Original by liaoqinmei


									                 NOT FOR PUBLICATION WITHOUT THE

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1935-09T3






          Submitted February 15, 2011 - Decided June 14, 2011

          Before Judges Graves and Messano.

          On appeal from the Superior Court of New
          Jersey, Chancery Division, Family Part,
          Monmouth County, Docket No. FM-13-932-07-B.

          Corinne Campi, attorney for appellant/cross-

          Maybruch & Zapcic, L.L.C., attorneys for
          respondent/cross-appellant (Andrew M. Zapcic,
          Sr., and Matthew R. Goode, on the brief).


     Plaintiff Norman Schleiffer appeals from various provisions

of the final judgment of divorce (JOD) entered after trial.

Plaintiff was married to defendant, Lois Schleiffer, in 1986 and

the couple had three children:    a son, born in 1990, and two

daughters, one born in 1993 and the other in 1996.   During their
marriage,   plaintiff,       an   optician,     maintained    a      practice    and

earned    nearly    $80,000      per   year.     Defendant,      a    graduate   of

Brookdale       Community    College     and    The    Fashion       Institute   of

Technology, worked when the couple first married, but, with the

birth of the couple's son, predominantly remained at home to

raise the children.         Later in the marriage, defendant re-entered

the workforce as a substitute pre-school teacher and, on some

occasions, worked at a day-care facility, the Goddard School.

    Plaintiff filed his complaint in December 2006.                      The case

was tried on various dates between October 23 and November 14,

2008.    The issues at trial included:                alimony; child support;

custody; distribution of two properties, the marital home and a

second property in Margate; distribution of plaintiff's 401(k)

plan,    from    which   funds    were   withdrawn     by   plaintiff      without

defendant's consent; allocation of medical expenses and "temple

expenses"; and attorneys' fees.              Both parties testified at trial

and the court interviewed the children. At the time of trial,

plaintiff and defendant continued to live in the marital home,

but indicated an intention to reside separately in the same town

after the divorce.          The trial judge rendered his oral decision

on November 17, 2009, and the judgment under appeal was entered

the same day.

    As will be discussed in more detail below, after imputing

income to defendant, the judge awarded her $16,400 per year in

                                         2                                A-1935-09T3
alimony, deferred until the marital home was sold; granted joint

legal and physical custody of the children and fixed a parenting

schedule;    and    ordered     plaintiff    to   be     responsible      for   the

children's medical insurance, with unreimbursed medical expenses

to be shared, 70% by plaintiff and 30% by defendant.                     The judge

further ordered that temple expenses for the couple's youngest

daughter be apportioned in the same ratio.

       Regarding    equitable    distribution,     the     judgment      reflected

that based upon the parties' agreement, the net proceeds of the

marital home would be equally split, with plaintiff paying all

"roof expenses" until the sale, and defendant "paying for all

household food and related items."            The judge awarded defendant

"20% interest, or $63,000" in the Margate property which had

been    appraised    at   $315,000.         The   judge    further       made   the

following award to defendant regarding plaintiff's "Retirement


            i.     the   entire   balance           of     .   .     .
            [p]laintiff's 401(k);

            ii.     50%   of  the   $60,000  for   which
            [p]laintiff could not account after having
            taken a $113,986 advance against that 401(k)
            account; and,

            iii.      a   credit of  50%  of  $37,000
            representing the penalty incurred by the
            parties as a consequence of [p]laintiff's
            $113,986 advance.

                                       3                                  A-1935-09T3
       The judge also ordered plaintiff to maintain a $400,000

life insurance policy, and defendant a $100,000 policy, with the

children   as       beneficiaries.       Although    not      reflected     in      the

judgment, in his oral decision the judge granted plaintiff a

lien in the amount of $100,000 on defendant's estate pending her

purchase of the life insurance policy.                The judge denied both

parties' requests for attorney's fees.

       Plaintiff     now   appeals,    claiming:    1)   the    judge     erred     by

failing to inquire as to the custody preference of his son; 2)

that     the    court's        determinations       regarding       the        401(k)

distribution        to   defendant    were   erroneous;       and   3)    that      the

allocation     of    unreimbursed     medical   expenses      "need[ed]"       to    be

"clarified."        Defendant cross-appeals, alleging the judge erred

in the amount of income he imputed to her; in ordering joint

custody;   in       dividing   the    unreimbursed    medical       expenses        and

temple expenses 70/30%; in placing a lien on her estate until

she purchased life insurance; and in denying attorneys' fees.

       We have considered the arguments raised in light of the

record   and    applicable     legal    standards.       We    affirm     in   part,

reverse in part, and remand for further proceedings consistent

with this opinion.


                                         4                                 A-1935-09T3
    We affirm substantial portions of the judgment of divorce,

including the alimony award that defendant challenges in her

cross-appeal.     "'[T]he goal of a proper alimony award is to

assist the supported spouse in achieving a lifestyle that is

reasonably comparable to the one enjoyed while living with the

supporting spouse during the marriage.'"                Steneken v. Steneken,

183 N.J. 290, 299 (2005) (quoting Crews v. Crews, 164 N.J. 11,

16 (2000)).     "The supporting spouse's obligation is set at a

level that will maintain that standard."                 Innes v. Innes, 117

N.J. 496, 503 (1990) (citing Lepis v. Lepis, 83 N.J. 139, 150

(1980)).    An appropriate alimony award must also consider "the

supported   spouse's    ability   to       contribute    to   his   or    her   own

support."   Crews, supra, 164 N.J. at 27.           "Income may be imputed

to a party who is voluntarily unemployed or underemployed. . . .

This requires intentional conduct without just cause."                     Golian

v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (citing

Dorfman v. Dorfman, 315 N.J. Super. 511, 516 (App. Div. 1998)).

    "The award of spousal support is broadly discretionary."

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

aff'd as modified, 183 N.J. 290 (2005).            The factors codified in

N.J.S.A.    2A:34-23(b)    "frame      the     exercise       of    the   court's

discretion."    Ibid.

    Defendant argues that the judge mistakenly imputed $29,000

in income to her and "failed to delineate how [he] arrived at

                                       5                                  A-1935-09T3
this figure."        Specifically, she contends that the judge did not

find she was "voluntarily underemployed" so as to trigger the

imputation of income.          We disagree.

       The   judge        acknowledged       that        defendant       was     "currently

unemployed,"        but     also      provided       a     lengthy           recitation      of

defendant's employment history and educational background.                                    He

noted defendant had worked as a part-time pre-school teacher,

and could augment the $18,500 she had earned in that capacity

with    additional        part-time    employment.              The    judge    noted       that

defendant testified she would not work part-time at the Goddard

School because "she 'didn't go to college to work at a day care

center.'"      As a result, the judge found that defendant "ha[d]

not     pursued     any    other     employment."          In    short,        the     judge's

findings     and    conclusions        in    this    regard           were    supported      by

"substantial,       credible       evidence,"       Cesare       v.    Cesare,       154    N.J.

394, 412 (1998), and we see no reason to disturb them.

       We    also    reject        plaintiff's       and        defendant's           argument

regarding the award of joint legal and                    physical       custody       of    the

three    children.          Plaintiff       contends       the        judge    should       have

specifically asked his son as to his preference.                                     Defendant

contends     that    the     judge     erroneously         awarded        joint       physical

custody of the children instead of awarding her sole physical


                                             6                                        A-1935-09T3
       The couple's son was eighteen-years old at the time of

trial and the parties stipulated that he was not emancipated,

i.e.,    he    lived     at    home,     was       financially        dependent      on    his

parents, and was attending classes at a community college.                                When

interviewed by the judge, the son indicated that he earned some

money working in his father's practice.                         The judge did not ask

whether he had a preference regarding which parent should have

custody of him.

       In making a custody determination, the judge must consider

"the circumstances of the parties and the nature of the case"

and    reach    a   decision      that    is       "fit,        reasonable     and    just."

N.J.S.A. § 2A:34-23.            "[T]he mere attainment of the age of 18

does    not    deprive    th[e]    court,          .    .   .    of   making    a    custody

determination."           Quinn v. Johnson, 247 N.J. Super. 572, 580

(Ch. Div. 1991).          The court may consider, among other factors,

the "preference of the child when of sufficient age and capacity

to reason as to form an intelligent decision."                           N.J.S.A. 9:2-4

(c).      In    doing    so,    the    court           should    "'conduct     a     private

examination of [the] child in order to discover [his] wishes as

to custody . . . [and] to ascertain the predilection of the

child.'"       Lavene v. Lavene, 148 N.J. Super. 267, 272-73 (App.

Div.) (quoting Callen v. Gill, 7 N.J. 312, 319 (1951)), certif.

denied, 75 N.J. 28 (1977).               However, "[t]he manner in which the

                                               7                                     A-1935-09T3
interview is conducted         . . . must be left to the trial judge’s

discretion."      Id. at 272.

      Here,   the    judge     conducted     a   thorough     interview     of    the

couple's son, asking questions regarding his possible separation

from his sisters.      The young man told the judge that he hoped to

find his own "place" and share it with his girlfriend.                         In our

mind,   the   judge    conducted       the   interview       in    an   appropriate

manner, asking questions that provided him with the necessary

information to make an informed judgment through application of

the   statutory     factors.      He   did    not   abuse    his    discretion     by

failing to ask whether the son preferred to live with one parent

or the other.

      Defendant contends that the judge erred in awarding joint

physical custody because such an award is appropriate only in

rare cases.       See Pascale v. Pascale, 140 N.J. 583, 597 (1995)

(noting "the continuum in this State for the 'parenting time' of

non-custodial parents is wide and the cases of 'joint physical

custody' are rare").         In Pascale, where the dispute centered on

an appropriate award of child support based upon the custodial

determination,      joint    "physical"      custody   was    defined     as    joint

responsibility for minor day-to-day decisions and "the exertion

of continuous physical custody by both parents over a child for

significant periods of time."           Id. at 596.

                                         8                                 A-1935-09T3
    We     note   initially      that    defendant      alleges      no   specific

deficiency in the judge's findings regarding custody, nor does

she allege that the judge failed to consider the appropriate

statutory factors.        N.J.S.A. 9:2-4.       The judge noted, in part:

            [B]oth parties [were] in good physical and
            emotional health. Neither t[ook] medication
            or abuse[d] alcohol or drugs. . . . Both
            parties   expressed  their   willingness   to
            accept custody. And there is no history of
            any unwillingness to allow parenting time.

Further,    he    applauded     both     parties      for   being     "attentive,

supportive parents . . . [who] have demonstrated that they can

communicate and cooperate in matters relating to the children."

    At the time of trial, plaintiff and defendant resided in

the same home with all three children, and intended, after the

divorce, to reside separately in the same town.                The judge noted

that both parties "shared household and child related duties for

several    years,"      and   "ha[d]    grown    accustomed     to    and    [we]re

comfortable providing for themselves and their children in the

absence of the other spouse."           The judge specifically considered

the statutory factors, noted that based upon his interviews of

all three children, they "would be happiest in a joint custodial

arrangement,"     and    that   such    an    order   "would   be    in   the   best

interest[s] of those children."              We see no reason to disturb the

judge's sound exercise of his broad discretion in this regard.

                                         9                                  A-1935-09T3
    We also affirm the denial of counsel fees to defendant.                     We

will only reverse a trial court's determination of counsel fees

on the "'rarest occasion'" and only if it represents a "clear

abuse of discretion."          Strahan v. Strahan, 402 N.J. Super. 298,

317 (App. Div. 2008)(quoting Rendine v. Pantzer, 141 N.J. 292,

317 (1995)).      Rule 5:3-5 (c) lists the factors to be considered,

including the financial circumstances of the parties; the good

or bad faith of either party; the ability of the parties to pay

counsel   fees;    and   the    extent    of     the   fees   incurred   by   both

parties. Ibid.

    Here, the trial judge considered the lack of bad faith by

either party.      He also determined that the parties did not have

the "financial wherewithal to pay or even contribute to the fees

of the other party."       The judge also reviewed the other relevant

factors under the Rule.            We find no abuse of discretion in

denying defendant an award of counsel fees.


    We are compelled, however, to reverse other aspects of the

judgment of divorce and remand the matter to the trial court for

further consideration.


    In Points Two through Four, plaintiff contends that the

trial court made a "mistake" in distributing the balance of the

                                         10                              A-1935-09T3
401(k) to defendant.          He contends that the award was contrary to

the "stipulations of the parties," and the judge "misapplied the

facts"      by    awarding       defendant       $18,500       as    a      penalty     for

plaintiff's early invasion of the account, and failed to award

him a credit for "his payment of credit card charges incurred

post   complaint"       and   through      defendant's        "dissipation        of    her

income during the demise of the parties['] marriage and through


       At   trial,     plaintiff     admitted      that       in    2006,    he   "moved"

$113,986 from his 401(k) account without defendant's knowledge

or permission to pay various expenses.                    According to plaintiff,

this     withdrawal      resulted     in     a    tax     assessment         of   between

"[$]35,000 and [$]45,000."              At the time of trial, plaintiff

testified        the   balance    remaining      in     the    401(k)       account     was

$28,734, though, in the post-trial submissions of the parties,

both agreed the balance was approximately $40,000.                          At trial and

in her post-trial submissions, defendant argued she was entitled

to one-half of the remaining balance; plaintiff conceded that

she was.

       The parties also acknowledged that they had taken out an

"equity line" of credit on their home in the amount of $135,000.

Plaintiff claimed that he used these funds to pay "[b]etween

[$]15,000 and [$]20,000" of his wife's credit card debt, and the

tax penalty associated with the early withdrawal from the 401(k)

                                           11                                     A-1935-09T3
account.     Expenditures for approximately $60,000 of the funds

received    from   the     home   equity   credit   line       could   not    be


      Without   any   extensive    review,   in   his   oral    opinion,     the

judge concluded:

            The defendant wife will be awarded 50
            percent of the $60,000 remaining balance.
            She will also receive a credit of 50 percent
            of   [$]37,000   representing  the   penalty
            incurred by the parties for the husband's
            secret 401[(k)] withdrawal. The Court agrees
            with the defendant wife that she should not
            have shared in paying that penalty. . . .
            She will be . . . given a credit of $18,500
            for 50 percent of the $37,000 penalty that
            was incurred for the early withdrawal. And
            the husband will also pay to the defendant
            wife the entire 401(k) balance, whatever
            that balance currently is.

In   the   judgment   of   divorce,   however,    the   judge    awarded     the

defendant the "entire balance" of the 401(k) account, "50% of

the $60,000 for which [p]laintiff could not account after having

taken a $113,986 advance against that 401(k) account," and "a

credit of 50% of $37,000 representing the penalty incurred by

the parties as a consequence of [p]laintiff's $113,986 advance."

The judge did not address plaintiff's claims regarding monies

used from the home equity line of credit and whether he was

entitled to a credit, or plaintiff's claims that some of the

monies withdrawn from the 401(k) were used for other interim


                                      12                               A-1935-09T3
     In    reviewing      a   trial    judge's      findings       "regarding      the

equitable distribution of . . . assets," an appellate court

"must [only] decide whether the trial court mistakenly exercised

its broad authority to divide the parties' property or whether

the result reached was bottomed on a misconception of law or

findings of fact that are contrary to the evidence."                         Genovese

v.   Genovese,     392    N.J.    Super.     215,    223    (App.     Div.    2007).

However, we need not accord deference when the trial judge's

findings    are    not     adequate    under     Rule      1:7-4     (a).         "[A]n

articulation of reasons is essential to the fair resolution of a

case."     Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div.

2000).     "Naked conclusions do not satisfy the purpose" of the

Rule.      Curtis v. Finneran, 83 N.J. 563, 570 (1980).                     See also

Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006)

(reversing a trial judge's decision for providing insufficient

legal reasons for dismissing the plaintiff's motion).

     From the record before us, it is difficult to conclude

exactly how much remained in the 401(k) account when equitable

distribution      was    made,   and   there   are    no    stated    reasons       for

awarding defendant the entire balance.                  Both parties conceded

that defendant was entitled to half of the remaining balance in

the 401(k), not the entirety.

     The     judge's      decision     to    penalize      plaintiff        for     his

undisclosed early withdrawal was well-grounded.                    See Forrestall

                                        13                                   A-1935-09T3
v. Forrestall, 389 N.J. Super. 1, 5 (App. Div. 2006) (quotations

omitted) ("[O]nce deposited in a 401(k) plan, funds may not be

removed without substantial penalties and taxes.").                 However, it

is difficult to discern why the judge fixed the amount at one-

half of $37,000 since plaintiff contends there was no evidence

as   to    what   the    penalty   was,     and   defendant   contends   it    was

actually more.       Perhaps the judge chose $37,000 because that was

in the range expressed by plaintiff in his testimony, but, if

that were the reason, the judge failed to explain his choice.

      Lastly, as noted, the judge never specifically addressed

plaintiff's claim that he was entitled to a credit because some

of   the    monies      used   from   the      withdrawal   were   expended    for

unnecessary expenses and costs incurred by defendant.                      It is

unclear to us whether the unaccounted $60,000 that the judge

used to credit defendant was from the 401(k) withdrawal, or from

the home equity line of credit, and, as noted, the judge never

addressed the issues regarding the balance of the parties' home

equity line of credit at all.1

  Plaintiff correctly notes that the judge "ignored this request
. . . in [the] transcript of [his] decision," and cites Mallamo
v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995), for authority in
urging consideration of these claims.       While expressing no
particular view as to whether Mallamo is relevant, we agree with
plaintiff that the judge failed to address the contention.

                                          14                             A-1935-09T3
       As a result, we are compelled to remand consideration of

these issues to the trial court.              We leave the conduct of the

remand hearing to the judge's sound discretion.

       We are also compelled to reverse the judge's decision to

divide unreimbursed medical expenses and temple expenses 70% to

plaintiff, and 30% to defendant.                  We assume, because it was

unexplained, that the ratio reflects a calculation based upon

the judge's assessment of plaintiff's income and the imputed

income to defendant, without consideration of the alimony award.

We therefore remand the issue for further consideration.2

       Lastly, on remand, the judge shall consider the necessity

of granting plaintiff a lien upon defendant's estate pending her

purchase of a $100,000 life insurance policy for the children's

benefit.      As    much    time   has   passed    since    the   trial,   we    are

uncertain whether defendant's appeal in this regard is moot.

Moreover, in his oral decision, the judge failed to explain his

rationale for awarding this relief.                If the judge is convinced

such   an   award   is     still   merited,   he    shall   fully   explain      his

reasons at the time of the remand.

  Plaintiff contends the issue of temple expenses is moot because
the couple's youngest daughter has completed her religious
training.   The judge may, of course, consider the appropriate
award, including credits for past expenses, at the time of the
remand hearing.

                                         15                                A-1935-09T3
    Affirmed   in   part,   reversed   in   part,   and   remanded   for

further proceedings.   We do not retain jurisdiction.

                                 16                            A-1935-09T3

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