DARYL B. WAINER VS. MIGUEL A. WAINER(FM-02-1405-14, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4321-14T2

DARYL B. WAINER,

Plaintiff-Respondent,

v.

MIGUEL A. WAINER,

Defendant-Appellant.

___________________________________

Argued December 20, 2016 – Decided July 13, 2017

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part, Bergen

County, Docket No. FM-02-1405-14.

Michael Confusione argued the cause for

appellant (Hegge & Confusione, LLC, attorneys;

Michael Confusione, of counsel and on the

brief).

Daryl B. Wainer, respondent, argued the cause

pro se.

PER CURIAM

In this appeal from a final judgment of divorce, defendant

Miguel A. Wainer challenges the court's equitable distribution of

marital assets, the amount of alimony awarded to him, the

allocation of college expenses, the failure to require life

insurance as security for alimony, and the denial of counsel fees.

We affirm in part, substantially for the reasons set forth in the

trial court's thirty-nine page decision; but are constrained to

remand in part for a more complete statement of reasons for the

court's order regarding college expenses and for an explicit

determination regarding life insurance.

I.

After twenty-five years of marriage, plaintiff Daryl B.

Wainer filed for divorce in December 2013. The parties' only

child was then a student at a private university. Plaintiff was

fifty-six years old and still active in the workplace. Defendant

was seventy-nine years old and retired. Plaintiff earned a

stipulated annual income of $92,419 and defendant received almost

$13,000 a year in Social Security benefits. After a four-day

trial conducted in late 2014 and early 2015, at which the parties

were the sole witnesses, the trial court awarded defendant open

durational alimony of $27,500 a year.

As for equitable distribution, the court allocated to each

party equal shares of: the parties' personal property; a Fidelity

investment account, which the court valued at $78,249; plaintiff's

pension, valued at $122,965 and to be distributed pursuant to a

qualified domestic relations order; and the plaintiff's marital

2 A-4321-14T2

credit card debt of $25,000. Regarding an apartment in Buenos

Aires that the parties beneficially owned, the court directed the

parties to sell the property within two years, with defendant

receiving sixty-five percent of the net proceeds and plaintiff

thirty-five percent. Neither party presented an appraisal of the

apartment's value, although defendant opined that it was worth

$350,000, but would be more marketable within two years after

trial, with an anticipated change in economic policy in Argentina.

The judge directed the parties to share equally in the payment

of the roughly $34,000 in college loans for the parties' child,

which were in plaintiff's name. The court also required defendant

to pay forty percent of their child's senior year college costs

and other child-related expenses. The court ordered plaintiff to

retain defendant's share of the Fidelity account, $39,124.50, in

satisfaction of these obligations and his share of the marital

credit card debt.

Finally, the court ordered that both parties remain

responsible for their own attorney's fees and costs. The court

did not address whether plaintiff was required to maintain life

insurance to secure the payment of alimony to defendant.

In his appeal, defendant raises the following points:

3 A-4321-14T2

POINT I

THE FINAL JUDGMENT OF DIVORCE RESTS ON

INSUFFICIENT CREDIBLE EVIDENCE IN THE TRIAL

RECORD AND INFRINGES CONTROLLING NEW JERSEY

LAW.

A. THE ALIMONY AND SUPPORT RULINGS.

B. THE EQUITABLE DISTRIBUTION RULING.

POINT II

THE FAMILY COURT ABUSED ITS DISCRETION IN

ORDERING DEFENDANT TO PAY HIS OWN COUNSEL

FEES.

II.

We defer to the trial judge's fact findings that are rooted

in her familiarity with the case, her opportunity to make

credibility judgments based on live testimony, and her expertise

in family matters. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

A trial court has broad discretion to determine alimony and

allocate marital assets subject to equitable distribution. Clark

v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012).

However, the trial court is also obliged to make necessary

findings of fact and state reasons for its conclusions, to enable

meaningful appellate review. Strahan v. Strahan, 402 N.J. Super.

298, 310 (App. Div. 2008); R. 1:7-4. We will vacate a trial

court's award if "the court clearly abused its discretion, failed

to consider all of the controlling legal principles, made mistaken

4 A-4321-14T2

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). We also are not bound by

the trial court's legal conclusions. N.J. Div. of Youth & Family

Servs. v. I.S., 202 N.J. 145, 183 (2010).

A.

Inasmuch as equitable distribution is a factor in determining

alimony, see N.J.S.A. 2A:34-23(b)(10), but alimony is not a factor

in determining equitable distribution, see N.J.S.A. 2A:34-23.1,

we begin by assessing the trial court's equitable distribution

rulings.

Defendant argues the trial judge committed several errors in

equitably distributing the parties' marital assets. Specifically,

defendant contends the trial court erred in distributing the

parties' Buenos Aires apartment and marital debt; and failed to

credit him for alleged exempt contributions to the Fidelity

account. We are unpersuaded.

"The goal of equitable distribution . . . is to effect a fair

and just division of marital assets." Steneken v. Steneken, 367

N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in

part, 183 N.J. 290 (2005). In equitably distributing marital

property, the trial court must engage in a three-prong analysis.

5 A-4321-14T2

Rothman v. Rothman, 65 N.J. 219, 232 (1974). First, the trial

court must determine what assets are subject to equitable

distribution. Ibid. Second, the trial court must determine the

value of these distributable assets. Ibid. Finally, the trial

court must consider "how such allocation can most equitably be

made." Ibid. Additionally, the trial court must consider the

statutory factors set forth in N.J.S.A. 2A:34-23.1. Sauro v.

Sauro, 425 N.J. Super. 555, 576 (App. Div. 2012), certif. denied,

213 N.J. 389 (2013). The manner of distribution remains within

the trial court's broad discretion. See Steneken, supra, 367 N.J.

Super. at 435.

"Generally speaking, in dividing marital assets the court

must take into account the liabilities as well as the assets of

the parties." Monte v. Monte, 212 N.J. Super. 557, 567 (App. Div.

1986). A trial court in a divorce matter has the authority to

allocate marital assets and debt between a husband and wife. See

Ionno v. Ionno, 148 N.J. Super. 259, 262 (App. Div. 1977) ("Proper

allocation of the responsibility for the debts as between husband

and wife does not necessarily track legal responsibility therefor

to a third party."). Additionally, marital debts may be deducted

from the total value of the marital estate. See Pascarella v.

Pascarella, 165 N.J. Super. 558, 563 (App. Div. 1979).

6 A-4321-14T2

We discern no merit in defendant's challenge to the court's

disposition of the parties' Buenos Aires apartment, where they

resided until 2005, before returning to the United States.

Defendant contends the trial court failed to consider the

property's value or the carrying costs associated with the sale

of the apartment. He also alleged there were impediments to the

sale of the apartment, including an ongoing dispute with

plaintiff's son from a different relationship, who allegedly

occupied the apartment for a time.

The trial court awarded defendant sixty-five percent of the

net proceeds of the sale of the apartment, as well as allocated

to him the responsibility to pay sixty-five percent of the carrying

costs until the sale. The court awarded defendant a larger

proportion of the net proceeds "in consideration of the limitation

of Plaintiff's alimony obligation . . . ."

Defendant shall not be heard to complain that the court lacked

sufficient evidence of the apartment's value, or its costs, to

reasonably and equitably distribute the asset. It was the parties'

obligation, not the court's, to present an appraised value of the

property. See Lavene v. Lavene, 148 N.J. Super. 267, 276 (App.

Div.) ("The parties, of course, have the primary obligation of

adducing those proofs which will enable the judge to make sound

and rational valuations."), certif. denied, 75 N.J. 28 (1977). In

7 A-4321-14T2

the absence of an appraisal or other competent evidence of value,

the court did the best it could.

We also shall not disturb the court's decision on the basis

of defendant's contention that plaintiff's son may interfere with

the sale. Although both parties testified about various judgments

or claims against defendant in Argentina, none were documented by

competent evidence that demonstrated a lien on the apartment or

any other impediment to the sale. In any event, the testimony at

trial was that the apartment was titled in the name of plaintiff's

brother, with the parties' consent. The brother agreed that the

property was beneficially owned by the parties and agreed to

cooperate in its sale. We find there was sufficient credible

evidence for the court's decision.

We also reject defendant's claim that he was entitled to a

credit for contributions to the Fidelity account that he claimed

were exempt from distribution. The parties used the Fidelity

account for various marital expenses. Defendant testified that

he contributed almost $43,000 to the Fidelity account, which he

said came from the sale of a painting, gifted to him by his

brother, and an inheritance. However, the trial court found both

parties commingled exempt funds into this account. Indeed, the

Fidelity account was initially funded with $200,000 from an

otherwise exempt gift to plaintiff from her family. Moreover, the

8 A-4321-14T2

evidence did not disclose any effort by defendant to segregate his

exempt funds or to preserve their separate character.

Defendant bore the burden to prove the basis for exempting

his property from the marital estate. Pascale v. Pascale, 140

N.J. 583, 609 (1995). A gift is subject to distribution if it

subsidizes the marital lifestyle or is placed into an account with

regular deposits of other non-exempt funds, unless the party

demonstrates an unequivocal intent to separate the exempt asset.

See ibid.; Tannen v. Tannen, 416 N.J. Super. 248, 283 (App. Div.

2010), aff'd o.b., 208 N.J. 409 (2011); Wadlow v. Wadlow, 200 N.J.

Super. 372, 380 (App. Div. 1985). We shall not disturb the court's

treatment of the Fidelity account as a marital asset.

Defendant also challenges the allocation of plaintiff's

credit card debt of $25,000, which she testified was incurred to

cover marital expenses. He contends the debt was incurred against

his advice, and the court disregarded his own significant debt.

The judge stated:

There is no justification to relieve

Defendant from liability for fifty percent

(50%) of the parties' marital debt. The

parties have historically used credit cards

to fund any shortfall in their monthly living

expenditures. It was Defendant who maintained

the parties' finances until a few short months

before the commencement of trial. Therefore,

it is disingenuous for Defendant to claim he

was unaware of the parties' financial

circumstances.

9 A-4321-14T2

Simply put, there was sufficient credible evidence, consisting of

plaintiff's testimony, that the credit card debt was attributable

to reasonable marital expenses. Defendant presented no competent

documentary evidence to establish the amounts were unreasonable,

or unrelated to marital expenses.

As for his claim that the judge disregarded his own

significant debt, we recognize that he reported, in his December

2014 case information statement, $7000 in his own credit card

debt, as well as an additional $13,000 owed to a bank. However,

the record before us does not illuminate when, and for what, that

debt was incurred. Notably, defendant introduced into evidence

an extensive summary of his debt, with multiple attachments.

Plaintiff, as well, introduced documentary evidence of defendant's

credit cards, because she made payments on the accounts. However,

since defendant omitted those exhibits from the appendix on appeal,

we find no reason to disturb the court's ruling on this issue.

See Cmty. Hosp. Grp., Inc. v. Blume Goldfaden, 381 N.J. Super.

119, 127 (App. Div. 2005) (We are not "obliged to attempt [to]

review . . . an issue when the relevant portions of the record are

not included."); R. 2:6-1(a) (stating appellant must include in

the appendix "such other parts of the record . . . as are essential

to the proper consideration of the issues").

10 A-4321-14T2

B.

Defendant next contends the trial court's alimony award was

insufficient, given his age and earning capacity. Specifically,

defendant argues the trial court "did not meaningfully weigh and

balance the [statutory] factors." We disagree.

The purpose of alimony is to "provide a dependent spouse with

the wherewithal to 'maintain a lifestyle that is reasonably

comparable to the standard of living enjoyed during the marriage.'"

Steneken, supra, 367 N.J. Super. at 434 (quoting Crews v. Crews,

164 N.J. 11, 17 (2000)). In making this determination, the court

should also consider the payor's earnings and ability to support

the payee. See Crews, supra, 164 N.J. at 27; Hughes v. Hughes,

311 N.J. Super. 15, 35 (App. Div. 1998) (noting that consideration

of the supporting spouse's current earnings is relevant in

determining whether he or she can support the dependent spouse to

the level enjoyed during marriage, or, in some circumstances, a

reduced level). "The court should state whether the support

authorized will enable each party to live a lifestyle 'reasonably

comparable' to the marital standard of living." Crews, supra, 164

N.J. at 26.

Additionally, the trial court must make specific findings,

considering the fourteen factors outlined under N.J.S.A. 2A:34-

23(b). These factors include:

11 A-4321-14T2

(1) The actual need and ability of the

parties to pay;

(2) The duration of the marriage or civil

union;

(3) The age, physical and emotional health

of the parties;

(4) The standard of living established in the

marriage or civil union and the likelihood

that each party can maintain a reasonably

comparable standard of living, with neither

party having a greater entitlement to that

standard of living than the other;

(5) The earning capacities, educational

levels, vocational skills, and employability

of the parties;

(6) The length of absence from the job market

of the party seeking maintenance;

(7) The parental responsibilities for the

children;

(8) The time and expense necessary to acquire

sufficient education or training to enable the

party seeking maintenance to find appropriate

employment, the availability of the training

and employment, and the opportunity for future

acquisitions of capital assets and income;

(9) The history of the financial or non-

financial contributions to the marriage or

civil union by each party including

contributions to the care and education of the

children and interruption of personal careers

or educational opportunities;

(10) The equitable distribution of property

ordered and any payouts on equitable

distribution, directly or indirectly, out of

current income, to the extent this

consideration is reasonable, just and fair;

12 A-4321-14T2

(11) The income available to either party

through investment of any assets held by that

party;

(12) The tax treatment and consequences to

both parties of any alimony award, including

the designation of all or a portion of the

payment as a non-taxable payment;

(13) The nature, amount, and length of

pendente lite support paid, if any; and

(14) Any other factors which the court may

deem relevant.

[N.J.S.A. 2A:34-23(b).]

For most of their marriage, the parties lived a modest,

middle-class life. From 1990 to 2005, the parties resided in

Argentina, living in aparthotels and rental properties, before

purchasing the apartment in Buenos Aires in 2000. While in

Argentina, defendant invested in a bicycle business, which

dissolved less than a year later. The parties soon thereafter

opened a private language school, with plaintiff responsible for

teaching and developing the curriculum, and defendant handling the

marketing and finances. However, the parties later returned to

New Jersey in 2005, during the financial crisis in Argentina.

After returning to New Jersey, plaintiff served as the primary

breadwinner for the family. At the time of trial, she was employed

by a public school district, earning a stipulated gross annual

income of $92,419. In addition to working full-time, she was

13 A-4321-14T2

pursuing a doctoral degree in education (Ed.D.). To support her

own educational endeavors, she had borrowed $61,000 in

unsubsidized student loans.

Defendant, on the other hand, has not experienced the same

success since returning to the United States. For a time, he

earned modest commissions as a life insurance agent, but that

source of income dried up. At the time of trial, he was almost

eighty years old, retired, and collecting approximately $13,000

in annual Social Security benefits.1

In determining plaintiff's alimony obligation, the trial

court examined each of the statutory factors outlined in N.J.S.A.

2A:34-23(b). Although defendant challenges the court's findings

as to several of these factors, we are satisfied, based on our

thorough review of the record, that the court's findings were

supported by "adequate, substantial, credible evidence." Cesare,

supra, 154 N.J. at 412.

After considering each factor, the court set plaintiff's open

durational alimony obligation at a fixed amount of $27,500 per

year. Notably, in determining plaintiff's alimony obligation, the

1

Defendant's newly minted claim, in his appellate brief, that his

benefits are actually $11,616 lacks any support in the record and

is at odds with defendant's own CIS and trial testimony.

14 A-4321-14T2

trial court considered both party's individual budgets and

combined net incomes:

Plaintiff earns gross wages of $92,419.00

and Defendant social security wages of

$13,000.00. These sum nets cannot cover

either of the parties' budgets, let alone both

of their budgets. The point being, that even

while together, their funds were insufficient

to meet their living expenses; hence the

$25,000 in credit card debt used to supplement

living expenses.

. . . .

The Court clearly recognizes that

Plaintiff, upon conference of her doctoral

degree, has the potential to increase her

earnings and can only surmise that it is the

eventuality of the situation. However, that

situation does not exist today and the Court

cannot determine an alimony award based upon

predictions of future earnings, which may

never materialize. Plaintiff's current income

must be used and that income is $92,419.00.

The Court further recognizes that

Defendant is at a distinct age disadvantage

and is entitled to retire at age eighty (80),

albeit a healthy 80. Therefore, the

likelihood of any appreciable increase over

and above his social security earning is

negligible.

. . . .

The fact is that neither party will be

able to maintain the formal marital lifestyle.

Using Plaintiff's current budget of $8,274.00

and Defendant's current budget of $5,294.00,

the Court finds that Plaintiff shall pay to

Defendant open durational alimony of

$27,500.00 per year.

15 A-4321-14T2

Defendant misplaces reliance on Guglielmo v. Guglielmo, 253

N.J. Super. 531, 543-44 (App. Div. 1992), in support of his

contention that the trial court failed to consider plaintiff's

earning potential in awarding alimony. In Guglielmo, we explained:

Where a family's expenditures and income had

been consistently expanding, the dependent

spouse should not be confined to the precise

lifestyle enjoyed during the parties' last

year together. Defendant's income picture

should be viewed with an eye toward the

future, since it was to this potential that

both parties contributed during the marriage.

[Ibid.]

Here, the record fails to demonstrate that plaintiff's income

has been consistently expanding. Plaintiff testified to nothing

more than her hope that acquiring a doctorate would boost her

income. There was no evidence suggesting that she would

automatically qualify for a promotion or raise. As such, we

discern no error in the court's decision to utilize plaintiff's

current income in determining her alimony obligation.

Additionally, should plaintiff experience a significant increase

in pay after receiving her Ed.D., defendant can seek a modification

of alimony based on changed circumstances. See Lepis v. Lepis,

83 N.J. 139, 146 (1980) (stating that alimony obligations are

"always subject to review and modification on a showing of 'changed

circumstances.'"); see also Quinn v. Quinn, 225 N.J. 34, 49 (2016)

16 A-4321-14T2

(stating "changed circumstances include . . . an increase or

decrease in the income of the supporting . . . spouse") (internal

quotation marks and citation omitted)).

Defendant's remaining challenges to the alimony award lack

sufficient merit to warrant an extended discussion. R. 2:11-

3(e)(1)(E). We add that defendant's reliance on marital fault is

misdirected, as marital fault is generally irrelevant and the

record is bereft of any evidence establishing exceptional fault

of the kind sufficient to impact alimony. See Mani v. Mani, 183

N.J. 70, 91-92 (2005); Clark, supra, 429 N.J. Super. at 74.

Defendant also objects to the provision in the judgment that

alimony would be subject to suspension or termination if he

cohabits with an unrelated female; however, the provision simply

complies with N.J.S.A. 2A:34-23(n).

C.

Defendant next contends the trial court erred in obligating

him to pay fifty percent of the debt already incurred by plaintiff

to finance their child's college education, and forty percent of

future educational costs. Defendant contended he lacked the

ability to pay. He also argued that he opposed plaintiff's and

his child's choice of an out-of-state private university; instead,

he favored his child's attendance at City University of New York,

17 A-4321-14T2

where the child could have lived at home and, he argued, reduced

total educational costs.

Although attending an out-of-state private university, the

child received substantial scholarships that covered all but

$22,000 of freshman year expenses, and $12,000 of sophomore year

expenses. Plaintiff borrowed $34,000 to cover the remaining costs.

She anticipated utilizing a college savings fund for junior year

shortfalls and borrowing again to finance senior year expenses.

Payments on the loans were deferred.

Plaintiff also testified that the parties' child had a work-

study job, which generated income used to cover incidental

expenses. She also stated that the child remained out-of-state

the previous summer, having secured a paid summer internship.

However, she did not provide detailed evidence of the costs of

supporting the child, outside the college expenses.

In allocating half of the $34,000 debt, the court stated:

The Court further finds that the

Defendant shall share equally in the payment

of [the child's] school loans incurred to

date. [The child], through scholarships, has

been able to reduce the actual out of pocket

costs for [the] education to a level

commensurate with or actually less than the

cost of a state university. That fact,

coupled with the importance placed upon

continuing education by the parties, both of

whom hold Masters Degrees and one of whom

. . . continues to pursue a doctoral degree

at age fifty-seven (57) makes clear that if

18 A-4321-14T2

they had remained an intact family, they would

have done everything possible to fund these

costs on [the child's] behalf.

In allocating forty percent of senior year costs, the court stated

Certain college accounts have been set

aside for [the child]. The accounts have an

approximate value of $15,000.00. This amount

is anticipated to be sufficient to cover out-

of-pocket expenses for [the child's] junior

year . . . . [S]enior year expenses, based

upon historical out-of-pocket expenses, are

expected to be approximately $22,000.00,

provided [the child] receives scholarships at

a similar level to those received in . . .

freshman and sophomore years. The parties

shall share in [the child's] remaining college

expenses, with Plaintiff funding sixty percent

(60%) and the Defendant forty percent

(40%). . . . Plaintiff shall retain the

$10,754.50 remaining in the Fidelity

Investments account in full satisfaction of

Defendant's forty percent (40%) contribution

to [the child's] senior year expenses.

Trial courts have substantial discretion in determining

parents' contribution to college expenses. See Jacoby v. Jacoby,

427 N.J. Super. 109, 116 (App. Div. 2012); see also Foust v.

Glaser, 340 N.J. Super. 312, 315 (App. Div. 2001). However, a

trial court's decision will be reversed "if the court ignores

applicable standards[.]" Gotlib v. Gotlib, 399 N.J. Super. 295,

309 (App. Div. 2008).

In Newburgh v. Arrigo, 88 N.J. 529, 545 (1982), the Court set

forth a list of twelve factors for courts to consider when

19 A-4321-14T2

determining a parent's contribution for a child's educational

expenses:

(1) whether the parent, if still living with

the child, would have contributed toward the

costs of the requested higher education; (2)

the effect of the background, values and goals

of the parent on the reasonableness of the

expectation of the child for higher education;

(3) the amount of the contribution sought by

the child for the cost of higher education;

(4) the ability of the parent to pay that cost;

(5) the relationship of the requested

contribution to the kind of school or course

of study sought by the child; (6) the

financial resources of both parents; (7) the

commitment to and aptitude of the child for

the requested education; (8) the financial

resources of the child, including assets owned

individually or held in custodianship or

trust; (9) the ability of the child to earn

income during the school year or on vacation;

(10) the availability of financial aid in the

form of college grants and loans; (11) the

child's relationship to the paying parent,

including mutual affection and shared goals

as well as responsiveness to parental advice

and guidance; and (12) the relationship of the

education requested to any prior training and

to the overall long-range goals of the child.

[Ibid.]

The Legislature thereafter codified factors to consider when

evaluating a claim for contribution, including college expenses.

See Gotlib, supra, 399 N.J. Super. at 309 (citing N.J.S.A. 2A:34-

23(a)). Consequently, in determining a parent's college

contribution obligation, "a trial court should balance the

statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh

20 A-4321-14T2

factors, as well as any other relevant circumstances, to reach a

fair and just decision . . . ." Gac v. Gac, 186 N.J. 535, 543

(2006).

Here, the trial court failed to address either the Newburgh

or the statutory factors under N.J.S.A. 2A:34-23(a). In

particular, the court treated the incurred college debt as a

liability subject to equitable distribution, like any other

marital debt. This was mistaken, as the college expenses — whether

prospective or incurred — should have been analyzed within the

Newburgh-Gac framework.

Therefore, we are constrained to remand this portion of the

judgment, for the trial court to make further findings consistent

with Newburgh, Gac, and N.J.S.A. 2A:34-23(a). See Raynor v.

Raynor, 319 N.J. Super. 591, 617 (App. Div. 1999) (reversing a

trial court's college contribution obligation, where the trial

court failed to consider the factors listed in Newburgh or the

parties' financial circumstances.). We express no opinion as to

whether this analysis should yield a different result. However,

we note that the court did not explicitly consider the child's

earning ability, and capacity to bear responsibility for some of

the borrowing. Notably, he is pursuing a degree in a field that

has a positive job outlook.

21 A-4321-14T2

D.

Defendant also argues the trial court erred in failing to

direct plaintiff to maintain life insurance for his benefit, as

security for the payment of alimony. N.J.S.A. 2A:34-25 expressly

provides trial courts with the authority to order "either spouse

or partner to maintain life insurance for the protection of the

former spouse, partner, or the children of the marriage or civil

union in the event of the payer spouse's or partner's death." See

Jacobitti v. Jacobitti, 135 N.J. 571, 580 (1994); Claffey v.

Claffey, 360 N.J. Super. 240, 262-63 (App. Div. 2003). Here,

defendant requested the court to direct plaintiff to name him as

a beneficiary to plaintiff's three life insurance policies.2

The trial court did not expressly address the issue of

plaintiff securing her payment of alimony with life insurance.

Rather, the judgment of divorce only addressed whether to require

defendant to obtain insurance on his life, which the court

ultimately rejected because of his age. As the trial court failed

to consider plaintiff's maintenance of life insurance for

defendant's benefit, we are constrained to remand this issue for

2

At trial, defendant testified that plaintiff's policies include

a workplace life insurance policy worth "three times her yearly

salary," a AAA life insurance policy worth "100,000 or 200,000,"

and an AXA life insurance policy worth "about 200,000." He

proposed that he be named a fifty-percent beneficiary on all these

policies.

22 A-4321-14T2

further consideration. We leave it to the court's discretion to

determine whether to direct plaintiff to maintain life insurance,

and if so, the amount to be secured.

E.

Lastly, we address defendant's argument that the trial judge

abused her discretion in ordering him to pay his own counsel fees.

He claims plaintiff is in a superior financial position and he has

limited resources to afford these fees. We find this argument

without merit. Trial courts have the authority to award counsel

fees in a family law action under N.J.S.A. 2A:34-23 and Rule 5:3-

5(c). "[T]he award of counsel fees in a matrimonial action is

discretionary with the trial court and an exercise thereof will

not be disturbed in an absence of a showing of abuse." Chestone

v. Chestone, 322 N.J. Super. 250, 258 (App. Div. 1999).

In her written decision, the judge examined the nine factors

set forth in Rule 5:3-5(c) and made specific findings as to each.

Notably, in considering "the ability of the parties to pay their

own fees or to contribute to the fees of the other party," Rule

5:3-5(c)(2), the trial court held:

In the instant matter, it appears that neither

of the parties have significant liquid capital

assets from which to satisfy their own counsel

fees. The sum remaining in the Fidelity

investments Account has been allocated to the

payment of debt, but remains a resource for

Plaintiff. Otherwise, Plaintiff would be

23 A-4321-14T2

required to again borrow against her pension,

having already taken a debt consolidation

loan.

Defendant has no liquidity.

Given our deferential standard of review and the trial court's

thorough consideration of the necessary factors outlined under

Rule 5:3-5(c), we find no reason to interfere with the trial

court's decision and affirm its denial of attorney's fees.

F.

In conclusion, we affirm the court's judgment as it pertains

to alimony, equitable distribution, and counsel fees; and remand

for further consideration the issues of college expenses and life

insurance.

Affirmed in part and remanded in part. We do not retain

jurisdiction.

24 A-4321-14T2