GLORIA SIMON v. LINWOOD SIMON

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(NOTE: The status of this decision is published.)

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APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1946-05T21946-05T2

GLORIA SIMON,

Plaintiff-Respondent,

v.

LINWOOD SIMON,

Defendant-Appellant.

_______________________________________


Argued October 30, 2007 - Decided

Before Judges Skillman, Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-979-04.

Ravinder S. Bhalla argued the cause for appellant.

James J. Moloughney argued the cause for respondent (DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys; Mr. Moloughney and Jeffrey W. Pompeo, on the brief).

PER CURIAM

Defendant Linwood Simon appeals from an amended final judgment of divorce entered in this action on November 7, 2005. For the reasons that follow, we affirm.

The parties were married on October 9, 1979, and plaintiff filed a complaint for divorce on June 24, 2004. On May 9, 2005, defendant's pleadings were dismissed and default entered because defendant failed to comply with court orders requiring that he appear in the matter and respond to plaintiff's discovery requests. Defendant moved to vacate default but that motion was denied by order entered on June 17, 2005. The judge scheduled a default hearing for July 19, 2005. On July 15, 2005, defendant filed a motion again seeking to vacate default. The motion was denied and the hearing proceeded as scheduled.

The amended judgment of divorce stated, among other things, that: plaintiff shall retain the former marital residence and defendant shall retain the "Big Fish Farm" in Brazil, including the partnership, land, equipment and profits; plaintiff shall have exclusive rights to her stage name, Gloria Gaynor; plaintiff shall retain all royalties for pre-marital work, including the songs "I Will Survive," "Never Can Say Good-bye," and "I Am What I Am;" and defendant shall pay attorney's fees on plaintiff's behalf in an amount to be determined by the court. On January 31, 2006, the judge entered an order awarding plaintiff $17,655 in counsel fees. The order states that the fees were incurred "as a result of the delays caused by [defendant's] failure to comply with court orders and discovery." This appeal followed.

Defendant raises the following arguments for our consideration: 1) the judge erred by proceeding with the default hearing in defendant's absence; 2) the judge committed plain error by valuing the "Big Fish Farm" in the absence of credible evidence to support the valuation and thereafter improperly offset its value against defendant's equitable share of the marital home; 3) the judge committed plain error by concluding that defendant is not entitled to an equitable share of the royalties for pre-marital work; and 4) the judge committed plain error in awarding attorney's fees to plaintiff.

We have carefully considered the record in light of the contentions advanced by defendant on this appeal. We are convinced that defendant's arguments are entirely without merit. We therefore affirm substantially for the reasons stated by Judge Julie M. Marino in the written opinion that accompanied her judgment. R. 2:11-3(e)(1)(A). We add the following brief comments with respect to defendant's contention that the judge committed plain error in her valuation of the "Big Fish Farm."

As we pointed out previously, default was entered in this matter because defendant repeatedly failed to comply with various court orders requiring that he appear in this action and fully respond to plaintiff's discovery requests. Defendant does not challenge the entry of default in this matter, nor does he dispute that he failed to provide discovery as ordered by the court. Defendant nevertheless argues that the court erred by valuing the "Big Fish Farm" based on certain documents that he produced in discovery.

One of the documents provided by defendant and introduced at the hearing was a contract between defendant, Armondo Sergio Marotti and Decio Cotomacio, in which they agreed to purchase land and operate the "Big Fish Farm." According to this document, the farm would be devoted to the production and sale of shrimp and fish. The agreement indicates that the fisheries would produce three cycles of fish each year. Under the agreement, defendant would receive 19% of the production profits.

Another document provided by defendant is the partnership agreement that provided for the creation of a partnership to operate under the name of "Simon Big Azenda di Creshow." According to this document, the partnership's objectives were to develop areas to raise fish and shrimp; process, export and import fish and crustaceans produced in ponds; hire and lease land containing ponds to produce fish and crustaceans; produce flowers for export; and develop real estate. Under the agreement, defendant had a 42.5% share of the partnership.

Defendant also provided a document which sets forth a forecast for "sales of shares" for the "Big Fish Farm." This document indicates that shares would be sold for five "cages" or "hatcheries" yielding $2,283,650.10. The document states that the cost of production was $1,200,000, resulting in an estimated net revenue of $1,083,650.

The judge valued the fish farm at an amount in excess of $1,000,000. The judge noted that defendant invested $60,000 to purchase the land and the business. The judge also noted that defendant used marital funds to purchase the business and the property. The judge assumed that the fish farm would have revenue of about $1,083,650. This was a reasonable assumption based on the statements set forth in the forecast. The judge additionally assumed that defendant would receive 42.5% of the estimated revenue. This also was a fair inference drawn from defendant's partnership agreement.

Defendant argues, however, that the judge erred by relying on the revenue forecast. He contends that the document contained hearsay and plaintiff failed to establish a foundation for its admission into evidence. Defendant also maintains that the document was not sufficiently trustworthy to be relied upon by the trier of fact, and the judge committed plain error in doing so. We disagree with these contentions.

We note that there is no dispute that defendant and his partners purchased the fish farm. The revenue forecast was one of the few documents actually produced by defendant in discovery. It is reasonable to assume that the forecast was created by or for defendant's partnership. We are convinced that the judge did not err in relying upon it when valuing the asset.

We emphasize that during the course of these proceedings, defendant had every opportunity to produce documents and evidence related to the fish farm and its value. If the revenue forecast was not accurate, defendant could have produced other evidence to establish that fact. Instead, defendant elected to withhold evidence related to the fish farm. In light of his admitted failure to provide that evidence, defendant should not be heard to complain about the accuracy of the revenue forecast or the judge's reliance upon it for purposes of valuing the asset.

We have considered defendant's other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).


Affirmed.

(continued)

(continued)

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A-1946-05T2

November 15, 2007