SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2998-16T2

KAREN M. MILCARSKY,

Plaintiff-Respondent/

Cross-Appellant,

v.

MARK V. MILCARSKY,

Defendant-Appellant/

Cross-Respondent.

Submitted July 9, 2018 – Decided

Before Judges Carroll and Rose.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Atlantic 

County, Docket No. FM-01-0344-16.

Young, Marr & Associates, LLC, attorneys for 

appellant/cross-respondent (Gail N. Marr, on 

the brief).

Richard I. Goldstein, attorney for 

respondent/cross-appellant.

PER CURIAM 

 Defendant Mark V. Milcarsky appeals a February 3, 2017 

judgment of divorce after a trial in the Family Part, specifically 

NOT FOR PUBLICATION WITHOUT THE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.

July 20, 2018
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challenging his alimony obligation and the equitable distribution 

of his pension. Plaintiff Karen M. Milcarsky cross-appeals, 

arguing that the alimony award is insufficient to maintain the 

marital lifestyle. Having carefully considered the parties' 

contentions in light of the applicable law, we affirm substantially 

for the reasons set forth in the trial judge's thorough oral and 

written opinions. 

 We discern the following facts from the record. The parties 

were married in October 1995, and separated in 2004; however, 

plaintiff did not file her complaint for divorce until November 

2015. No children were born of the marriage. 

 On June 24, 2016, the trial court ordered defendant to pay 

plaintiff $250 per week in pendente lite support. The court 

thereafter conducted a trial on October 25, 2016, and November 16, 

2016, hearing testimony from the parties about their marital 

history, their work and earnings history, the assets they acquired, 

and their standard of living during the marriage. After 

considering the testimony of the parties and making credibility 

findings, Judge Nancy L. Ridgway rendered an oral decision on 

January 11, 2017, supplemented by a comprehensive written opinion 

on February 10, 2017. 

 Notably, Judge Ridgway found as follows. During the marriage, 

defendant was the primary wage earner and plaintiff primarily was 
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a homemaker who cared for her children from a prior marriage. The 

parties purchased a marital home and lived together as a family 

with plaintiff's children. In 2002, plaintiff was diagnosed with 

serious and chronic medical conditions. 

 After the parties separated in June 2004, they agreed to sell 

the marital home and divide its contents and the sale proceeds. 

Following the separation, defendant paid the balance of the loan 

on plaintiff's 2003 Jeep and the rent and security deposit on her 

new apartment. Also, for a period of time, defendant covered 

plaintiff under his health insurance and contributed $200 per 

month for her prescription costs. 

 The trial focused on two issues: the equitable distribution 

of defendant's 401(k) account and plaintiff's claim for alimony. 

On the issue of equitable distribution, Judge Ridgway rejected 

defendant's contention that the marriage was factually and legally 

"dead" when the parties separated in June 2004, and that all 

property acquired thereafter should not be subject to equitable 

distribution. Instead, the judge accepted plaintiff's argument 

under Brandenburg v. Brandenburg, 83 N.J. 198 (1980), that the 

date of the filing of the complaint for divorce is the controlling 

date with regard to the parties' respective rights concerning 

equitable distribution. 
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 The judge found "very credible . . . [d]efendant's desire and 

intent to do right by providing for [p]laintiff and her family." 

Nonetheless, the judge rejected defendant's assertion that a 

notebook containing his handwritten entries and "scribbles" 

constituted a qualifying separation agreement that would fix the 

termination date of the parties' marriage for purposes of equitable 

distribution. Rather, the judge found "[p]laintiff credibly 

testified that she did not recall the notebook being involved in, 

or being a memorialization of, an agreement to separate. To the 

contrary, in her testimony [p]laintiff credibly maintained that 

she was plainly adverse to signing the agreement." Similarly, the 

judge determined that the notebook, testimony, and other evidence 

were "[in]sufficient to establish that a clear oral agreement 

accompanied the parties' separation here." 

 Relying on Brandenburg, 83 N.J. at 209, Judge Ridgway noted 

that "physical separation and the payment of support does not 

equate to a clear termination of a marital relationship." The 

judge elaborated: 

Unless the parties' agreement divided all 

significant assets, or alternatively 

contained a knowing and voluntary waiver of 

the right to the division of a significant 

asset, it will be insufficient to terminate 

the marital relationship. Because the 401(k) 

remains at issue here, a significant marital 

asset has not been divided in equitable 

distribution. Thus, the separation of the 
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parties in this case cannot mark the end of 

[marital] property acquisition. 

 The judge also found enforcement of the purported agreement 

for defendant to provide plaintiff $200 per month "would be 

unconscionable." The judge found such "amount of support is too 

low to be considered fair or equitable. That is, $200 per month 

was an insufficient amount of support to meet [p]laintiff's need[s] 

at the time of separation, and . . . to cover her expenses at the 

current time." 

 These findings did not, however, end the court's analysis 

regarding the equitable distribution of defendant's 401(k) 

account. Judge Ridgway further found 

quite significant the fact that [p]laintiff 

voluntarily failed to make any marital 

contribution, economic, noneconomic or 

otherwise, to the accumulation of the value 

of [d]efendant's 401(k) after the separation. 

Here, following their separation in June 2004, 

. . . [d]efendant enjoyed no benefit from 

. . . [p]laintiff contributing to the marital 

enterprise as a homemaker as he previously 

would have when the parties lived together. 

While her contributions to the marriage during 

the parties' time together is valid, the 

subsequent absence of [p]laintiff's 

participation in the marital enterprise 

justifies a significant disparity in the 

respective value of the 401(k) distributed to 

each spouse in this case. On this record, a 

finding that . . . [p]laintiff is entitled to 

an award for half of the full present value 

of [d]efendant's 401(k) would be patently 

inequitable. 
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 Consequently, the court finds that, of 

the twenty-year and one-month marriage (241 

months), [p]laintiff made a significant 

marital contribution for eight years and eight 

months (104 months). In other words, 

[p]laintiff actively contributed during only 

43% of the acquisition of the marital portion 

of . . . [d]efendant's 401 (k). 

 . . . . 

 Accordingly, the court finds [p]laintiff 

is appropriately entitled to half of the 

relevant 43% of the asset. Therefore, 

[p]laintiff is entitled to 21.5% of the 

marital portion of . . . [d]efendant's 401(k) 

account, measured from the date of the 

marriage to the date of the complaint and 

adjusted for the increase or decrease in value 

during that time. 

 Regarding alimony, Judge Ridgway found credible plaintiff's 

undisputed testimony that "she is disabled and unable to earn 

income aside from [her] approximate net disability income of $600 

per month," which renders plaintiff "largely unable to accommodate 

her need of $2600 per month." The judge found, "[o]n the other 

hand, [d]efendant earns a substantial income . . . in excess of 

$155,000 in the past tax year." These earnings allow defendant 

to meet his expenses of $6325 per month, exclusive of "the unknown 

second income brought into [d]efendant's household by his current 

significant other." The judge determined the parties' twenty-year 

marriage qualified plaintiff to receive open durational alimony. 

After carefully considering the factors set forth in N.J.S.A. 
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2A:34-23(b), the judge ordered defendant to pay plaintiff $250 per 

week as open durational alimony, with such amount to increase to 

$500 per week in the event plaintiff obtained her own apartment. 

 The scope of appellate review of trials in the Family Part is 

particularly limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998).

"The general rule is that findings by the trial court are binding 

on appeal when supported by adequate, substantial, credible 

evidence." Id. at 411-12 (citation omitted). "Because a trial 

court 'hears the case, sees and observes the witnesses, [and] 

hears them testify,' it has a better perspective than a reviewing 

court in evaluating the veracity of witnesses." Id. at 412 

(citations omitted) (alteration in original). We accord 

particular deference to the judge's factfinding because of "the 

family courts' special jurisdiction and expertise in family 

matters." Id. at 413. 

 However, when "the focus of the dispute is . . . alleged 

error in the trial judge's evaluation of the underlying facts and 

the implications to be drawn therefrom, the traditional scope of 

review is expanded." N.J. Div. of Youth & Family Servs. v. M.M., 

189 N.J. 261, 279 (2007) (citations omitted). "Still, even in 

those circumstances we will accord deference unless the trial 

court's findings 'went so wide of the mark that a mistake must 

have been made.'" Ibid. (citations omitted). 
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 "A Family Part judge has broad discretion in setting an 

alimony award and in allocating assets subject to equitable 

distribution." Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 

2012) (citation omitted). "Of course, [as to alimony] the exercise 

of this discretion is not limitless[,]" and is "frame[d]" by the 

statutory factors set forth in N.J.S.A. 2A:34-23(b). Steneken v. 

Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004). Regarding 

equitable distribution, the statutory factors enumerated in 

N.J.S.A. 2A:34-23.1, "used in concert with the facts of each case," 

inform the otherwise "broad discretion" accorded the trial judge. 

Id. at 434-35. 

 In his appeal, defendant essentially contends the trial court 

erred in concluding that the duration of the marriage for equitable 

distribution and alimony purposes was twenty years and one month, 

that there was no agreement reached by the parties at the time of 

separation that addressed all their assets and alimony, and by 

awarding plaintiff open durational alimony and a share of his 

401(k) account. For her part, plaintiff maintains the court 

properly determined the date of the filing of the complaint was 

the proper date to use in establishing alimony and equitable 

distribution, and correctly awarded her open durational alimony. 

However, in her cross-appeal, plaintiff contends the amount of 
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alimony was insufficient to allow her to maintain the marital 

lifestyle. 

 We conclude that the parties' respective claims of error 

regarding the equitable distribution award and the amount and 

duration of alimony, in light of the record, reveal nothing "so 

wide of the mark" that a clear mistake was made that warrants our 

intervention. We affirm substantially for the reasons expressed 

in Judge Ridgway's thoughtful oral and written opinions. We add

only the following limited comments. 

 As Judge Ridgway aptly noted, the Supreme Court held in 

Brandenburg that absent evidence of a written agreement, or a 

complete division of the marital assets pursuant to an oral 

agreement, the trial court should use the date the divorce 

complaint was filed as the date the marriage ended. 83 N.J. at 

209. Here, neither of those exceptions is present. Therefore, 

the applicable date for purposes of equitable distribution was 

November 4, 2015, the date plaintiff filed for divorce, not June 

24, 2004, the date the parties separated. 

 Applying the statutory factors of N.J.S.A. 2A:34-23(b) to

the record, we conclude plaintiff was entitled to alimony.

Defendant's income from his employment was significantly higher 

than plaintiff's disability income. As noted, the parties were
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married in October 1995, and the complaint for divorce was not 

filed until November 2015. Therefore, the parties were married 

for over twenty years, which qualified plaintiff for an award of 

open durational alimony. N.J.S.A. 2A:34-23(b). We find no abuse 

of discretion in the manner the trial court applied the statutory 

factors and reached its conclusion. 

 Finally, we find no merit in plaintiff's cross-appeal with 

regard to the amount of alimony awarded. Noting the parties' 

lengthy separation, Judge Ridgway correctly found defendant 

"should not be obligated to maintain the marital standing of living 

because it has not been the status quo for either party for some 

time." 

 Affirmed.