages.   E.g., Cox, supra, 335 N.J.Super. at 469–70, 484 n.4 (ruling that permanent alimony should have been awarded after a twenty-two-year marriage);  Gnall v. Gnall, 432 N.J.Super. 129, 153 (App.Div.2013) (declaring that “a fifteen-year marriage is not short-term, a conclusion which precludes consideration of an award of limited duration alimony”), certif. granted, 217 N.J. 52 (2014).

We have found that the appropriateness of permanent alimony for “intermediate length” marriages depends on the circumstances.   E.g., Robertson v. Robertson, 381 N.J.Super. 199, 202, 207–08 (App.Div.2005) (upholding permanent alimony for a twelve-year marriage);  Cerminara v. Cerminara, 286 N.J.Super. 448, 461–62 (App.Div.) (same), certif. denied, 144 N.J. 376 (1996);  Hughes v. Hughes, 311 N.J.Super. 15, 31–33 (App.Div.1998) (finding a ten-year marriage was not “short-term,” requiring consideration of permanent alimony);  J.E.V., supra, 426 N.J.Super. at 489–91 (upholding the denial of permanent alimony for a nine-and-one-half year marriage despite economic dependence and mental health issues).

We have cast doubt on permanent alimony for shorter marriages.   See Carter v. Carter, 318 N.J.Super. 34, 48 (App.Div.1999) (“It is not clear [in a marriage of eight years and seven months] that an award of permanent alimony would have been considered appropriate ab initio.”);  Heinl v. Heinl, 287 N.J.Super. 337, 346 (App.Div.1996) (remanding for explanation “why a relatively short marital life [of seven years and eight months] required an award of permanent alimony rather than an award of rehabilitative alimony”).

Here, the parties were married for three years and six months.   Our published opinions have not required permanent alimony for a marriage lasting only 3.5 years.   To the contrary, we have indicated that “permanent alimony was properly withheld” by a family court “where the marriage was of three and a half year's duration.”  Hughes, supra, 311 N.J.Super. at 32 (citing D'Arc v. D'Arc, 164 N.J.Super. 226, 238 (Ch. Div.1978), aff'd in part o.b., 175 N.J.Super.   598 (App.Div.), certif. denied, 85 N.J. 487 (1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2049, 68 L. Ed.2d 350 (1981)).   Here, the facts found by the trial court support its decision not to award permanent alimony.3

This case bears no resemblance to Lynn. There, the Supreme Court upheld an award of alimony for “a relatively short marriage” of six years where the wife chose to forego a promising career to support the husband as he attended medical school and became a practicing physician, while she became disabled.   Lynn, supra, 91 N.J. at 512–13, 518.   The Court could “hardly envision” a marriage where the parties' financial situations had diverged so significantly during the marriage.  Id. at 516.

Here, the parties' financial situations did not diverge during the marriage, but remained approximately the same as when they married.   Indeed, defendant's financial situation improved due to the transfer of over $100,000 from plaintiff.   Thus, this was not a situation “[w]here the circumstances of the parties diverge greatly at the end of a relatively short marriage, [when] the more fortunate spouse may fairly be called upon to accept responsibility for the other's misfortune.”  Id. at 518.

Defendant argues that the ten years and two months the parties resided together before the marriage should be considered.   In fact, the trial court stated “that, under the totality of the circumstances, some consideration must be given to the [pre-marital period] given a requirement to determine life style.”

Defendant nonetheless argues that the court should have viewed the parties' pre-marital period together with their marital period as one “fifteen-year period of financial dependency” for purposes of alimony, and should have followed the “mandate” that a fifteen-year relationship requires permanent alimony.   Even assuming such a mandate exists for a fifteen-year marriage, the trial court was not required to grant permanent alimony for a 3.5–year marriage after a 10.17–year platonic co-residence.

Defendant incorrectly argues that the facts in this case are substantially similar to the facts in McGee v. McGee, 277 N.J.Super.   1 (App.Div.1994).   There, before the parties were married, Dr. McGee bought Ms. McGee's home in his own name from the foreclosing bank, moved into the home, and stripped the equity from it.  Id. at 3–4.   They lived together and held themselves out as husband and wife during the eight years prior to their two-year marriage, and “engaged in a traditional marital partnership long before the formalities of marriage took place.”  Id. at 4–5.   During the pre-marital period, Ms. McGee made “many non-financial contributions to the relationship,” performing all domestic duties and giving up her job to labor in the home and oversee improvements to the house, allowing Dr. McGee to double his income.  Id. at 4–5, 14.

Here, unlike McGee, it was defendant who took economic advantage of plaintiff, diverting money for household expenses into her personal account.   Moreover, plaintiff and defendant did not hold themselves out as husband and wife or engage in a traditional marital partnership during their pre-marital co-residence.   Defendant made no significant non-financial contributions to the premarital or marital relationship.   She did not take on any significant domestic duties or labor in or on the home.   She did not contribute to the enhancement in value of any of the pre-marital assets of the elderly and long-retired plaintiff.   Thus, this case lacks “the most commonly expressed rationale for permanent alimony,” namely compensation for a spouse's homemaking and child-rearing efforts, which reduce that spouse's opportunity for employment and increase the other spouse's earning capacity.  Cox, supra, 335 N.J.Super. at 482–83.

We stated in McGee:  “While it is true that this was not a lengthy marriage, ‘[t]he extent of actual economic dependency, not one's status as a wife [or husband] must determine the duration of support as well as its amount.’ ”  McGee, supra, 277 N.J.Super. at 14 (quoting Lynn, supra, 91 N.J. at 517).4  However, we did not decide, as defendant suggests, that a lengthy period of premarital cohabitation required permanent alimony.   Rather, we simply remanded “for a full consideration of the issues of rehabilitative and permanent alimony upon application of the proper standard” because it was unclear “whether the need for permanent alimony was fully explored” because “the judge did not address the long period of cohabitation.”  Id. at 14–15.

Here, the trial court fully explored whether permanent alimony was needed, addressed the long period of pre-marital co-residence, applied the proper standard, and decided rehabilitative alimony was appropriate.   Thus, this case does not present “[t]he absence of adequate findings [which in McGee ] necessitate[d] a reversal to allow the trial judge to reconsider the alimony decision.”  Heinl, supra, 287 N.J.Super. at 347–48.

Defendant also argues that plaintiff promised he would take care of her financially when she came to resided with him.   Even had the trial court credited that testimony, alimony “should be based on the factors enumerated in N.J.S.A. 2A:34–23b,” Steneken v. Steneken, 183 N.J. 290, 302 (2005), not on premarital promises.

Indeed, such oral promises are now inadequate even for palimony.   The Legislature has amended the Statute of Frauds to provide that no action may be brought upon “[a] promise by one party to a non-marital personal relationship to provide support or other consideration for the other party” unless the promise is in writing and signed, with the independent advice of counsel.   N.J.S.A. 25:1–5(h).  The amendment precludes claims for support based solely on periods of unmarried cohabitation, economic dependence, or oral premarital promises of support, where the pleading seeking support is filed after the amendment's effective date of January 18, 2010.   See Maeker v. Ross, 430 N.J.Super. 79, 82, 89 (App.Div.), certif. granted, 215 N.J. 485 (2013);  Botis v. Estate of Kudrick, 421 N.J.Super. 107, 111, 117–18 (App.Div.2011).   Here, defendant did not seek palimony in her answer and counterclaim filed on April 29, 2010.5

B.

Second, defendant contests the trial court's findings about “[t]he age, physical and emotional health of the parties,” N.J.S.A. 2A:34–23(b)(3), specifically, her health.   She points out that a 1988 lobectomy removed 20% of her brain.   However, Dr. Eric L. Fremed, plaintiff's expert neurologist, testified that the surgery was successful in ending her seizures, and that she had no physical impairments resulting from the surgery.   Dr. Fremed also found that defendant blatantly attempted to fake and embellish symptoms, and that her “numerous subjective complaints [ ] were clearly disproportionate to the lack of objective and focal neurological deficits on examination.” 6

Dr. Fremed's report stated that, “[p]ending review of the planned neuropsychological examination, it is my conclusion at this juncture, that [defendant] is not left with any objective focal neurological deficits on examination that would preclude her from working.”   Defendant stresses that the planned neuropsychological examination never occurred.   Dr. Fremed testified, however, that the absence of such an examination did not change his medical opinion that she was capable of working.   The trial court credited Dr. Fremed's unrebutted expert testimony.   We defer to that well-supported finding.

Defendant points out that in his February 2011 expert report, her psychiatrist Dr. David N. Rosenfeld diagnosed her with “Schizoaffective Disorder, Depressed type.”   He opined she could not be treated because she would not take medication, and she was thus incapable of gainful employment now and probably permanently.   Dr. Rosenfeld testified that these conditions dated back to his first treatment of defendant in 2000.

However, Dr. Rosenfeld's only prior diagnosis, in 2000, had merely been “anxiety disorder, not otherwise specified.”   From 2000 to 2008, he had not diagnosed defendant with any condition, and she stopped seeing him in 2008.   Upon being retained as an expert witness in 2011, Dr. Rosenfeld reached the more serious diagnosis after one interview, without performing any formal testing, and without determining whether she met the criteria for that diagnosis as set forth in the DSM–IV.7

The trial court highlighted these discrepancies, and plainly did not credit Dr. Rosenfeld.   Contrary to defendant's claim, the court was not required to believe Dr. Rosenfeld merely because he had treated her from 2000 to 2008.   See Stigliano v. Connaught Lab., Inc., 140 N.J. 305, 317 (1995) (a factfinder “could” find a treating doctor's testimony to be more credible than that of a retained expert).

C.

Third, regarding “[t]he earning capacities, educational levels, vocational skills, and employability of the parties,” N.J.S.A. 2A:34–23(b)(5), defendant notes that she has been receiving SSD benefits since before her 1988 surgery.   In Golian v. Golian, 344 N.J.Super.   337 (App.Div.2001), we stated that such an “adjudication of disability constitutes a prima facie showing that [defendant] is disabled, and therefore unable to be gainfully employed, and the burden shifts to [plaintiff] to refute that presumption.”  Id. at 342–43.8

The trial court found that defendant had disproved that presumption by clear and convincing evidence.9  The court credited Dr. Fremed's testimony that defendant was capable of working.   Further, Dr. Fremed testified that the 1997 renewal of defendant's SSD benefits appeared to be based on false information—that her seizures continued after the successful 1988 surgery—and there was no apparent basis for the 2010 renewal.

Defendant argues that she has been only sporadically and briefly employed due to her disabilities.   In fact, defendant for many years helped manage the properties of the man with whom she had a relationship until 1995.   She was also employed as a home health aide for three years, until she quit in 1995.

Further, plaintiff presented an employability expert, David B. Stein, Ph.D., who testified that the skills plaintiff had developed in her prior jobs, and her subsequent B.A. degree, gave her very transferrable skills that made her employable in numerous clerical jobs.   He thus found defendant could earn an annual salary upon reentry of $24,000 to $32,000.   He also found that defendant's fifteen-year “absence from the job market,” N.J.S.A. 2A:34–23(b)(6), was due not to her age or any documented disability, but to her choice not to work.   The trial court found Dr. Stein's testimony “quite believable.”   Although a “younger divorcee has a better opportunity to obtain employment than does an older individual who had been married and out of the work force for many years,” Heinl, supra, 287 N.J.Super. at 346, the trial court could nonetheless properly credit the employability expert's testimony.

D.

Fourth, defendant challenges the trial court's finding that she diverted “approximately” $28,000 of household funds to her own bank account during the marriage.   However, the testimony showed that plaintiff gave defendant cash for household expenses, and that she deposited $25,740 of unused cash into her own bank account without telling him.

Defendant also incorrectly contends that the court's finding that she “diverted funds which were meant to be used for living expenses for her and her husband and placed those funds in her own account” was not “any other factor [ ] which the court may deem relevant.”  N.J.S.A. 2A:34–23(b)(13).   That “ ‘catch-all category’ ” encompasses all evidence tending to prove a fact of consequence to the alimony determination.   See Clark, supra, 429 N.J.Super. at 74;  N.J.R.E. 401.   Thus, “ ‘to the extent that marital misconduct affects the economic status quo of the parties, it may be taken into consideration in the calculation of alimony.’ ”  Clark, supra, 429 N.J.Super. at 74 (quoting Mani v. Mani, 183 N.J. 70, 91 (2005)).

Indeed, we have held a spouse's diversion of marital funds to her own benefit is not only relevant, but if egregious can be the basis for barring an award of alimony.  Id. at 64, 74–77 (remanding to determine if the wife's diversion of $354,690 constituted egregious fault obviating any alimony award);  Reid v. Reid, 310 N.J.Super. 12, 20–23 (App.Div.) (upholding the denial of alimony to the wife because she diverted $501,500 to her personal account), certif. denied, 154 N.J. 608 (1998).   While defendant's diversion of over $25,000 in household funds to her personal account was not as egregious, it was still large enough to affect the economic status quo at least of defendant.   It was therefore appropriate for the trial court to consider it in calculating alimony.

E.

Finally, defendant asserts that permanent alimony should have been awarded under Jacobitti, which she characterizes as a “particularly analogous” case.   There, the parties had been married sixteen years, the husband failed to make a complete disclosure of his net worth, and the wife was confined to a wheelchair with progressively deteriorating health.  Jacobitti, supra, 135 N.J. at 573.   More importantly, the issue on appeal was not the propriety, type, or amount of alimony, but only “ ‘the validity of the alimony-payment trust.’ ”  Id. at 575.   Thus, Jacobitti is inapposite, and does not mandate an award of permanent alimony to defendant.

We conclude our review of the alimony order by recognizing that the statutory factors here are not entirely one-sided.   The balancing of alimony factors is a difficult task.   The trial court had the advantages of seeing and hearing the witnesses, garnering “a ‘feel of the case’ that can never be realized by a review of the cold record,” and having specialized “ ‘expertise in family matters.’ ”  N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009).   Generally, “[w]e will not second-guess a trial judge's sound exercise of discretion” on alimony matters.  Reese v. Weis, 430 N.J.Super. 552, 572 (App.Div.2013).   Here, we find no clear abuse of discretion in the trial court's denial of permanent alimony.  J.E.V., supra, 426 N.J.Super. at 485.

IV.

Defendant argues that the trial court erred in denying her motion to reconsider the denial of permanent alimony.   That motion largely raised arguments we address above.   It also highlighted plaintiff's deposition testimony, but the trial court could and did believe his trial testimony to the extent his answers differed.   We find no abuse of discretion in denying reconsideration.  Cummings v. Bahr, 295 N.J.Super. 374, 389 (App.Div.1996).

V.

Plaintiff cross-appeals the award of the BMW to defendant.   He claims he bought the BMW in 2007 for his own use.   However, he testified that he kept driving his 2000 Buick LeSabre, and that defendant drove the BMW “all the time.”   She testified that he expressly bought the BMW for her, that she used it for the following four years, and that he drove the BMW only three or four times.   The evidence thus supported the trial court's finding that he purchased the BMW for her use.

Plaintiff asserts that the BMW was immune from equitable distribution because he purchased it using proceeds from the sale of stock he owned before marriage.   In Painter v. Painter, 65 N.J. 196 (1974), the Supreme Court held that property owned by a spouse before marriage, “as well as any asset for which the original property may be exchanged or into which it, or the proceeds of its sale, may be traceable,” is not subject to equitable distribution.   Id. at 214.   However, if a spouse transfers such exempt property into a marital asset, he makes an interspousal gift that is subject to equitable distribution.  Pascarella v. Pascarella, 165 N.J.Super. 558, 563–64 (App.Div.1979);  Perkins v. Perkins, 159 N.J.Super. 243, 245–46 (App.Div.1978).

The Legislature after Painter exempted from equitable distribution gifts from third parties, but it provided that “interspousal gifts ․ shall be subject to equitable distribution.”  N.J.S.A. 2A:34–23(h);  cf.  Painter, supra, 65 N.J. at 214–17 (ruling that all gifts are subject to equitable distribution).   Thus, a spouse's use of the proceeds from the sale of premarital stock to purchase a marital asset constitutes an interspousal gift subject to equitable distribution.  Pascale v. Pascale, 274 N.J.Super. 429, 433–35 (App.Div.1994), aff'd in part, rev'd in part on other grounds, 140 N.J. 583 (1995).

Further, in equitably distributing the purchased marital asset, “the court is not compelled to distribute property to accommodate th[e] origin” of the proceeds used for its purchase.  Id. at 435 (upholding the trial court's refusal to grant the gifting spouse a credit for the gifted funds or a more favorable distribution of the asset);  Pascarella, supra, 165 N.J.Super. at 564;  Perkins, supra, 159 N.J.Super. at 246.

Plaintiff used the proceeds of his exempt stock to purchase a marital asset for defendant's use.   He emphasizes that he retained the title to the BMW. However, “[t]he general purpose of [the equitable distribution] provision is to empower courts ‘to allocate marital assets between the spouses, regardless of ownership.’ ”  L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 496 (1995) (quoting Painter, supra, 65 N.J. at 213).   The trial court could therefore equitably “divide the marital assets between the spouses irrespective of legal title.”  Roselin v. Roselin, 208 N.J.Super. 612, 616 (App.Div.), certif. denied, 105 N.J. 550 (1986).

Although the trial court did not explain that its transfer of the BMW was equitable distribution, that was the obvious basis for distributing this property “which was legally and beneficially acquired by them or either of them during the marriage.”  N.J.S.A. 2A:34–23(h).

Moreover, distributing the BMW to defendant was plainly equitable.   The BMW had been bought for defendant's use, and she drove it for four years while plaintiff had another car he preferred.   Further, by the time of trial, plaintiff resided in a nursing home, could not walk, and had not driven for some time.   Considering “[t]he economic circumstances of each party,” and the other factors in N.J.S.A. 2A:34–23.1, the court did not “ ‘mistakenly exercise[ ] its broad authority to divide the parties' property.’ ”  Tannen v. Tannen, 416 N.J.Super. 248, 281 (App.Div.2010), aff'd o.b., 208 N.J. 409 (2011).

VI.

Lastly, defendant appeals and plaintiff cross-appeals the trial court's order that each should pay his or her own counsel fees.   The trial court's January 10, 2012 written opinion considered all of the factors set forth in Rule 5:3–5(c), including “the financial circumstances of the parties,” “the amount of fees previously paid to counsel by each party,” “the ability of the parties to pay their own fees or to contribute to the fees of the other party,” “the reasonableness and good faith of the positions advanced by the parties both during and prior to trial,” and “the results obtained.”  Ibid.;  see N.J.S.A. 2A:34–23.   The trial court found that both parties had paid similar amounts of fees, had liquid assets, and advocated their positions in good faith.   The court recognized that plaintiff had more assets, but found his settlement offer (including his offer to let defendant retain the BMW) was more reasonable than defendant's demand and was closer to the final result.

The decision to deny counsel fees under Rule 5:3–5(c) “is left to the sound discretion of the trial court,” and is disturbed “ ‘only on the rarest occasions, and then only because of a clear abuse of discretion.’ ”  Gnall, supra, 432 N.J.Super. at 165 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).   We find no clear abuse of discretion here.

Affirmed on the appeal and cross-appeal.

FOOTNOTES

1.  FN1. On February 14, 2012, the court issued an order memorializing its oral ruling striking portions of defendant's reply certification in support of her reconsideration motion.   Although she appealed that order, and the March 24, 2010 pendente lite order, she does not make any arguments in her appellate brief concerning those orders.   Therefore, we do not address their propriety.   See Sklodowsky v. Lushis, 417 N.J.Super. 648, 657 (App.Div.2011) (“An issue not briefed on appeal is deemed waived.”).

2.  FN2. The factors listed in N.J.S.A. 2A:34–23(b) are (1) the parties' “actual need and ability ․ to pay”;  (2) “[t]he duration of the marriage”;  (3) the parties' “age, physical and emotional health”;  (4) “[t]he standard of living established in the marriage ․ and the likelihood that each party can maintain a reasonably comparable standard of living”;  (5) “[t]he earning capacities, educational levels, vocational skills, and employability” of each party;  (6) “[t]he length of absence from the job market of the party seeking maintenance”;  (7) childcare responsibilities;  (8) “[t]he time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment”;  (9) any “history of the financial or non-financial contributions to the marriage”;  (10) “[t]he equitable distribution of property ordered”;  (11) the investment income of either party;  (12) the tax consequences of an alimony award;  and (13) “[a]ny other factors which the court may deem relevant.”

3.  FN3. We reach this conclusion without considering the trial court's finding that the marriage was based on “convenience” rather than love.

4.  FN4. Lynn, in turn, quoted Lepis v. Lepis, 83 N.J. 139, 155 (1980).   Neither Lynn nor Lepis involved consideration of a pre-marital period in calculating alimony.   Cf. Crowe v. De Gioia, 90 N.J. 126, 132 (1982) (declining “to view non-marital relationships as if they were lawful marriages,” and holding that such relationships do not entitle unmarried persons “to alimony, either permanent or temporary”).

5.  FN5. We need not consider any tension between the amendment and McGee because McGee does not alter the outcome here.

6.  FN6. Defendant notes that she also had breast cancer, but it is undisputed that she has been free of any cancer since 2002.

7.  FN7. See American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders (4th ed.   Text Revision 2000).

8.  FN8. In Villanueva v. Zimmer, 431 N.J.Super. 301, (App.Div.), certif. denied, 216 N.J. 430 (2013), we held that an SSA disability determination is inadmissible hearsay and prejudicial in a jury trial.   We emphasized that Golian was limited to the circumstances of that case, namely a Family Part decision on financial matters such as alimony, where the party now disputing disability had assisted the allegedly disabled party to obtain the award.  Id. at 319–20.   We assume without deciding that Golian applies here.

9.  FN9. The trial court imposed a clear and convincing burden of proof based on Wasserman v. Parciasepe, 377 N.J.Super. 191, 199–200 (Ch. Div.2004).   However, we did not require such a standard of proof in Golian, nor in any subsequent cases.

PER CURIAM

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