It has been my experiencing practicing as a divorce lawyer here in my hometown of East Brunswick, New Jersey that far too many folks hire an attorney who does not focus only on family and divorce law. Simply put, even a lawyer with the best intentions can ruin their client’s lives. A lawyer who only handles divorce and child custody cases understand what a “reasonable” position is and, just as importantly, what an “unreasonable” position is. The attorneys at my law firm are always honest with our legal advice and opinions, even if it is not what our client “wants” to here. In the Superior Court of New Jersey, a judge of the Family Part never looks favorably at a litigant who takes unreasonable positions, which usually forces an unnecessary trial (and attorney’s fees).
The recent case of Chiann-Ru Liou v. Pukao Ma, is an example where the husband’s attorney failed to provide their client with sound legal advice. Instead, the New Jersey Appellate Division affirmed the trial courts award of counsel fees to the wife’s lawyer. The court’s decision resulted in the husband bearing seventy-five percent of the total fees. Now, a party’s ability to pay is just one factor. However, the Appellate Division made special note that the husband took unreasonable positions throughout the proceedings, such as his opposition to alimony and his insistence on sole custody of the children. The appellate panel held that they will only disturb a trial court’s determination of counsel fees only on the rarest occasion, and then only because of a clear abuse of discretion. The Appellate Division found no abuse of discretion and were satisfied that the trial judge provided adequate reasons for her determination. The Family Part judgment was affirmed on all issues. For more information on this issue, please contact my office today.
In Chiann-Ru Liou v. Pukao Ma, husband Michael Ma appealed from a final judgment of divorce entered February 8, 2013, and raised questions regarding alimony, equitable distribution, and counsel fees. The couple was married in Taipei, Taiwan on July 1994. They had two sons together, born in 1995 and 1997. Wife, Chiann Ru-Liou filed her divorce complaint in June 2008. When the amended judgment of divorce was entered the wife was forty-nine years old, and defendant was fifty-six.
Both husband and wife were highly educated. The wife had a masters degree in accounting, and the husband had two masters in engineering and computer science. The wife worked as an accountant, and the husband as a computer consultant. The husband worked through an S corporation, M & C Consulting Services, Inc., which the parties owned jointly during the marriage, but which the husband solely owned when it filed its 2010 taxes. At first the couple lived in a home purchased by the husband before the marriage in Middlesex. The wife had sold her own pre-marital home and mixed the proceeds from the sale with the marital assets. The parties eventually purchased a second home in Manalapan where they resided for the rest of their marriage. They rented out their home in Middlesex. One month before trial, they sold the Manalapan home. The husband moved back to the Middlesex house, and the wife bought a condominium in Manalapan.
Prior to trial the parties agreed to equalize the coverture portion of their retirement accounts, and to equally divide selected assets. The Family Part judge awarded the wife permanent alimony of $ 35,000 a year, starting June 28, 2012. In addition, the court also granted the wife an adjustment of pendent lite support, and increased the husband’s share from sixty to seventy percent. Pendente lite means "awaiting the litigation" or "pending the litigation". In divorce a pendente lite order is often used to provide for the support of the lower income spouse while the legal process moves ahead. There are several ways to obtain temporary support. The first is through an agreement with your spouse. Sometimes, divorcing couples can work out a temporary arrangement by deciding which spouse will be responsible for paying a portion, or all, of the monthly expenses.
If the agreed-upon support amount is fair and reasonable, spouses, with the aid of their attorneys, can enter into a consent order that outlines their agreement. A consent order is a document that sets forth the terms and conditions of the temporary support obligations and is executed by the attorneys and signed by a judge. Once entered by the court, the terms and conditions of the consent order become the supported spouse’s pendente lite award.
The second way to get temporary support is to go to court, and ask a judge for help. For example, if your spouse refuses to provide you with any financial support or provides an insufficient amount of support, you will have to file an application with the court, and ask for pendente lite relief. In deciding how much financial support is adequate, a court will consider the financial needs of the supported spouse, the means or financial ability of the paying spouse, and the marital standard of living.
Regarding equitable distribution, the judge awarded the wife fifty percent of the paydown during the marriage of the mortgage on defendant’s pre-marital property in Middlesex, but rejected her claim to a share of the property’s appreciation during the marriage. Additionally, the court awarded the wife fifty percent of the $ 17,007 balance in the husband’s consulting firm’s bank account, even though the court’s opinion did not mention whether the judge considered the firm a distributable marital asset. The proceeds from the sale of the Manalapan property were ordered to be equally divided, and various other marital accounts were ordered to be split evenly. The husband alleged that the wife had been withdrawing funds from the account, and claimed he was entitled to credit of the withdrawals. His claim was rejected.
The wife was granted primary residential custody of the two teenage children, with the husband receiving every-other-weekend parenting time. The court did not touch the issue of college expenses and stated that the issue “was not ripe.” Both parents were ordered to maintain life insurance with equal death benefits. The husband was ordered to pay $ 260 in child support weekly. The amount was pursuant to New Jersey child support guidelines, and based on a finding that the husband earned an annual gross income of $ 164,994, while the wife earned $ 73,008. While both parents net income exceeded the maximum amount subject to the guidelines, the court declined to order any additional support. Finally, the court decided that the husband should have to bear fifty percent of the wife’s counsel fees and cost. Accordingly the court awarded the wife $ 60,000.
On appeal the husband argued that the court should not have awarded any alimony, and alternatively, even if alimony was appropriate, the amount awarded was excessive. He also challenged the adjustment of pendent lite support. In regards to equitable distribution, the husband challenged three provisions of the amended judgment of divorce: the credit to the wife of half the mortgage reduction of the pre-marital property; the denial of credit to him for the wife’s withdrawals; and equal division of his business account. He also challenged the counsel fee award.
The Appellate Division stated that an appeals court’s authority to review a trial court’s fact-finding is limited. Generally, a trial court’s findings are binding on appeal as long as they are supported by adequate, substantial, and credible evidence. This deference to the trial court is especially appropriate when the evidence is mostly based on testimony and involves questions of credibility. According to the 1998 case of Cesare v. Cesare, “because of the family court’s special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding.” That being said the interpretation of the law and the legal consequences that flow from established facts are not entitled to the same deference. After having considered the husband’s arguments in light of the record and applicable principles of law, the Appellate Division found none of them persuasive. The Family Part judge’s findings were supported by adequate, substantial credible evidence.
A decision to award alimony lies within the family court’s broad authority. The Appellate Division will not overturn a alimony award unless there is a clear abuse of discretion, a failure to correctly apply the governing legal principles, or findings of fact that were clearly mistaken or lacking support in the record. Because of the disparity between the parties earning power and financial needs the husband’s argument that the court should have denied alimony altogether completely lacked merit. In regards to the pendent lite increase, the trial court adjusted the husband’s share to seventy percent pursuant to Mallamo v Mallamo. The Appellate Division recognized that the trial courts explanation was limited simply to the fact that a seventy-thirty split was closer to the ration of the parties’ incomes. Still the Appellate Division refused to disturb the Family Part’s determination because the award appeared to be in the best interest of equity.
In response to the equitable distribution arguments, the appellate panel stated that the distribution of marital assets is not a routine or mechanical exercise, and it requires sensitivity towards equity. Thus the Appellate Division’s review is limited to determining whether the court abused its broad discretion, or came to a result predicated on a misconception of law, or findings of fact that are contrary to the evidence. New Jersey courts view marriage as a partnership, and recognize the contributions of both parties. The Family Part has recognized that a non-owning spouse might be eligible for a share of the mortgage paydown during the marriage on an otherwise exempt, premarital asset. The Appellate Division found no abuse of discretion. The court found the same way regarding the distribution of the business account because until 2008, the wife was a fifty percent owner of M&C, and received half of the earnings.
The Appellate Division was also unpersuaded by the husband’s claim that the court wrongly rejected his claim of credit for dissipation of assets, or withdrawals by the wife. To determine whether a spouse has dissipated assets, courts consider: how close the withdrawals where to the separation; whether the withdrawals were typical of what the parties made before the marriage broke down; whether the expenditure benefited both spouses; and the need for the withdrawal. The party that alleges the dissipation bears the burden of proof. At trial the husband failed to present evidence to satisfy the above-mentioned factors.
As my law firm only handles divorce, child custody and other family law related matters, please give my office a call if you need our assistance. Thank you.