NOT FOR PUBLICATION WITHOUT THE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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