                                NOT FOR PUBLICATION WITHOUT THE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-5563-17T3

ROBERT M. FARULLA,

          Plaintiff-Appellant,

v.

SUZANNE FARULLA,

     Defendant-Respondent.
__________________________

                   Submitted April 9, 2019 – Decided June 18, 2019

                   Before Judges Fisher and Suter.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Family Part, Passaic County,
                   Docket No. FM-16-1577-14.

                   November & Nunnink, LLC, attorneys for appellant
                   (Laura A. Nunnink, on the brief).

                   Michael J. Pasquale, attorney for respondent.

PER CURIAM

          Plaintiff Robert M. Farulla appeals two portions of the Dual Final

Judgment of Divorce (DFJOD): the trial court's order that awarded defendant
Suzanne Farulla sixty percent of the marital portion of plaintiff's pension and

that denied plaintiff any credit for the value of defendant's eleven-year-old

vehicle. Because there was no abuse of discretion by the trial court, we affirm

the DFJOD.

                                         I

      Five months after plaintiff retired, he filed for divorce from defendant,

citing irreconcilable differences. They were married for seventeen years and

had two children. The parties resolved custody and parenting time issues prior

to trial, defendant obtained full-time employment, and they agreed that alimony

was no longer an issue in the case. Other issues, including equitable distribution,

were not resolved. Following a six-day bench trial—where only the parties were

witnesses—the trial court decided the remaining issues in an oral decision that

was memorialized in the DFJOD.

      Plaintiff was employed by the Bergen County Sheriff's Department before

the parties married.    He continued employment there during the marriage,

earning over $100,000 annually until he retired in 2013 at age forty-four from

the Police and Fireman's Retirement System. The parties purchased the last two

years of creditable service in 2012 by using the proceeds from a $20,000 home




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                                        2
equity loan. After his retirement, plaintiff obtained employment at Home Depot

earning $36,400 annually.

      Defendant was a mammography technician working full time, earning

$49,920 per year. During most of the marriage, she worked part-time, earning

considerably less.

      The parties agreed that the marital portion of plaintiff's pension was 72.99

percent. By allocating sixty percent of the marital portion to defendant rather

than fifty percent, defendant received $490.05 more per month and plaintiff

sustained an equivalent reduction.

      The trial court evaluated each of the factors in N.J.S.A. 2A:34-23.1 in

allocating the pension.     The court found that the parties were married for

seventeen years. They both were forty-nine years old and had certain chronic

medical conditions. "Neither party brought significant income or property to

the marriage." They maintained a middle class standard of living during the

marriage. The parties did not have a property settlement agreement. During the

marriage, defendant was the primary caretaker for the children and worked part-

time, earning less than $16,000 annually. She was laid off in 2016 but found

full-time employment before trial, earning $49,920. Plaintiff earned between

$100,000 and $120,000 as a detective before his retirement; afterwards, he


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                                        3
earned $36,400 at Home Depot. His salary had increased only $1000 during his

four years of employment there.

      The court noted that defendant initially was a candidate for alimony based

on the significant disparity in their incomes and because defendant had been

financially dependent on plaintiff throughout the marriage. However, because

of her employment, the parties agreed that alimony was no longer an issue. The

court found that defendant would "undoubtedly have trouble covering all of her

[and the children's] expenses" based on her earnings. She also had to pay for

her medical insurance. She had no access to credit because she had filed a

Chapter Seven bankruptcy in 2017. The court found that defendant would be

depending on the pension for her shelter, transportation and personal expenses.

      The court found that plaintiff's economic circumstances were better than

defendant's. He had stable employment and a pension. He owned stock, had

inherited commercial property and was purchasing stock options. The court

concluded that plaintiff was "voluntarily underemployed" given his work

history, qualifications, and current income.   There were other jobs with an

average salary that was higher than what he was earning based on the New Jersey

Department of Labor and Workforce Development occupational employment

statistics. The court found he was reluctant to seek a higher paying job.


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                                       4
      The marital home was sold and the proceeds were distributed prior to trial.

The court found that repayment of the home equity loan benefited plaintiff and

reduced defendant's share of the proceeds. The parties would each pay taxes on

their share of the pension.

      In considering the appropriate allocation for their marital property, the

court considered that defendant needed to maintain a residence for the children

as the parent of primary residence. She had no access to credit because of her

bankruptcy while plaintiff had no significant debts. Her employment would not

be adequate to pay all the expenses. Taking all of this into consideration, the

court allocated the marital portion of the pension sixty percent to defendant and

forty percent to plaintiff to "bring the parties closer in line financially."

      Plaintiff requested a credit for fifty percent of the value of defendant's

vehicle. He submitted a Kelley Blue Book estimate that showed defendant's

2008 Lincoln Navigator was worth $15,725 if sold to a third party. In denying

this credit, the court noted that Kelley Blue Book is "considered useful, reliable

and admissible to prove the value of used vehicles." However, plaintiff did not

sustain his burden of establishing the value of the vehicle for purposes of

equitable distribution because there was evidence about significant recent repair




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                                          5
bills and defendant's bankruptcy filing showed a much lower "trade-in" value

and different mileage.

      On appeal, plaintiff contends the trial court erred in awarding defendant

sixty percent of the marital portion of the pension. He contends this should have

been divided equally between the parties. He also argues that the court erred by

denying him any credit for the value of defendant's 2008 Lincoln Navigator.

                                     II

      We accord "great deference to discretionary decisions of Family Part

judges," Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012), in

recognition of the "family courts' special jurisdiction and expertise in family

matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343

(2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). This deference is

grounded in the understanding that trial judges are in the best position to hear

and see witnesses and to get a feel for the case, which a reviewing court cannot

do. State v. Watts, 223 N.J. 503, 516 (2015); see also State v. Nash, 212 N.J.

518, 540 (2013).    "A trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference."   Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting




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                                          6
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)).

      We review a trial judge's decisions concerning the allocation of assets for

equitable distribution for abuse of discretion. See Williams v. Williams, 59 N.J.

229, 233 (1971); Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App.

Div. 1978). Family part judges have broad discretion "in allocating assets

subject to equitable distribution." M.G. v. S.M., 457 N.J. Super. 286, 293 (App.

Div. 2018) (quoting Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012)).

      "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 undertaking this

task, "the court must decide what specific property each spouse is eligible to

receive by way of distribution; the value of such property for purposes of

distribution; and how such allocation can most equitably be made after analysis

of the factors set forth in N.J.S.A. 2A:34-23.1." Sauro v. Sauro, 425 N.J. Super.

555, 572-73 (App. Div. 2012). The decision need only reflect that the "trial

judge . . . appl[ied] all the factors set forth in N.J.S.A. 2A:34-23.1 and

distribute[d] the marital assets consistent with the unique needs of the parties."

DeVane v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995).


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                                         7
      A court is not required to divide assets evenly. See Rothman v. Rothman,

65 N.J. 219, 232-33 n.6 (1974) (rejecting "any simple formula" that the starting

point in dividing marital assets was fifty percent and instructing instead that

"each case should be examined as an individual and particular entity") .

      "The equitable distribution of a pension interest acquired during the

marriage is grounded on the principle that 'a pension plan [is] a form of deferred

compensation for services rendered.'" Barr v. Barr, 418 N.J. Super. 18, 33 (App.

Div. 2011) (alteration in original) (quoting Whitfield v. Whitfield, 222 N.J.

Super. 36, 45 (App. Div. 1987)). "Rather than receiving current income, the

monies are deferred until retirement." Ibid.

      Plaintiff was retired when he filed for divorce. The pension had fully

matured by that time. No one disputes that defendant is entitled to equitable

distribution of the marital portion of the pension.

      We reject the arguments by plaintiff that the court abused its discretion in

allocating the pension.    The court did not err in considering the financial

circumstances of the parties. The criteria under N.J.S.A. 2A:34-23.1 that a court

"shall" consider includes the income brought to the marriage, the standard of

living during the marriage and the economic circumstances of each party at the

time the division of property becomes effective.       The income and earning


                                                                           A-5563-17T3
                                        8
capacity is to be considered, as well as responsibilities for children, the

contributions of the parties to the property, and their debts and liabilities.

      We disagree with plaintiff that the court made a factual error in finding he

was underemployed based on his income in comparison to his training,

experience and occupational employment statistics. 1          He chose to obtain

employment once he retired from public service. The court simply noted there

were other occupations he could perform for a higher income.

      The court did not err in considering defendant's inability to pay her

expenses. The statute states that "[t]he economic circumstances of each party at

the time the division of property becomes effective" shall be considered in the

court's decision on equitable distribution of a marital asset. N.J.S.A. 2A:34 -

23.1(f).




1
  There was no error by the court in considering the occupational employment
statistics of the Department of Labor and Workforce Development
(Department). See Storey v. Storey, 373 N.J. Super. 464, 475 (App. Div. 2004);
see also Child Support Guidelines, Pressler & Verniero, Current N.J. Court
Rules, Appendix IX-A to R. 5:6A, www.gannlaw.com (2019) (discussing how
the court will impute income to parents for child support purposes by using the
Department statistics). The statistics were available to the public on the
Department's website. Occupational Employment Statistics Wage Survey, State
of New Jersey Department of Labor and Workforce Development (May 2018),
https://www.nj.gov/labor/lpa/employ/oeswage/oeswage_index.html.
                                                                            A-5563-17T3
                                         9
      The court did not make a finding that defendant qualified for alimony but

simply observed that defendant was financially dependent throughout the

marriage. The evidence presented was that throughout the marriage, there was

a financial disparity between the parties.

      The court thoroughly reviewed the evidence and applied the required

statutory factors. There is no indication that the court allocated the pension to

include the premarital portion to which defendant was not entitled. Rather, an

uneven distribution provided a more equitable and fair distribution given the

parties' circumstances.

      Plaintiff also appeals the DFJOD because the court did not award him a

credit for half of the value of the 2008 Lincoln Navigator. A court cannot

determine how allocation can equitably be made until it identifies the value of

the marital property that is eligible for equitable distribution. Rothman, 65 N.J.

at 232; see also M.G., 457 N.J. Super at 294.

      The evidence showed disparate valuations. We cannot say that the court

abused its discretion by holding that plaintiff did not meet his burden of

establishing the value of the used vehicle for purposes of equitable distribution.

      Affirmed.




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