DARYL B. WAINER VS. MIGUEL A. WAINER(FM-02-1405-14, BERGEN COUNTY AND STATEWIDE)
A-4321-14T2
| N.J. Super. Ct. App. Div. | Jul 13, 2017Background
- Parties: Daryl B. Wainer (plaintiff, age 56, employed, gross annual income $92,419) v. Miguel A. Wainer (defendant, age ~79, retired, Social Security ≈ $13,000). Married 25 years; one child attending a private out‑of‑state university.
- Trial court (Family Part) after 4‑day trial awarded defendant open durational alimony of $27,500/year and divided marital assets/debts (including Fidelity account, plaintiff’s pension, and $25,000 credit‑card debt).
- Buenos Aires apartment (beneficially owned) ordered sold within two years; net proceeds allocated 65% to defendant, 35% to plaintiff. No appraisal was produced.
- College debt: plaintiff had borrowed ~$34,000 for the child; trial court ordered parties to share that debt equally and allocated future senior year costs 60% plaintiff / 40% defendant; plaintiff retains part of Fidelity account to satisfy defendant’s share.
- Trial court denied awarding either party attorney’s fees and did not expressly order plaintiff to maintain life insurance as security for alimony to defendant.
- Appellate posture: defendant appeals equitable distribution, alimony amount, college‑expense allocation, failure to require life insurance for alimony security, and denial of counsel fees. Appellate Division affirms in part and remands in part.
Issues
| Issue | Plaintiff's Argument (Wainer) | Defendant's Argument (Miguel) | Held |
|---|---|---|---|
| Equitable distribution of Buenos Aires apartment and related costs | Court’s allocation (sell; 65% to defendant) was reasonable based on parties’ submissions | Trial court lacked sufficient valuation evidence and ignored sale impediments and carrying costs | Affirmed — parties failed to present appraisal; court acted within discretion and record supported finding |
| Treatment of Fidelity account (exempt vs marital) | Account treated as marital and split; plaintiff’s initial exempt gift was commingled | Defendant claimed exempt contributions (sale of painting, inheritance) meriting credit | Affirmed — defendant failed to segregate or prove exempt status; commingling rendered account marital |
| Alimony amount ($27,500/yr) | Award based on current incomes and statutory factors; plaintiff’s earning potential not presumed | Defendant argued award insufficient given his age and limited income; claimed court failed to weigh factors properly | Affirmed — court made adequate findings; used current income (not speculative future Ed.D. earnings); award supported by credible evidence |
| Allocation of past and future college expenses | Court split incurred loans 50/50 and allocated senior year 60% plaintiff / 40% defendant; used Fidelity funds to satisfy shares | Defendant argued inability to pay, opposed out‑of‑state private school, and court failed to apply Newburgh/Gac factors | Reversed/remanded on this issue — trial court treated college debt like ordinary marital debt and failed to apply Newburgh/Gac and statutory factors; further findings required |
| Life insurance as security for alimony | Plaintiff did not expressly ordered to maintain life insurance for defendant | Defendant requested to be beneficiary on plaintiff’s policies as security | Remanded — trial court did not address whether plaintiff must maintain life insurance; appellate court directs further consideration |
| Counsel fees allocation | Court denied fee shifting; plaintiff has limited liquid assets but retained some funds | Defendant claimed plaintiff was in superior position and he could not afford fees | Affirmed — court considered Rule 5:3‑5(c) factors and did not abuse discretion |
Key Cases Cited
- Cesare v. Cesare, 154 N.J. 394 (1998) (deference to trial court factfinding and credibility assessments)
- Rothman v. Rothman, 65 N.J. 219 (1974) (three‑step equitable distribution framework)
- Steneken v. Steneken, 367 N.J. Super. 427 (App. Div. 2004) (goal of fair division; appellate review of distribution)
- Pascale v. Pascale, 140 N.J. 583 (1995) (burden to prove exempt property and effect of commingling)
- Newburgh v. Arrigo, 88 N.J. 529 (1982) (factors for parental contribution to higher education)
- Gac v. Gac, 186 N.J. 535 (2006) (court must balance statutory factors and Newburgh factors for college contributions)
- Lepis v. Lepis, 83 N.J. 139 (1980) (alimony subject to modification for changed circumstances)
- Jacobitti v. Jacobitti, 135 N.J. 571 (1994) (statutory authority to order life insurance to secure support)