Kinzler v. Talarico-Kinzler alimony, child support, equitable distribution

DAVID W. KINZLER, Plaintiff-Appellant,

v. LORI P. TALARICO-KINZLER,

Defendant-Respondent. ___________________________

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 3, 2011 - Decided: April 5, 2011

Before Judges Fisher, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1319-09.

Iandoli & Edens, attorneys for appellant (Josephine Iandoli, of counsel; Rebecca K. Li, on the brief).

Townsend, Tomaio & Newmark, L.L.C., attorneys for respondent (Paul H. Townsend, of counsel; Byron C. Taylor and Jodi Argentino Durrenberger, on the brief).

PER CURIAM Plaintiff David W. Kinzler appeals from a dual final

judgment of divorce (JOD). He contends that the trial judge erred by awarding permanent alimony, child support, equitable distribution, parenting time, and counsel fees. We affirm in

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2468-09T2

part, reverse in part, and remand for further proceedings concerning credit card debt, counsel fees, and the issuance of a qualified domestic relations order (QDRO).

During the first few years of a twelve-year marriage, the parties had two children.1 At the beginning of the marriage, David worked in the IT industry, and defendant Lori Talarico- Kinzler was self-employed in a graphic design business. After their children were born, the parties agreed that Lori would close her business and stay at home to raise them. She was later diagnosed with breast cancer, and underwent treatment and several surgeries. At the end of the marriage, Lori freelanced for a marketing company occasionally and worked as a substitute teacher. David continued to work during the marriage, earned a steady income, and furthered himself in the IT industry, until when he was laid off for approximately four months between July and October 2009. The parties were fifty years old when they were divorced.

The judge conducted a three-day trial, issued an extensive written opinion, and entered the JOD on December 15, 2009. The judge imputed income to David in the amount of $145,000 per year and ordered David to pay permanent alimony, child support, private school expenses, and counsel fees. The judge awarded

1 G.R.K. was born in 1998 and G.H.K. was born in 2000. 2

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the parties joint legal custody of the children, entered a parenting-time schedule, and ordered equitable distribution of certain marital assets and debts.

On appeal, David argues that the judge erred by (1) awarding permanent alimony to Lori of $47,500 per year; (2) awarding child support of $202 per week; (3) ordering David to maintain life insurance of $750,000; (4) awarding equitable distribution of certain marital assets and debts; (5) awarding parenting time to Lori on every Christmas Eve and to David on every Christmas day; (6) requiring David to pay future private Catholic school expenses for the parties' children through the eighth grade; and (7) awarding counsel fees to Lori in the amount of $20,500.

"The scope of appellate review of a trial court's fact- finding function is limited. The general rule is that 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). Furthermore, due to the family courts' special jurisdiction and expertise in such matters, we defer to a family court's fact-finding. Id. at 413. We grant substantial deference to a trial court's findings of fact, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably

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credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

I We begin by addressing David's contention that the trial

judge erred by awarding Lori permanent alimony. He argues that limited duration alimony is more appropriate because of his age and Lori's ability to support herself. In calculating alimony, he contends that the judge imputed income to the parties erroneously.

To vacate a trial court's finding concerning alimony, we must conclude:

that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.

[Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).]

See also Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005). "[T]he goal of a proper alimony award is to assist the

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supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000).

As we explained in Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000):

In determining whether to award limited duration alimony, a trial judge must consider the same statutory factors considered in any application for permanent alimony, tempered only by the limited duration of the marriage. All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded.

"There is that warrants an award of permanent alimony from the duration of a marriage that is too brief for an award of permanent alimony. Duration is one factor relevant to the determination whether permanent alimony is appropriate." Gordon v. Rozenwald, 380 N.J. Super. 55, 75 (App. Div. 2005).

In awarding permanent alimony, the trial court explained that:

During the marriage [David] was the major income provider throughout their approximate eleven and one-half year marriage. . . . From the financial evidence submitted at trial, the parties enjoyed a middle to upper middle class lifestyle

no bright line that divides the duration of a marriage

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. . . . The court finds [Lori's] testimonial and documentary evidence more credible as to the marital standard of living. [Lori] is entitled to share in the economic reward reached as a result of the parties' combined efforts inside and outside the home and that standard of living is as much a part of [Lori's] efforts as [David's] ....

....

. . . [Lori] failed to produce any credible evidence of the need for 're- education' since she has continued to be employed in the field of her education and work history. Moreover, [Lori] did not produce credible evidence of 're-education' expenses. [Lori] testified she was a substitute teacher and thought of becoming a teacher and change careers. [Lori] produced no credible evidence that [David] should share the costs of such career change.

However, based on [Lori's] needs and the plaintiff's ability to pay, the parties' and their children's age and health, the approximate twelve year marriage, the parties' history of financial and non- financial contributions to the marriage with [Lori] providing the homemaking and acknowledged primary home childcare responsibility for nine of the twelve years of the marriage, the court finds [Lori] is entitled to permanent alimony. . . . [Lori] will not be able to achieve the marital standard of living with her earned income and her alimony award.

....

The disparity of the parties' incomes is likely to increase over time. It is undisputed that [David] has the employment history to earn approximately $160,000 annually while [Lori's] earning ability demonstrates she may achieve business gross

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income over $100,000 or full time employment earning mean gross wage of $46,750. Since [David's] annual increases will be based mostly on bonus income, it is clear that [David] will increasingly out-earn [Lori]. Although [David] was the primary wage earner, it is clear that [Lori] made substantial contributions to [David's] earning power and the acquisition and preservation of the marital property as wife, mother, care provider and secondary wage earner. In addition, it is unlikely that [Lori] will ever be able to increase her earning capacity to enable her to support herself at the quality of the parties' economic life during the marriage. [David's] position on [his] 'needs' and his 'ability to pay' clearly is antithetical to the evidence presented during the trial . . ..

The court finds that [David] has a continuing obligation to support [Lori] in an effort to maintain her at a reasonable standard of living if the parties cannot meet the standard enjoyed during their marriage. It is clear that neither party, under the facts presented at trial, will be able to maintain the marital lifestyle. However, [Lori] is not constrained to her current post-separation lifestyle resulting from the parties' separation and divorce.

We see no abuse of discretion by awarding permanent alimony. The judge considered the controlling legal principles and determined that permanent alimony is appropriate based on sufficient credible evidence present in the record.

We also see no merit to David's contention that the judge imputed income to him erroneously. When a spouse is not earning up to his or her true potential and capacity, then an imputation

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of income based upon that potential is appropriate. Caplan v. Caplan, 182 N.J. 250, 268 (2005). In imputing income to David,

the judge

explained that:

[David] acknowledged his earning capacity as demonstrated by his work history and tax returns. After the matrimonial hearing ended [David] informed the court he became full time employed . . . with an annual income of $120,000 with an eligible bonus of $25,000. Based on [David's] income ability to earn an income in his IT field as evidenced from his employment history, [David] clearly has the ability to earn an income of approximately $160,000 annually. [David] acknowledged in 2004 he made approximately $160,000 . . . .

. . . The court is satisfied that [David's] income level of $145,000 shall be imputed and used to determine his financial obligations.

Also capable of earning significant income in her chosen field," and thus more than $40,000 annual income should have been imputed to her. That conclusion is unsupported by the record because Lori has not worked full-time since 2000, and in recent years earned approximately $40,000. It would have been unreasonable for the trial court to impute to Lori the income she earned while single, working full-time with no children.

David also contends the judge failed to consider that Lori had an $80,000 trust available to her. Lori testified that her late father's will created a trust for each of his children, and

lacking merit is David's argument that Lori "is

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to provide for "his grandchildren." Lori was named as the sole beneficiary in one of the trusts, but she was required to obtain permission from the trustees, two of her siblings, for distribution of monies. From our review of the record, there is no credible evidence that Lori had unfettered access to the discretionary trust.2

While an inheritance is exempt from equitable distribution under N.J.S.A. 2A:34-23, income generated from an inheritance may be considered in determining the amount of an alimony award. Aronson v. Aronson, 245 N.J. Super. 354, 363 (App. Div. 1991). "So long as the spouse has the ability to tap the income source . . . whether he or she actually obtains the cash in hand is inconsequential." Id. at 364-65. A person's interest in a discretionary trust may not be considered in determining alimony or child support because there is no current right to the funds. Tannen v. Tannen, 416 N.J. Super. 248, 265-68, 273 (App. Div. 2010); see also In re Marriage of Rhinehart, 704 N.W. 2d 677, 680-81 (Iowa 2005) (Supreme Court of Iowa holding that where a beneficiary has an unvested interest in a discretionary trust, having "no right to the allocated, but undistributed, income from the trust," the undistributed income should not be

2 The trust documents were not produced on appeal. 9

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considered alimony)).

as a current source of financial support for

II argues that the trial court erred by awarding child

the amount of $202 per week because the judge imputed the wrong income to him. We reject this argument and see no abuse of discretion concerning the award of child support.

"An award of [child] support is within the discretion of the trial court." Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999). It "will not be disturbed unless it is 'manifestly unreasonable, arbitrary, or clearly contrary to reason or to other evidence, or the result of whim or caprice.'" Foust v. Glaser, 340 N.J. Super. 312, 315-16 (App. Div. 2001) (quoting Raynor, supra, 319 N.J. Super. at 605). Our courts recognize "a parent is obliged to contribute to the basic support needs of [a] . . . child to the extent of the parent's financial ability . . . ." Martinetti v. Hickman, 261 N.J. Super. 508, 513 (App. Div. 1993). Rule 5:6A requires that "the trial court apply the child support guidelines . . . when considering child support." Caplan, supra, 182 N.J. at 264. Moreover, N.J.S.A. 2A:34-23(a) requires consideration of certain enumerated factors.

David support in

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The judge followed the child support guidelines, and considered several of the statutory factors, including N.J.S.A. 2A:34-23(a)(2) (standard of living and economic circumstances of the parents), (3) (income and assets of the parents), (4) (earning ability of the parents), (5) (capacity of the children for higher education), (6) (age and health of the parents and children), and (9) (reasonable debts and liabilities of the parents). Thus, The judge did not abuse his discretion.

III David contends that the trial court erred by requiring him

to maintain a $750,000 life insurance policy to secure alimony because the judge awarded Lori excessive alimony and improperly awarded permanent rather than limited duration alimony. We disagree.

N.J.S.A. 2A:34-25 permits courts to order "[either] spouse to maintain life insurance to protect the former spouse [or the children of the marriage] in the event of the payer spouse's death." Jacobitti v. Jacobitti, 135 N.J. 571, 573 (1994) (internal quotation marks omitted).

The judge explained correctly that if Lori lives through her current life expectancy of thirty-one years at the yearly alimony amount of $47,500, she will receive approximately $1,500,000 total. Thus, Lori should be named as an irrevocable

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beneficiary on David's term life insurance policy in the face amount of $750,000 to provide her with security should David suffer a premature death.

IV We reject David's contention that the judge erred by

ordering him to pay forty-five percent of the carrying costs of the marital residence until its sale. He argues that the judge failed to consider David's other financial obligations.

The judge ordered, and the parties agreed, that the marital home was to be sold. The judge required the parties to share the payment of the mortgages, taxes, repairs, and maintenance of the residence. The judge ordered that David pay forty-five percent and Lori pay fifty-five percent "in consideration of David's obligation to pay child support, in part for shelter expenses allocated for the children."

Equitable distribution of property is reviewed under an abuse of discretion standard. Savoie v. Savoie, 245 N.J. Super. 1, 5 (App. Div. 1990). "[T]he goal of equitable distribution . . . is to effect a fair and just division of marital [property]." Steneken v. Steneken, 183 N.J. 290, 299 (2005) (internal quotations omitted). The judge must "decide[] what specific property of each spouse is eligible for distribution, . . . then determine its value for purposes of such distribution,

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and [finally] decide the most equitable allocation between the parties after analysis of the statutory factors set forth in N.J.S.A. 2A:34-23.1." Genovese v. Genovese, 392 N.J. Super. 215, 225-26 (App. Div. 2007) (citing Rothman v. Rothman, 65 N.J. 219, 232 (1974)); N.J.S.A. 2A:34-23.1. The analysis includes marital debts. N.J.S.A. 2A:34-23.1(m).

Notably, David testified that he planned to pay the costs of the marital residence from the $16,500 he received from the fifty-fifty split of the parties' joint bank accounts until he was gainfully employed. Even if he had not obtained a job in October 2009 at a base salary of $120,000, the court's allocation of carrying costs was reasonable because David had more than enough money to cover the expenses of the marital home from his share of the joint bank accounts alone. Specifically, David noted in his brief that forty-five percent of the first mortgage, real estate taxes, and PNC equity line of credit totaled $1,547 monthly. Lori testified that the marital home's maintenance and repairs totaled approximately $600 monthly, of which forty-five percent is $270. Thus, over the course of five months (from December 15, 2009, when the final judgment of divorce was entered, to May 10, 2010, when the marital residence was sold), David's portion of the carrying costs was $9,085,

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well within the $16,500 David received from the joint bank accounts.

Moreover, in its allocation of the debt, the trial court considered the applicable factors of N.J.S.A. 2A:34-23.1, all of which were supported by the evidence. The parties were the same age when married and divorced. N.J.S.A. 2A:34-23.1(b). The marriage was of intermediate length. N.J.S.A. 2A:34-23.1(a). The court meticulously addressed each party's vocational history and income individually and jointly. N.J.S.A. 2A:34-23.1(g). Contrary to David's assertion, the court considered each party's estimated marital standard of living, which was approximately $1,000 apart. N.J.S.A. 2A:34-23.1(d). The judge considered Lori's current economic circumstances, as stated in her case information statement (CIS). N.J.S.A. 2A:34-23.1(f). The judge also considered David's economic circumstances in its equitable distribution analysis and made findings of fact concerning David's income, debts, and liabilities.

V The judge considered the IRA as a marital asset and

distributed half of the $310,222.23 to Lori. David contends that $128,000 of his IRA acquired prior to the marriage was not subject to equitable distribution because he was the sole owner of that asset. The trial court addressed this issue in detail:

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[David] reported his Verizon Pension was exempt as premarital since May 1, 1996 but failed to provide any statements. [David] did provide a 'NYNEX Corporation Saving Plan' distribution statement for $128,471.24 effective February 28, 1997. The fund listed in the NYNEX statement for Rollover of $128,471.24 was four months prior to the parties' marriage. [David] provided a Merrill Lynch IRA statement for August 29, 1997 to September 26, 1997 . . . listing a balance of $125,628.26 as of August 29, 1997. [David] presented no nexus between the March 11, 1997 NYNEX statement and the September 1997 Merrill Lynch statement . . . which if the same funds . . . would appear to be exempt from equitable distribution. The Merrill Lynch statement is dated two months after the parties married but clearly demonstrates a prima facie showing the funds would be exempt from equitable distribution requiring [Lori] to go forward to prove the funds were marital assets. . . . [David] produced his Vanguard IRA statement dated December 5, 2003, [sic][3] . . . . [David] claimed partial exemption but failed to produce any evidence the Vanguard account was exempt either partially or fully from equitable distribution.

The trial judge traced the origins of the IRA and the origins and timing of deposits into that account based on David's limited documentary evidence, noting that David failed to provide clear documentation on the issue. The judge found correctly that David failed to carry his burden of proof that a portion of the IRA was exempt from equitable distribution.

3 Plaintiff produced during the trial his IRA statement dated December 5, 2008, not 2003.

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VI David contends that the trial judge erred by ordering him

to account for the parties' marital credit card debt and to assume responsibility for the debt if he failed to provide an accounting. The trial judge recounted David's documentary evidence of credit card statements, concluding that he was not able to allocate the debt because "[n]either party provided any evidence as to the credit card debts were acquired and use[d] for family purposes." We remand on this issue so that the debt may be allocated.

The judge ordered the parties to agree on an allocation of the credit card debt "upon full disclosure by the parties to

each other within twenty (20) days . . . . If [David] fails account with statements for any credit card account for debt family purposes, the credit card debt shall not be allocated [Lori] for equitable distribution and shall be the sole responsibility of [David]." It is the parties that "have the primary obligation of adducing those proofs which will enable the judge to make sound and rational valuations." Lavene v. Lavene, 148 N.J. Super. 267, 276 (App. Div.), certif. denied, 75 N.J. 28 (1977).

David's CIS listed various credit cards with estimated jointly acquired debts, while Lori's CIS listed credit cards

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to for to

with jointly acquired "unknown amounts." David is listed as the card holder on the accounts, with the exception of Lori as an additional holder on the American Express - Starwood account. Lori testified that she did not know the balances on cards in David's name because she "[hadn't] seen the bills." Thus, the judge correctly allocated to David the burden of providing sufficient evidence of what charges he alleged were subject to equitable distribution. See Monte v. Monte, 212 N.J. Super. 557, 566-67 (App. Div. 1986) (holding if "husband's debts were incurred during the breakup of the marriage[,]" then he "had the burden of establishing the traceable debts").

Lori contends incorrectly that David failed to comply with the trial court's order to produce credit card statements. On January 4, 2010, David sent Lori statements for the four credit cards: American Express - Starwood, Capital One, American Express - Blue, and PNC Bank Visa Platinum. On January 5, 2010, David sent Lori statements for the GE, Home Depot, FIA World Points, FIA Rutgers, and Chase Visa credit cards. Although David produced statements twenty-one days late, Lori has not argued that she was prejudiced by the delay.

The final JOD did not allocate a specific amount of credit card debt to either party due to the judge's inability to value the debt. David has produced credit card statements, the

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parties have failed to agree upon an allocation of the debt, and a remand is necessary for a determination of the parties' respective obligations for those debts.

VII David contends that the judge erred by awarding parenting

time to Lori every Christmas Eve and to David every Christmas Day. We reject this argument.

The judge awarded the parties joint legal custody, with Lori as the parent of primary residence and David as the parent of alternate residence. David was awarded parenting time on alternate weekends, every Wednesday with alternate overnights, and alternate holidays except for Christmas Eve and Christmas. Concerning custody on the Christmas Eve/Day issue, the judge stated:

[David] raised the issue of historical holiday celebrations on Christmas Eve and [D]ay which he sought to change every year the Italian celebration of seven fishes dinner with [Lori's] family. [David] acknowledged the Christmas celebration with his family always was scheduled after the actual holiday. [David] also acknowledged the tradition with his family was started at the suggestion of [Lori] to be part of his family's tradition.

In appellate review of parenting time decisions, "the opinion of the trial judge in child custody matters is given great weight on appeal." Terry v. Terry, 270 N.J. Super. 105,

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118 (App. Div. 1994). We defer to the trial court's discretionary authority unless the controlling legal principles were not considered. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).

When parents cannot agree upon a custody and parenting time arrangement, as is the case here, the trial court's "primary and overreaching consideration is the best interests of the child." Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). This standard has been described as one that protects the "'safety, happiness, physical, mental and moral welfare of the child[ren].'" Hand, supra, 391 N.J. Super. at 105 (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)). The court is required to consider certain factors enumerated in N.J.S.A. 9:2-4(c).

Here, David conceded that it was tradition to celebrate Christmas Eve with Lori's family. Although David testified that he began objecting to the tradition after approximately seven years, he conceded that the children enjoyed the tradition. David further testified that his family did not have a set Christmas holiday tradition, but rather rotated the holiday among his siblings "[s]ometime during the month of December" depending on schedules.

In the award of parenting time to Lori every Christmas Eve and to David every Christmas Day, the judge "insure[d] that the

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children have the opportunity to participate in the cultural household routine and religious practices of both parents" because Lori's family gathering is every Christmas Eve and David's gathering is some other day in December. See McCown v. McCown, 277 N.J. Super. 213, 219-20 (App. Div. 1994). We will not disturb this ruling.

VIII David contends that the judge erred by ordering him to pay

a portion of the children's Catholic school expenses through graduation. We disagree.

The judge ordered the children to continue attending their current Catholic school "until graduation[4] with each parent responsible for such cost in proportion to their adjusted gross

income."

The judge stated:

[Lori] has decided the children shall continue to be raised Roman Catholic and attend Roman Catholic Schools. The children shall continue their education in their current school until graduation with each parent responsible for such cost in proportion to their adjusted gross income. Each parent shall obtain all school information from the school or the children as to calendar school events and/or activities.

4 Plaintiff testified that the school graduated its students after completion of the eighth grade.

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So long as the lower court's determination to order a non- custodial parent to contribute to a child's private school is supported by sufficient credible evidence in the record and is "reasonable under the circumstances," it will be upheld. Finger v. Zenn, 335 N.J. Super. 438, 445-46 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001).

To determine whether the non-custodial parent is required to contribute to private elementary school tuition, the

following

fourteen factors should be considered: (1) Ability of non-custodial parent to pay.

(2) Past attendance of one or both parents at that or a similar private school.

(3) Whether children were attending private school pre- or post-divorce.

(4) Prior agreement of non-custodial parent to pay to send children to private school.

(5) Religious background of the parties, their children.

(6) Are special educational, psychological and/or special needs of child met, advanced by such private schooling?

(7) Generally, is it in the child's best interest to attend, or to continue to attend, private school (is the academic environment in child's best interest?).

(8) Whether court order or agreement of parties prefers specific right of school choice on residential custodial parent.

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(9) Were actions of residential custodial parent to enroll or to continue to enroll the children reasonable under the circumstances?

(10) Is such private school tuition permitted or authorized as part of that state's child support guidelines, or by other law(s)?

(11) Ability of child to respond, prosper from this educational experience; will such schooling be of particular benefit to him or her?

(12) Lack of present, past non-custodial parental involvement in children's education.

(13) Degree of involvement of custodial parent in children's education (is it extensive?).

(14) Is residential custodial parent's views, desires consistent with past practices regarding private school education?

[Hoefers v. Jones, 288 N.J. Super. 590, 611- 12 (Ch. Div. 1994), aff'd o.b., 288 N.J. Super. 478 (App. Div. 1996).]

See also N.J.S.A. 2A:34-23(a) (enumerating several factors to consider for a child support determination, including the "[n]eed and capacity of the child for education, including higher education." N.J.S.A. 2A:34-23(a)(5)).

Regarding factors two and six, there is no record evidence indicating whether the parents attended private school and

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whether the special needs of the children are advanced through private school.

Regarding factor three, the parties testified that the children were currently enrolled in private school and had been attending the school since kindergarten.

Regarding factor four, David testified that he agreed with Lori that the children remain enrolled in private school through the fifth grade, while Lori testified that she agreed with David that the children remain enrolled through the eighth grade.

Regarding factor five, the children are Catholic.

Regarding factor seven, the children have active social interactions with their schoolmates. Thus, it would be less disruptive from a social perspective for them to finish private school through the eighth grade and then attend public high school. Furthermore, David testified that religious education has aided in fostering the children's moral values.

Regarding factor eight, plaintiff does not challenge the court's order awarding primary residential custody to defendant.

Regarding factor nine, nothing from the surrounding circumstances indicated that the continuation of the children in private school was unreasonable.

Regarding factor ten, private school tuition is not permitted as part of New Jersey's Child Support Guidelines. See

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Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2436 (2011).

Regarding factor eleven, the private Catholic school is of particular benefit to the children since the parents have agreed to raise them as Roman Catholics.

Regarding factors twelve and thirteen, both parties have been actively involved in the children's education.

Regarding factor fourteen, Lori testified that she wishes for the children to remain in private school through graduation, which is consistent with the parties' past practice of sending their children to private school.

Thus, the majority of the factors support a determination that the children continue attending their parochial school through eight grade graduation.

We reject David's argument that he cannot afford his proportionate share of the children's tuition. The judge correctly imputed David's income at $145,000, which leaves him with $66,196 after payment of alimony and taxes, or $5500 per month. David's counsel lists certain monthly expenses totaling approximately $3415. The difference is more than enough to cover his portion of the $1440 monthly private school expenses.

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IX David contends that the trial court erred by awarding

counsel fees to Lori. We remand for the judge to explain how he considered David's ability to pay.

"An award of counsel fees is only disturbed upon a clear abuse of discretion." City of Englewood v. Exxon Mobile Corp., 406 N.J. Super. 110, 123 (App. Div.), certif. denied, 199 N.J. 515 (2009). See also Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (citing Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Rule 5:3-5(c) enumerates the following factors when awarding counsel fees:

(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

We remand for the judge to determine how the equitable distribution award impacted David's ability to pay Lori's counsel fees. See Shaffer v. Shaffer, 154 N.J. Super. 491, 495 (App. Div. 1977) ("While equitable distribution of the marital

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property will not bar an award of counsel fees and costs . . . in an appropriate case, it is clearly a factor for the court to weigh both in deciding whether to make such an award and fixing the amount thereof.").

Affirmed in part; reversed and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.

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