LARISSA TROFIMOVA VS. IGOR TROFIMOV (FM-14-1538-14, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-0454-16T1

LARISSA TROFIMOVA,

Plaintiff-Respondent,

v.

IGOR TROFIMOV,

Defendant-Appellant.

Submitted March 7, 2018 – Decided July 12, 2018

Before Judges Alvarez and Nugent.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FM-14-1538-14.

Ianoldi & Edens, LLC, attorneys for appellant

(Ann M. Edens, of counsel and on the brief;

Daniel R. Kraft, on the briefs).

Ceconi & Cheifetz, LLC, attorneys for

respondent (Kimberly A. Rennie, of counsel;

Lindsay A. Heller, on the brief).

PER CURIAM

Defendant Igor Trofimov and plaintiff Larissa Trofimova were

divorced on September 19, 2016, by way of a final dual judgment.

Defendant appeals virtually every financial aspect of the order.

After our review of the record, the arguments on appeal, and the

relevant precedents, we affirm in part, reverse and vacate in

part, and remand.

The parties married on October 24, 1981, and have one

emancipated child. Plaintiff has a Master's Degree in Mathematics

and Computer Science and is fully employed. However, the trial

judge found she deferred the development of her own career when

the couple relocated to advance defendant's career, first from

Russia to Germany, and then to the United States. Defendant is,

by his own account, a renowned scientist who "has advanced the

science in his field."

In 2012, the same year the parties separated, they entered

into a separation agreement. Plaintiff filed a motion to enforce,

which resulted in the court issuing two pendente lite orders on

January 30, 2015. These orders enforced the separation agreement

in which defendant assumed certain expenses, such as the cost of

maintaining the marital home until sale. Defendant was ordered

to pay outstanding payments to plaintiff of his health and car

insurance.

In March 2015, the parties participated in a mediation

session, during which defendant paid $10,000 towards arrears and

reimbursements on the January 30, 2015 order. Thereafter, on July

1, 2015, the parties entered into a consent order for pendente

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lite support totaling $1832 per month, payable through probation.

Defendant agreed to produce outstanding discovery to forensic

accountants, who had been retained to provide expert reports for

both parties, and provide a personal property list. Defendant did

neither.

During the marriage, the parties acquired interests in

various companies, pension and retirement plans, and other assets.

Plaintiff has a 401(k) through her employer with a balance in

excess of $212,000 and a separate IRA. Defendant only acknowledged

one IRA, despite listing two on his February 2011 Case Information

Statement (CIS). Defendant was not specific as to the amount in

the one IRA he acknowledged.

Defendant's share in a company he created with four friends,

known as Akela Laser Corporation (Akela), was one of the assets

subject to equitable distribution. Defendant is the Chief

Technology Officer and owns a 28.57% ownership interest in the

company; it is his main source of income. Plaintiff also initially

held an interest in the company, but sold her shares for $6000 and

deposited the proceeds into the parties' joint checking account.

At trial, the court-appointed expert testified the fair market

value of defendant's interest in Akela was $214,000.

Plaintiff owns Princeton Technology Advisers Company (PTAC).

At trial, defendant testified plaintiff could retain PTAC

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entirely. The court-appointed expert assessed PTAC's value at

$133,000.

In his August 31, 2016 post-trial findings of fact, the trial

judge concluded plaintiff was credible and defendant was not. He

found defendant incredible based on his demeanor and responses

while testifying, and his lack of compliance with prior court

orders. The judge described defendant as "cagey rather than

forthcoming," and cited as an example defendant's reluctance to

even disclose where he was living——New Jersey or California.

Additionally, defendant "stonewalled the production of documents

for examination by the accounting experts."

As the judge observed, defendant claimed he signed the

separation agreement, "only under duress and without reading it."

The judge disbelieved this, given defendant's level of education,

and the fact he was "used to reviewing contracts and grants."

Defendant raises the following points on appeal:

POINT ONE

THE LOWER COURT ERRED WHEN IT FAILED TO

REFERENCE, ANALYZE OR CONSIDER N.J.S.A. 2A:34-

23.1 FACTORS IN SUPPORT OF ITS AWARD OF

EQUITABLE DISTRIBUTION FOR THE BUSINESSES,

RETIREMENT ASSETS AND BANK ACCOUNTS (Absent

from Dal-Da20).1

A. MARITAL BUSINESSES

1

Defendant failed to cite specific parts of the record in his

point headings, as required by Rule 2:6-2(a)(6). Instead,

defendant repeatedly notes "Absent from Dal-Da20."

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B. MARITAL FINANCIAL BANK ACCOUNTS

C. RETIREMENT ACCOUNTS ACQUIRED DURING

THE MARRIAGE

POINT TWO

THE LOWER COURT ERRED WHEN IT FAILED TO STATE

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THROUGHOUT THE FINAL DUAL JUDGMENT OF DIVORCE

(Absent from Dal-Da20).

A. THE COURT ERRED WHEN IT ORDERED

ESCROW OF PROCEEDS FROM THE SALE OF THE

PARTIES' FORMER MARITAL HOME

B. THE COURT ERRED WHEN IT ORDERED

PTAC, AN ASSET FORMED DURING THE

MARRIAGE, EXEMP[T] FROM EQUITABLE

DISTRIBUTION

C. THE LOWER COURT ERRED WHEN IT DENIED

CREDIT OF MONIES [PLAINTIFF] SQUANDERED

POST-SEPARATION

D. THE LOWER COURT ERRED WHEN IT DENIED

CREDIT OF MONIES [DEFENDANT] PAID

PENDENTE LITE

POINT THREE

THE LOWER COURT ERRED WHEN IT FAILED TO STATE

FINDINGS OF FACT, CONCLUSIONS OF LAW AND THE

ISSUES ABSENT FROM THE RECORD OR ADDRESSED IN

THE COURT'S OPINION LETTER (Absent from Dal-

Da20).

A. THE LOWER COURT ERRED WHEN IT

ORDERED [DEFENDANT] TO MAINTAIN A LIFE

INSURANCE POLICY FOR SIX (6) YEARS

B. THE LOWER COURT ERRED WHEN IT

ORDERED [DEFENDANT] TO PAY HIS SHARE OF

EQUITABLE DISTRIBUTION BY WAY OF THE

PROBATION DEPARTMENT OF THE FAMILY

DIVISION

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C. THE LOWER COURT ERRED WHEN IT

ORDERED [DEFENDANT] TO PAY 4% INTEREST

RATE ON THE OUTSTANDING MONIES OWED ON

THE EQUITABLE DISTRIBUTION AWARD

D. THE LOWER COURT ERRED WHEN IT

ORDERED [DEFENDANT] TO RELEASE

LITIGATION DOCUMENTATION POST-DIVORCE

POINT FOUR

THE LOWER COURT ERRED WHEN IT FAILED TO

REFERENCE, ANALYZE OR CONSIDER NEW JERSEY

FACTORS IN SUPPORT OF ITS COUNSEL FEE AWARD

(Absent from Dal-Da20).

I.

Appellate review of a trial court's decision is limited, as

"findings by the trial court are binding on appeal when supported

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

154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v.

Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). "[M]atrimonial courts

possess special expertise in the field of domestic relations.

. . . Because of the family courts' special jurisdiction and

expertise in family matters, appellate courts should accord

deference to family court factfinding." Id. at 412-13.

"Only when the trial court's conclusions are so 'clearly

mistaken' or 'wide of the mark' should an appellate court intervene

and make its own findings to ensure that there is not a denial of

justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.

88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. G.L.,

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191 N.J. 596, 605 (2007)). Deference is extended to the family

court's factual findings because of its ability to make first-hand

credibility judgments. Ibid. "However, a judge's legal

conclusions are subject to our plenary review." Milne v.

Goldenberg, 428 N.J. Super. 184, 197-98 (App. Div. 2012) (citations

omitted).

The trial court has the discretion to allocate marital assets

to the parties in matters of equitable distribution. La Sala v.

La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000) (citing Borodinsky

v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978);

Jacobitti v. Jacobitti, 263 N.J. Super. 608, 613 (App. Div. 1993).

On appeal, these decisions are reviewed, "to determine whether the

court has abused its discretion." La Sala, 335 N.J. Super. at 6.

"An abuse of discretion 'arises when a decision is "made without

a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis."'" Milne, 428 N.J.

Super. at 197 (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J.

561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration &

Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

We affirm equitable distribution awards "as long as the trial

court could reasonably have reached its result from the evidence

presented, and the award is not distorted by legal or factual

mistake." La Sala, 335 N.J. Super. at 6 (citing Perkins v.

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Perkins, 159 N.J. Super. 243, 247-48 (App. Div. 1978)). The award

will be affirmed even if we would not have made the same ruling

as the trial court. Perkins, 159 N.J. Super. at 247-48. "Reversal

is warranted only when a trial court's findings reflect a mistake

must have been made because the factual findings are 'so manifestly

unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of

justice.'" Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div.

2012) (quoting Rova Farms Resort, Inc., 65 N.J. at 484 (quotation

omitted)).

N.J.S.A. 2A:34-23.1 specifies the factors that a court should

consider when determining equitable distribution of marital

assets. These include the duration of the marriage, the

contribution each party made to the acquisition of assets, the

standard of living, and the economic circumstances of each party

at the time of the division of property. N.J.S.A. 2A:34-23.1(a),

(c), (d), and (f). The statute requires judges to make findings

of fact on the evidence relevant to the issues being decided.

N.J.S.A. 2A:34-23.1 We do not agree the judge did not make

adequate factual findings; he made such findings as to each asset.

The court must first identify the property eligible for

distribution, determine the value of those assets, and then decide

the manner in which equitable allocation should be made. Rothman

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v. Rothman, 65 N.J. 219, 232 (1974). Each case must be examined

on its own merits and facts.

II.

Defendant first challenges the trial court's equitable

distribution of the parties' businesses, retirement assets, and

bank accounts. The judge gave great weight to the thirty-three

year length of the marriage. He acknowledged the parties' moves

from Russia to Germany, and then to the United States——made to

advance defendant's career——delayed the development of plaintiff's

career. The judge's reliance on these factors is based on well-

established precedent and demonstrates one example of the explicit

fact-finding in which he engaged.

In rendering his valuation of the parties' interest in their

respective companies, the judge relied upon the opinion of a court-

appointed accounting expert. With regard to PTAC, the judge found

plaintiff was the sole owner of that $133,000 asset. The judge

fixed plaintiff's share of Akela at forty percent of defendant's

equity, or $85,600. We find no basis to disturb the judge's

decisions with regard to these assets. In making such decisions,

judges may rely on expert opinions at their discretion. See Carey

v. Lovett, 132 N.J. 44, 64 (1993) (applying that principle to

malpractice cases); see also Brown v. Brown, 348 N.J. Super. 466,

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478 (App. Div. 2002) (applying that principle to expert testimony

on valuation issues).

Review of equitable distribution is subject to abuse of

discretion, and none has been demonstrated here. The judge's

decisions are not "inexplicably departed from established

policies, or rest[ing] on an impermissible basis." Milne, 428

N.J. Super. at 197 (quoting Flagg, 171 N.J. at 571 (quotation

omitted)). The challenge to the equitable distribution of the

marital estate lacks merit.

Defendant also asserts he should have received a share of

PTAC. In his trial testimony, however, defendant acknowledged

plaintiff owned the company and said "[t]hat's her company,

whatever she wants to do with it." Defendant had stopped working

for the company years prior and did "not have time to work there."

Defendant denied having an interest in PTAC when asked directly

by the court. When asked if he wanted to be compensated through

equitable distribution for his share, defendant responded

"whatever they assessed the value, that's hers." Under these

circumstances——where defendant explicitly abdicated any interest

in PTAC——allocation of ownership solely to plaintiff was not an

abuse of discretion.

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III.

Defendant contends the judge erred when he ordered

defendant's share of the proceeds from the sale of the marital

home be held in escrow pending his satisfaction of equitable

distribution and counsel fee obligations. It is obvious the judge

did so based on defendant's unjustified failure to comply with

prior orders and to respond fully and truthfully in the discovery

process and trial of the matter. Since defendant had seemingly

relocated to another state or intended to do so, the creation of

a fund with which to make equitable distribution payments seems

an exercise in ordinary prudence. It was not an abuse of

discretion. Again, defendant refused to identify even his current

state of residence or disclose plans to relocate. Perhaps if

defendant had not repeatedly avoided giving such basic

information, these measures would not have been necessary.

IV.

Defendant wanted to be credited $50,000 for funds plaintiff

removed from the parties' joint bank account post-separation, and

reimbursement for all pendente lite payments made to plaintiff

pursuant to Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995).

In this regard, the judge stated:

There is no question that [plaintiff] used

joint funds to maintain the household after

[defendant] left in October 2012. She

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submitted a spreadsheet setting forth her

disposition of the money from the joint

account for joint housing expenses. It also

appears that [defendant] used money from the

joint account for his own personal expenses.

While [defendant] should receive some credit

for [plaintiff]'s use of funds from the joint

account, . . . any credit is washed away by

his failure to pay joint expenses or payments

pursuant to the Separation Agreement and Court

Order.

Based on these findings, the judge properly denied defendant's

request for reimbursement of the pendente lite support payments

made.

The court allocated the proceeds from the sale of the home

equally, which supports the pendente lite award requiring

defendant to pay half of the Schedule A "shelter" expenses.

Importantly, the court based the pendente lite order on the

parties' own separation agreement, where defendant explicitly

agreed to pay half of the expenses for the house. Defendant

acknowledges this agreement, but claims since plaintiff was not

awarded alimony, and the contract is silent as to a refund, he is

entitled to reimbursement under Mallamo.

It is true "pendente lite support orders are subject to

modification prior to entry of final judgment and at the time of

entry of final judgment." Mallamo, 280 N.J. Super. at 12

(citations omitted). However, the fact that the court did not

ultimately award alimony does not alone require a refund of

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pendente lite support paid. The pendente lite payments in this

case were not alimony. The payments represented only fifty percent

of plaintiff's Schedule A "shelter" expenses for the former marital

residence which defendant agreed to pay in the separation

agreement.

V.

Defendant makes a number of related arguments challenging the

mechanisms chosen by the trial judge to enforce equitable

distribution. The court's order that equitable distribution

payments be made through the probation department was mistaken.

The probation department has authority over matters involving only

"alimony, maintenance or child support." See R. 5:4-7.

We are uncertain as to the manner in which the language

requiring defendant to maintain life insurance equivalent to the

unpaid balance of equitable distribution was included in the final

judgment of divorce. It is possible plaintiff's attorney added

that clause without any objection being made by defendant's

counsel. The judge then signed the final judgment as submitted

without comment. We are unable to find any indication in the

record that the provision was required by the judge, as opposed

to simply being an add-on by counsel to guarantee payment. We

leave resolution of that question to counsel.

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If the court did in fact order the maintenance of life

insurance in order to ensure payment, the language can remain.

See generally Claffey v. Claffey, 360 N.J. Super. 240 (App. Div.

2003). If the paragraph was included solely at plaintiff's

counsel's initiative, albeit without objection by opposing

counsel, it must be deleted from the final judgment and defendant

is thus relieved of that obligation.

The court ordered interest imposed on an annual basis if

defendant decided to pay the minimum of $1800 a month by way of

equitable distribution, as opposed to a lump sum satisfaction of

the decree. The court did not abuse its discretion in doing so.

The judge's comments regarding defendant's evasiveness, lack of

cooperation with the discovery process, and lack of credibility

adequately inform his decision to impose interest. See Heinl v.

Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (requiring

specified, articulate findings of fact and conclusions of law in

court's decision, not naked conclusions).

VI.

Defendant challenges the judge's order that he provide

plaintiff with the financial information and documentation

regarding PTAC for the 2016 tax year so she can file her 2016

income tax return. At that time, only defendant was employed by

the company and had access to the company's records.

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Defendant's delay in supplying the necessary documents meant

plaintiff was unable to file her return. The nature of the

documentation is clearly spelled out. This argument requires no

further discussion in a written opinion.

VII.

Defendant objects to the court's imposition of a counsel fee

obligation. The judge made a forty percent across-the-board award,

resulting in a $31,488.10 obligation. Although the judge did not

specify the factors he considered pursuant to Rule 5:3-5(c), the

discussion throughout the opinion made clear he had those very

factors in mind. The court's obligation is to consider the

factors, not mechanically reiterate them. R. 5:3-5(c).

The judge did find the requested fees to be "fair and

reasonable," and that much work was required due to the

"recalcitrance of [defendant]." Plaintiff faced substantial

difficulties in attempting to enforce the separation agreement,

enforce subsequent court orders, and prepare for the final hearing.

A forty percent award was therefore appropriate.

An award of counsel fees rests in the discretion of the court.

Williams v. Williams, 59 N.J. 229, 233 (1971). The court must

consider the factors established under N.J.S.A. 2A:34-23, Rule

5:3-5(c), Rule 4:42-9, and RPC 1.5(a). We find that the judge's

decision was adequately informed by those factors.

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Affirmed in part, but reversed as to the requirement that

equitable distribution payments be made through the probation

department. The life insurance question must be resolved by

counsel, and if no agreement is reached on the point, it should

be submitted to the trial judge for disposition.

Affirmed in part, reversed and vacated in part, and remanded.

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