CHRISTINE ZEIKEL VS. JEFFREY S. ZEIKEL (FM-18-1145-12, SOMERSET 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                                NOT FOR PUBLICATION WITHOUT THE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-4372-17T2

CHRISTINE ZEIKEL,

Plaintiff-Appellant/
Cross-Respondent,

v.

JEFFREY S. ZEIKEL,1

Defendant-Respondent/
Cross-Appellant.
_________________________

                                NOT FOR PUBLICATION WITHOUT THE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-4372-17T2

CHRISTINE ZEIKEL,

          Plaintiff-Appellant/
          Cross-Respondent,

v.

JEFFREY S. ZEIKEL,1

     Defendant-Respondent/
     Cross-Appellant.
_________________________

                    Argued October 20, 2020 – Decided October 29, 2020

                    Before Yannotti, Haas and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Somerset County,
                    Docket No. FM-18-1145-12.

                    Karin Duchin Haber argued the cause for
                    appellant/cross-respondent (Haber Silver & Simpson,
                    attorneys; Karin Duchin Haber, of counsel; Jani Wase
                    Vinick, on the briefs).


1
  The parties advised us at oral argument that defendant passed away during the
pendency of this appeal.
            James C. Jensen argued the cause for respondent/cross-
            appellant (Laufer, Dalena, Jensen & Bradley, LLC,
            attorneys; James C. Jensen, of counsel; Gregory D. R.
            Behringer, on the brief).

PER CURIAM

      In this post-judgment matrimonial matter, plaintiff appeals from the

Family Part's March 9, 2018 order denying her motion to require the equitable

distribution of defendant's UMB Bank, JP Morgan Chase, KeCalp Investment,

and E*Trade accounts. Plaintiff also challenges the court's May 3, 2018 order,

which denied her motion for reconsideration. Defendant has filed a cross-appeal

and argues that the court erred by requiring him to provide plaintiff with his

Merrill Lynch account statements in order to facilitate the equitable distribution

of that asset. For the reasons that follow, we affirm in part, reverse in part, and

remand for further proceedings.

                                        I.

      The parties are fully familiar with the procedural history and facts of this

matter and, therefore, we need only briefly summarize them here.

      The parties were married in June 1991, and they separated in November

2008. Plaintiff filed the complaint for divorce that is the subject of this appeal

on June 26, 2012.



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      Although the parties disagreed on the date to be used in determining

equitable distribution, the trial judge found after a multi-day trial that

             [b]oth parties concede[d] that all the assets described at
             trial or in their Case Information Statements [were]
             subject to equitable distribution, [except for] gifts to
             [defendant] from his parents. Both parties believe[d]
             that the majority of assets acquired . . . during the
             marriage should be equitably distributed on a fifty-fifty
             (50/50) basis.

      Perhaps because of this mutual concession by the parties, the judge did

not specifically identify all of the marital assets discussed at trial that were

subject to equitable distribution or determine the value of each asset as required

by well-established case law. See Slutsky v. Slutsky, 

451 N.J. Super. 332

, 355

(App. Div. 2017) (quoting Elrom v. Elrom, 

439 N.J. Super. 424

, 444 (App. Div.

2015)). Instead, the judge divided the parties' assets as follows in his October

3, 2017 written opinion:

             [A]ll marital assets, not otherwise specifically divided
             in an alternative manner herein, should be divided
             50/50 as of the date of the filing of the divorce
             complaint—June 26, 2012, including the following:

             1)    Plaintiff's Chase Checking account ending in
                   9755;

             2)    Plaintiff's Chase Saving account ending in 4301;

             3)    Plaintiff's Wells Fargo PMA Prime Checking
                   account ending in 5582;

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                                         3
            4)    Plaintiff's Wells Fargo Crown Banking account
                  ending in 1021;

            5)    Plaintiff's Wells Fargo High Yield Savings
                  account ending in 34171;

            6)    Plaintiff's Wells Fargo Regular Savings account
                  ending in 7567;

            7)    Plaintiff's Wells Fargo Standard Brokerage
                  account;

            8)    Plaintiff's 401K Profit Sharing;

            9)    Plaintiff's Deloitte Partnership interest;

            10)   Defendant's Merrill Lynch IRA ending in 0203;

            11)   The value of the three (3) vehicles, (2012 Porsche
                  Panamera, 2006 Acura MDX and 2001 BMW
                  7401).

            [(emphasis added).]

      After the judge's decision was rendered, a dispute arose between the

parties concerning the equitable distribution of certain accounts that were not

specifically listed in the decision. Plaintiff asserted that defendant's UMB Bank,

JP Morgan Chase, KeCalp Investment, and Merrill Lynch account ending in

#9677 were discussed at trial and, therefore, subject to equitable distribution.

During the trial, plaintiff also alleged that defendant had improperly dissipated

his E*Trade account sometime prior to the June 26, 2012 date of equitable

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distribution. Although she had sought to recover a share of the dissipated funds,

the trial judge did not mention or resolve this claim in his decision.

        Accordingly, plaintiff asked defendant to provide her with statements

concerning all five of these accounts so that the parties could determine their

value and equally divide each asset. With the exception of the E*Trade account,

defendant did not dispute that he had possession of these assets. In an April 12,

2018 certification, defendant "acknowledge[d] that [he had] other accounts that

were subject to equitable distribution and [he] acknowledged that the spirit of

[the trial judge's] decision was that all marital assets were to be equalized as of

the date of the filing of the [c]omplaint." Nevertheless, defendant alleged he

"had no idea what happened to the E*Trade account," and he claimed that the

trial judge "did not distribute the E*Trade account or any other accounts not

listed in the" judge's October 3, 2017 order.

        The parties could not resolve their differences concerning equitable

distribution and other issues. On January 23, 2018, defendant filed a motion to

enforce certain provisions of the trial judge's order that are not germane to the

present appeal. In response, plaintiff filed a cross-motion seeking equitable

distribution of the five accounts listed above. 2


2
    Plaintiff's motion also sought other relief that is not a subject of this appeal.
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                                           5
      The matter was assigned to another judge (the motion judge) for

disposition. On March 9, 2018, the motion judge issued an order denying

plaintiff's request for equitable distribution of the UMB Bank, JP Morgan Chase,

KeCalp Investment, and E*Trade accounts. Ignoring the trial judge's clear

statement that "all marital assets . . . should be divided 50/50 as of the date of

the filing of the divorce complaint, including the following[,]" before he listed

eleven of the parties' assets, the motion judge ruled that any asset not specifically

listed by the first judge was not subject to equitable distribution. (emphasis

added).   Thus, the motion judge denied plaintiff's request for statement s

concerning defendant's UMB Bank, JP Morgan Chase, and KeCalp Investment

accounts so that they could be equitably distributed.

      At the same time, however, the motion judge inconsistently found that

plaintiff was "entitled to [fifty percent] of the amount in the Merrill Lynch

[a]ccount ending in 9677 [after discounting a $1 million gift defendant had

received from his parents] so long as this account was established during [the]

parties' marriage using marital assets." The judge also ordered defendant to

"cooperate in obtaining any and all statements necessary to facilitate equitable

distribution of this account." However, this account, like the UMB Bank, JP




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                                         6
Morgan Chase, and KeCalp Investment accounts listed above, was not

specifically enumerated in the trial judge's decision.

      The motion judge also denied plaintiff's request for a decision on her claim

that defendant had dissipated his E*Trade account prior to the filing of the

divorce complaint.     The motion judge stated that the trial judge had not

addressed this request in his decision and, therefore, "[t]hese issues [were] no

longer appropriate for review." The judge also commented that the "[p]arties

conducted an extensive [t]rial and this [c]ourt is unwilling to reopen newly

discovered assets. Discovery took place over the course of several years. The

[trial judge] already listed the accounts that are to be divided."

      On May 3, 2018, the motion judge denied plaintiff's motion for

reconsideration. The judge again ruled that because the trial judge had not listed

the UMB Bank, JP Morgan Chase, KeCalp Investment, and E*Trade accounts

in his decision, they were not subject to equitable distribution. Plaintiff's appeal

and defendant's cross-appeal followed.

                                        II.

      On appeal, plaintiff argues in Point I of her brief that the motion judge

erred by denying her request for equitable distribution of the UMB Bank, JP

Morgan Chase, and KeCalp Investment assets. We agree.


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                                         7
      The scope of our review of the Family Part's orders is generally limited.

We owe deference to the Family Part's findings of fact because of that court's

special expertise in family matters. Cesare v. Cesare, 

154 N.J. 394

, 411-12

(1998).    Thus, "[a] reviewing court should uphold the factual findings

undergirding the trial court's decision if they are supported by adequate,

substantial and credible evidence on the record." MacKinnon v. MacKinnon,

191 N.J. 240

, 253-54 (2007) (alteration in original) (quoting N.J. Div. of Youth

& Family Servs. v. M.M., 

189 N.J. 261

, 279 (2007)). However, we owe no

special deference to the judge's legal conclusions.           Manalapan Realty v.

Manalapan Twp. Comm., 

140 N.J. 366

, 378 (1995).

      Further, we review the denial of a motion for reconsideration to determine

whether the trial court abused its discretion. Cummings v. Bahr, 

295 N.J. Super. 374

, 389 (App. Div. 1996). Accordingly, reconsideration should only be granted

in "those cases which fall into that narrow corridor in which either 1) the [c]ourt

has expressed its decision based upon a palpably incorrect or irrational basis, or

2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence. . . ."

Id. at 384

(quoting D'Atria

v. D'Atria, 

242 N.J. Super. 392

, 401-02 (Ch. Div. 1990)). Therefore, we have

held that "the magnitude of the error cited must be a game-changer for


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                                          8
reconsideration to be appropriate." Palombi v. Palombi, 

414 N.J. Super. 274

,

289 (App. Div. 2010).

      Applying these standards, we are constrained to conclude that the motion

judge mistakenly ruled that the UMB Bank, JP Morgan Chase, and KeCalp

Investment accounts were not subject to equitable distribution because the trial

judge did not specifically list them in his written decision. As noted above, the

trial judge stated that "all marital assets" were to "be divided 50/50 as of the date

of the filing of the divorce complaint[,] . . . including the following . . . ."

(emphasis added).

      The trial judge's use of the phrase "including the following" before

providing a list of eleven assets is significant. As our Supreme Court recently

confirmed, the addition of the word "including" before a list means that the list

is not exhaustive because that term "implies that there is more than what is

listed." Sanchez v. Fitness Factory Edgewater, LLC, 

242 N.J. 252

, 264-65

(2020) (quoting New Oxford American Dictionary 879 (3d ed. 2010)). Stated

another way, the use of the word "including typically indicates a partial list."

Ibid. (quoting Black’s Law

Dictionary 912 (11th ed. 2019)). Thus, the motion

judge incorrectly concluded that the trial judge's list of eleven assets comprised

the only assets that were subject to equitable distribution.


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                                         9
      The magnitude of this mistake is a "game-changer" that requires

reconsideration of the motion judge's decision. 

Palombi, 414 N.J. Super. at 289

.

If, as plaintiff asserts, the parties raised the distribution of the UMB Bank, JP

Chase Morgan, and KeCalp Investment accounts during the course of the trial,

the trial judge's decision plainly required that the assets be split "50/50."

Therefore, the motion judge should have reviewed the trial record to ensure that

the accounts were disclosed in discovery and covered by the testimony and, if

so, required defendant to provide the statements needed to determine each

party's fifty percent share of the assets.

      For similar reasons, we agree with plaintiff's contention in Point III of her

brief that the motion judge should have addressed the trial judge's failure to

render a decision on the question of whether defendant improperly dissipated

his E*Trade account just before the parties separated in 2008. If that occurred,

the motion judge should have determined whether plaintiff was entitled to

recover the dissipated funds as part of her equitable distribution. The parties do

not dispute that defendant had the account in 2008, but defendant asserted he

did not know what happened to it and, in any event, he no longer had the account

on June 26, 2012, the date of equitable distribution. Because the trial judge did




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not render a decision on this issue, the motion judge was obligated to do so.

Thus, a remand is in order.

      In deciding to remand the issue of the proper distribution of the UMB

Bank, JP Morgan Chase, KeCalp Investment, and E*Trade accounts, we reject

plaintiff's contention in Point II of her brief that we should instead exercise our

original jurisdiction to determine the amounts, if any, that are due her. "[W]e

exercise our original factfinding authority under Rule 2:10-5 only 'with great

frugality and in none but a case free of doubt.'" Bacon v. New Jersey State Dept.

of Educ., 

443 N.J. Super. 24

, 38 (App. Div. 2015) (quoting Tomaino v. Burman,

364 N.J. Super. 224

, 234-35 (App. Div. 2003)). This is not such a case.

      Here, plaintiff has not provided us with a trial transcript. Although she

presents copies of some exhibits pertaining to the accounts at issue, we cannot

determine whether the parties addressed these assets in discovery during their

trial testimony or whether they existed on June 26, 2012, the date designated for

equitable distribution. We also have no basis for calculating the amounts due to

each party from these accounts. Therefore, the record is wholly inadequate to

allow us to exercise our original fact-finding authority in this case.

      Accordingly, we reverse the motion judge's decision denying plaintiff's

requests for equitable distribution of the UMB Bank, JP Morgan Chase, KeCalp


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                                       11
Investment, and E*Trade accounts, and remand the matter to the Family Part for

further proceedings. On remand, the trial court shall determine whether the

assets in question were disclosed in discovery and discussed during the trial.

The court should conduct a plenary hearing if the issue cannot be decided based

on a review of the record and the trial transcript. If the court finds that the

accounts were raised at trial, the court shall order defendant to provide any

records that would assist in determining the value of the accounts, and shall then

divide them on a "50/50" basis as ordered by the first judge.

      As noted in Point IV of her brief, the motion judge denied plaintiff's

motion for counsel fees in connection with her partially successful motion to

enforce the trial judge's order, especially in connection with plaintiff's request

for distribution of defendant's Merrill Lynch account ending in #9677. In view

of our determination that other accounts must now be examined, we reverse this

determination and direct the Family Part to reconsider plaintiff's motion for

counsel fees as part of the remand.

      In deciding to reverse and remand this matter for further proceedings, we

have considered and rejected defendant's contention that the plaintiff's requests

for relief should have been raised in a notice of appeal from, or a motion for

reconsideration of, the trial judge's October 3, 2017 order. As discussed above,


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the trial judge's decision made clear that the list of assets it contained was not

exhaustive. The judge did not place values on any of the accounts and left it to

the parties to exchange the documentation that would permit them to equally

divide the assets as they had always contemplated. Thus, plaintiff properly

attempted to resolve the issues through an exchange of documentation and, when

that failed, correctly sought to enforce the trial judge's clear directives.3

                                        III.

      Finally, we address defendant's cross-appeal. Defendant alleges that the

motion judge erred by requiring him to provide plaintiff with statements

concerning the Merrill Lynch account ending in #9677. As he did with regard

to the accounts that were the subject of plaintiff's appeal, defendant asserts he

had no obligation to disclose any additional information concerning the Merrill

Lynch account because it was not specifically enumerated in the trial judge's

decision. However, this argument lacks merit for the reasons stated above.

      Plaintiff has advised us that defendant has already provided her with the

statements needed to distribute this account. Thus, on remand, the Family Part




3
   Defendant's assertion that plaintiff's claims should have been barred by the
doctrine of unclean hands is without sufficient merit to warrant discussion in
this opinion. R. 2:11-3(e)(1)(E).
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                                        13
shall proceed to divide this asset in accordance with the motion judge's March

9, 2018 order.

                                     IV.

      In sum, we affirm the motion judge's order directing the distribution of

the Merrill Lynch account ending in #9677. We reverse the judge's denial of

plaintiff's motion to require the distribution of the UMB Bank, JP Morgan

Chase, KeCalp Investment, and E*Trade accounts, and remand for further

proceedings concerning these accounts in accordance with this opinion.

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

jurisdiction.




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