Slutsky v. Slutsky

• Citation: 451 N.J.Super. 332,167 A.3d 660
• Parties: Nancy G. SLUTSKY, Plaintiff–Respondent/Cross–Appellant, v. Kenneth J. SLUTSKY, Defendant–Appellant/Cross–Respondent. Nancy G. Slutsky, Plaintiff–Respondent, v. Kenneth J. Slutsky, Defendant–Appellant. Donahue, Hagan, Klein & Weisberg, LLC, Respondent.
• Decision Date: 08 August 2017
• Court: New Jersey Superior Court – Appellate Division

451 N.J.Super. 332

167 A.3d 660

Nancy G. SLUTSKY, Plaintiff–Respondent/Cross–Appellant,

v.Kenneth J. SLUTSKY, Defendant–Appellant/Cross–Respondent.

Nancy G. Slutsky, Plaintiff–Respondent,

v.Kenneth J. Slutsky, Defendant–Appellant.

Donahue, Hagan, Klein & Weisberg, LLC, Respondent.

Superior Court of New Jersey, Appellate Division.

Argued December 1, 2016

Decided August 8, 2017

Edward S. Snyderargued the cause for appellant/cross-respondent in A–5829–13 and Scott D. Danaher argued the cause for appellant in A–2813–14 (Snyder, Sarno, D'Aniello, Maceri & DaCosta, LLC, attorneys; Mr. Snyder, of counsel and on the briefs; Mr. Danaher, on the briefs).

Ronald M. Abramson argued the cause for respondent/cross-appellant in A–5829–13 (Winne, Banta, Basralian & Kahn, PC, attorneys; Mr. Abramson, of counsel and on the brief).

Donahue, Hagan, Klein & Weisberg, LLC, pro se respondent in A–2813–14 (Francis W. Donahue, of counsel and on the brief).

Before Judges Lihotz, Hoffman and Whipple.

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

These two appeals arise from the parties' matrimonial litigation. The court scheduled the matters back-to-back before the same panel to address all issues in a single opinion.

In Docket No. A–5829–13, defendant Kenneth J. Slutsky appeals from a May 30, 2014 final judgment of divorce (final judgment). He challenges various aspects of final judgment; most significantly, the rejection of evidence regarding the need to repay family loans and the valuation and equitable distribution of his interest as an equity partner in a large New Jersey law firm. Additionally, defendant appeals from the ordered equitable distribution of what he asserts were premarital IRAs and the awarded counsel fees and expert costs to plaintiff Nancy Slutsky. Defendant further challenges a July 28, 2014 order denying his motion for reconsideration, and a second order filed the same date, which implemented a payment schedule for the ordered amount of equitable distribution and fees.

Plaintiff cross-appeals, challenging the final judgment and the July 28, 2014 orders. She argues the judge improperly denied her claim for financial adjustments to account for insufficient pendente lite support, and maintains the trial judge abused his discretion in not ordering defendant to satisfy the entirety of her counsel fees and expert costs, by allowing defendant to satisfy ordered obligations over time.

In the second matter, Docket No. A–2813–14, defendant appeals from a January 9, 2015 order denying his motion to dismiss for lack of standing, a petition filed by plaintiff's former counsel to enforce the order mandating defendant remit payment to satisfy obligations owed to plaintiff. Defendant argues counsel no longer represented plaintiff in the application, making counsel adverse to her interests.

Before this court, defendant moved to supplement the record with subsequent orders relating to the amount of plaintiff's counsel fee obligation. The reviewing motion panel deferred the matter for consideration in this opinion. We grant the motion.

For the reasons discussed in our opinion, we affirm the order rejecting defendant's request to require plaintiff to contribute to the repayment of monies transferred from various family trusts; we reverse the evaluation of the goodwill attached to defendant's interest in his law firm, as well as the percentage interest in this asset, granted to plaintiff; we reverse the July 28, 2014 order subjecting defendant's Union Central and Wells Fargo IRAs to equitable distribution; we reverse the award of counsel fees, but affirm defendant's ordered payment of expert costs. Additionally, we affirm the final judgment provision denying plaintiff's request for an allocation of additional support based on the pendente lite award and reject as unavailing her claim for an award of additional attorney's fees.

Because various provisions in the final judgment are vacated, the order under review in A–2813–14 is reversed. The matter must be reviewed on remand by a different Family Part judge.

I.

After thirty years of marriage, plaintiff filed a complaint for dissolution of the parties' marriage and review of her related requests for alimony, equitable distribution, and satisfaction of debts, counsel fees, and costs. The litigation was difficult and protracted. Some delays in the final disposition occurred from June 2009 to April 2013, to abide the conclusion of a guardianship proceeding and another delay resulted in 2011, to accommodate one party's medical concerns. Ultimately, trial commenced on January 6, 2014, and was conducted over nineteen days. The judge issued a written opinion, addressing all disputed issues. Final judgment was filed on May 30, 2014.

Post-trial cross-motions sought to modify certain provisions of the final judgment and the judge issued an amended final judgment, correcting clerical errors. On the same date, two other orders were filed. These orders effectuated provisions of the amended final judgment, and included a payment schedule for defendant's satisfaction of the ordered obligations. Motion practice continued. Subsequent orders denied defendant's request to stay pending appeal the financial obligations set forth in the final judgment; denied defendant's request for additional findings of fact and conclusions of law; and granted a limited stay to allow defendant to request this court stay execution of the amended final judgment. We denied defendant's stay motion.

The parties challenged various provisions of the final judgment arguing the judge's insufficient factual findings could not sustain the legal conclusions reached, and contended legal error and abuse of discretion require reversal. We recite the well-settled standards guiding our review of Family Part orders and judgments.

In our review of a non-jury trial, we defer to a trial judge's factfinding "when supported by adequate, substantial, credible evidence." Cesare v. Cesare , 154 N.J. 394, 412, 713 A .2d 390 (1998). We also note proper factfinding in divorce litigation involves the Family Part's "special jurisdiction and expertise in family matters," which often requires the exercise of reasoned discretion. Id. at 413, 713 A .2d 390. In our review, "[w]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Mountain Hill, LLC v. Twp. of Middletown , 399 N.J. Super. 486, 498, 945 A. 2d 59 (App. Div. 2008) (alteration in original) (quoting State v. Barone , 147 N.J. 599, 615, 689 A .2d 132 (1997) ), certif. denied , 199 N.J. 129, 970 A .2d 1046 (2009). Consequently, when this court concludes there is satisfactory evidentiary support for the trial court's findings, "its task is complete and it should not disturb the result." Beck v. Beck , 86 N.J. 480, 496, 432 A .2d 63 (1981) (quoting State v. Johnson , 42 N.J. 146, 161–62, 199 A .2d 809 (1964) ).

In bench trials, our "[d]eference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Cesare , supra , 154 N.J. at 412, 713 A .2d 390 (quoting In re Return of Weapons to J.W.D. , 149 N.J. 108, 117, 693 A .2d 92 (1997) ). We recognize a trial judge who observes witnesses and listens to their testimony, develops "a feel of the case" and is in the best position to "make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P. , 196 N.J. 88, 104, 952 A .2d 436 (2008). In contrast, review of the cold record on appeal "can never adequately convey the actual happenings in a courtroom." N.J. Div. of Youth & Family Servs. v. F.M. , 211 N.J. 420, 448, 48 A. 3d 1075 (2012).

Reversal is warranted when the trial court's factual findings are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am. , 65 N.J. 474, 484, 323 A .2d 495 (1974) (quoting Fagliarone v. Twp. of N. Bergen , 78 N.J. Super. 154, 155, 188 A .2d 43 (App. Div.), certif. denied , 40 N.J. 221, 191 A .2d 61 (1963) ). All "legal conclusions, and the application of those conclusions to the facts, are subject to our plenary review." Reese v. Weis , 430 N.J. Super. 552, 568, 66 A. 3d 157 (App. Div. 2013).

In this matter, the trial judge issued a written opinion, identified the undisputed facts, related aspects of expert testimony, and stated his conclusions. Noting not all decisions set forth in the final judgment are challenged on appeal, we limit our discussion to facts underlying discrete challenges, which we include in the discussion of each individual issue.

II.

We start with the nine issues raised by defendant on appeal. Where appropriate, we have combined arguments directed to similar matters.

A.

Initially, defendant argues he was denied a fair trial because plaintiff engaged in "willful, contumacious behavior that made a mockery of justice," for which the judge declined to sanction her. Defendant contends, "no reported case in New Jersey has recited facts demonstrating more of an affront to the justice system than the actions of this plaintiff" during the pendency of this case. Review of defendant's argument recites plaintiff's obstreperous behavior "effectively precluded [him] from cross-examining plaintiff ... the key witness on the issue of family loans." Defendant maintains the judge should have sanctioned plaintiff, followed through on his threats to strike her pleadings, and, at the very least, draw an adverse inference on the loan issue "instead of placating plaintiff" and treating her in a solicitous manner. Defendant's argument in Point I strikes only at his request to equitably allocate monies borrowed from several family trusts; a related issue is raised in Point V.

Defendant testified regarding the nature and amount of the loans from various family trusts. He explained plaintiff's spending resulted in a "tsunami" of credit card debt,...