NAWRATAN NAHAR v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2728-03T22728-03T2

NAWRATAN NAHAR,

Plaintiff-Respondent,

v.

KIRAN NAHAR,

Defendant-Appellant.

___________________________________

 

Submitted May 10, 2005 - Decided

Before Judges Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Hudson County, FM-09-2426-02.

Ferro and Ferro, attorneys for appellant

(Nancy C. Ferro, on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant, Kiran Nahar (Mrs. Nahar), appeals from a judgment of divorce entered on September 24, 2003, after a contested trial. Mrs. Nahar argues that the trial judge erred in (1) the equitable distribution of the parties' respective interests in a Union City condominium and a Clifton house; (2) the refusal to order plaintiff Nawratan Nahar (Mr. Nahar) to reimburse certain funds she claims are owed; (3) the calculation of the child support obligations of Mr. Nahar; and (4) the denial of her request for counsel fees. Mr. Nahar appeared pro se in the divorce proceedings and has not filed a response to this appeal.

I

These are the facts gathered from the testimony at trial. Mrs. Nahar came to the United States from India in 1986 at the age of 18. She worked part-time with a company named Rivera Trading and attended Jersey City State College for a short time. She returned to India several years later and married Mr. Nahar on November 30, 1989 in a religious ceremony in India. Approximately six months after the marriage, Mrs. Nahar returned to the United States. Mr. Nahar followed shortly thereafter and entered the country on a business visa. Mrs. Nahar, who was a United States citizen by that time, filed a petition that allowed Mr. Nahar to obtain his green card. The couple then decided it would be beneficial for the family if Mr. Nahar were to attend college. Therefore, Mrs. Nahar withdrew from college and worked full-time while Mr. Nahar attended Jersey City State College.

Three children were born of the marriage: Kirti (August 4, 1996), Pooja (September 17, 1999), and Paras (December 22, 2001). The oldest daughter, Kirti, is currently enrolled in the Clifton public school system, where she is involved in numerous extra-curricular and after-school activities. Mrs. Nahar testified that she pays monthly tuition for these programs, and Mr. Nahar does not contribute toward that tuition.

In 1997, Mrs. Nahar joined her current employer, Samad Brothers, where she is now earning approximately $54,000 (which includes a bonus of $3,500) per year. During the marriage, she turned her paychecks over to Mr. Nahar, who was in charge of the family's finances. Before the parties married, however, Mrs. Nahar had two bank accounts of her own. The first was a certificate of deposit for $15,000. The second account was a savings account with Hudson United Bank, worth approximately $10,200. Those accounts were closed after the marriage; the funds were deposited into a joint account, and then used to purchase the parties' first home, a condominium in Union City.

Between 1990 and 1996, Mr. Nahar worked for Zanana Fashion and Kikomo, Inc. performing accounting services. Mr. Nahar testified that he was a full-time employee of both corporations. He also testified that he was an outside consultant for Samad Brothers (where Mrs. Nahar is currently employed full-time). His earnings were deposited into a joint account, which Mr. Nahar opened at J.B. Oxford. At trial, Mr. Nahar stated that his last job was with Gelmart Industries in December of 2000 where he was working as an accountant at $16 per hour, with no benefits. The record demonstrates, however, that Mr. Nahar later obtained employment in June 2001 as a senior accountant with Rocheux Co., where he initially earned $4,000 per month, with an increase to $4,600 per month in September 2001. He testified at trial that he was laid off before he filed the divorce complaint in 2002.

The family's problems escalated when Mr. Nahar became heavily involved in day trading. His trading was not successful, and he accumulated substantial debt, which reached $156,330 in 2000. Based on Mrs. Nahar's testimony at trial, Mr. Nahar became consumed with day trading, so much so that he did not act in the best interests of the parties' children. While Mr. Nahar testified that he never transferred money from his children's accounts to fund the brokerage account, Mrs. Nahar contradicted this testimony, stating that Mr. Nahar invested money from their oldest daughter's savings account into the stock market.

Mr. Nahar filed for bankruptcy in March 2000. The parties thereafter separated their funds and established three separate accounts - one in Mr. Nahar's name, one in Mrs. Nahar's name, and a joint account used for family expenses. In February 2001, Mrs. Nahar claims to have lent Mr. Nahar $10,000 that he never repaid.

The parties owned two real properties, a one-bedroom condominium in Union City and a house in Clifton. They purchased the condominium in January 1992 for $35,000, paid in cash. The money came from the parties' joint account, and they took title in joint names. At trial, neither party produced an appraisal of the value of the condominium. Mr. Nahar offered the municipal tax assessment as evidence of value. The judge rejected that and stated, "If you don't have an appraiser -- you don't have a witness, and you don't have a real estate appraisal done by a real estate appraiser, then I will have to order the property to be sold and divided by a percentage."

On January 18, 2002, the Clifton home was purchased for $200,000. The $20,000 down payment came from Mrs. Nahar, and the balance was financed. Mrs. Nahar paid the down payment from her separate account, an account established after Mr. Nahar filed for bankruptcy. Mrs. Nahar's name alone appeared on the deed, although both signed the first and second mortgages. After closing on the house, the parties vacationed in India and returned to live together very briefly in the Clifton house. Mr. Nahar spent his days at the Union City condominium, and he refused to transport furniture to the new house. Mrs. Nahar finally confronted Mr. Nahar regarding the living situation. At trial, Mrs. Nahar testified:

I ask[ed] him several time[s], can you, please, bring the stuff. He's, like, you know, I cannot fit this in a car, and I told him, "look, the car is not going to grow anymore, we have to rent a truck and bring it.["] And that's when . . . we had a little argument in March regarding the stuff. ["]I said, I had it, and my children cannot sleep on the floor, even though we have stuff.["] That day he left the house. We had an argument. [He] [c]alls me from the Union City condominium, ["]this is my condominium and that's yours.["] That's [when] I looked at my key chain. My keys [were] gone.

The parties did not have other substantial assets. They drove 1996 and 1997 Toyota Corollas, registered in Mrs. Nahar's and Mr. Nahar's names respectively. Mr. Nahar testified that Mrs. Nahar had approximately $25,000 worth of jewelry, and that he was entitled to half its value. Mr. Nahar has a $100,000 insurance policy on which Mrs. Nahar is beneficiary, and the children receive medical insurance through the New Jersey Kid Care program. Mrs. Nahar pays the premium for that insurance. In addition, Mrs. Nahar has approximately $11,000 of credit card debt that she incurred by traveling to India. The monthly expenses of each party, as reflected in their respective case information statements, show Mr. Nahar with a monthly budget of $5,114, most of which represents personal expenses, and Mrs. Nahar with a monthly budget of $9,259 for herself and their children.

II

Mrs. Nahar argues that the trial court erred in addressing equitable distribution. The Supreme Court set forth the proper procedure for equitably distributing property in Rothman v. Rothman, 65 N.J. 219, 232 (1974). First, the trial court must "decide what specific property of each spouse is eligible for distribution." Ibid. Then, the court "must determine its value for purposes of such distribution." Ibid. Third, the court "must decide how such allocation can most equitably be made." Ibid. The parties must identify the assets eligible for distribution and then present proofs regarding the assets' value. Sculler v. Sculler, 348 N.J. Super. 374, 380 (Ch. Div. 2001). Then, "it is up to the court" to distribute the assets by "applying the statutory factors set forth in N.J.S.A. 2A:34-23.1." Ibid.

On appeal, we must "determine whether the result could reasonably have been reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence." Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978). A mere "feeling of dissatisfaction" is not sufficient to warrant reversal; rather, the appellant must demonstrate "[a] sharp departure from reasonableness." Id. at 248.

First, Mrs. Nahar argues that the condominium was purchased with her premarital savings and therefore should be excluded from the marital estate. We reject this argument. Mrs. Nahar contends that Mr. Nahar's name was handwritten on the check merely to facilitate the closing. But during the divorce proceedings, she herself testified that in order to purchase the condominium, she first deposited premarital funds into a joint account. She now argues that she was confused and did not appreciate the legal consequence of her testimony, and that "the record demonstrates that it was her premarital funds which purchased the condominium and that she did keep these premarital funds segregated . . . ."

In Ryan v. Ryan, 283 N.J. Super. 21 (Ch. Div. 1993), the court was presented with a similar problem in which proceeds from a personal injury action were deposited in the wife's separate account, then placed into a joint account, and later used to purchase the parties' marital residence. At trial, the husband argued that the funds were compensation for pain and suffering, and therefore, the money and the residence were exempt from equitable distribution. Id. at 22. The court rejected the argument, holding "[t]he withdrawal of the funds to purchase a residential dwelling in their joint names, again without reservation, indicates intent that the funds were the exclusive property of both parties." Id. at 24-25. Furthermore, the court held that the mere deposit of those funds into a joint savings account "further evidences an intent that the funds were for their joint use and ownership." Id. at 25.

The personal injury settlement in Ryan is similar to Mrs. Nahar's premarital funds, in that both would be exempt from equitable distribution if maintained as a sole asset. But Mrs. Nahar herself established that the funds were placed in a joint account, and later used to purchase the condominium, which was held in both names. Those facts do not establish a segregated asset.

Mrs. Nahar cites Wadlow v. Wadlow, 200 N.J. Super. 372 (App. Div. 1985), and Shayegan v. Baldwin, 237 N.J. Super. 47 (App. Div. 1989), for the proposition that commingled funds can retain their premarital status, exempt from equitable distribution. While true, in those cases we found sufficient evidence that both parties intended to keep the funds separate. In Wadlow, we noted a clause in the husband's will, stating that $20,000 of premarital assets should be returned to the wife and her family. 200 N.J. Super. at 380-81. Furthermore, the husband in that case testified that the parties "always had the feeling that [the money] had come from her family and as a result of her efforts before marriage and eventually would be returned." Id. at 380-81 (alteration in original). In Shayegan, we found that an inter vivos transfer of the wife's securities portfolio (worth $407,059) to the husband was not intended as commingling, but that "evidence of Iranian custom regarding inter-spousal separate funds" and the testimony of the parties regarding the stock "established the separateness of the accounts in question." 237 N.J. Super. at 51.

There is no comparable evidence in this case. The record does not support Mrs. Nahar's contention that she consistently segregated her premarital earnings, and that the commingling of the funds to purchase the condominium qualifies the condominium as a marital asset under the Rothman analysis.

Mrs. Nahar next argues that the court impermissibly relied on Mr. Nahar's testimony that the market value of the Union City condominium was $40,000. She points out that no official appraisal was admitted at trial, and that she relied on the court's ruling that if no proof was offered as to the value of the property, she would order the property to be sold and the proceeds equally divided and therefore, she proffered no expert appraisal. As noted above, the judge stated: "If you don't have an appraiser -- you don't have a witness, and you don't have a real estate appraisal done by a real estate appraiser, then I will have to order the property to be sold and divided by a percentage." Contrary to her announced intention, the trial judge apparently did adopt Mr. Nahar's unsupported valuation of the marital residence in her findings:

The parties purchased a condominium in November of 1991. . . . The only testimony was [Mr. Nahar's] opinion that the condo had $40,000 in equity. He based this on the purchase price of $35,000, the lack of significant improvements and the passage of time. [Mrs. Nahar] did not challenge this valuation. Therefore I will allow it to stand as unopposed. Both parties agree that [Mr. Nahar] should receive the condo. He is awarded 50% of that asset. Both parties equally contributed throughout the marriage, both in terms of pecuniary and non-pecuniary effort.

The record does not support the judge's finding that "both parties agree that Mr. Nahar should receive the condo."

Mr. Nahar is not an expert and is not qualified to offer an appraisal. The record demonstrates that the parties purchased the Union City condominium for $35,000 in 1992; it was sold as a result of a mortgage foreclosure. The trial court's reliance on Mr. Nahar's estimation of value clearly was error. In Jacobitti v. Jacobitti, 263 N.J. Super. 608 (App. Div. 1993), aff'd, 135 N.J. 571 (1994), we cautioned "trial judges against fixing market value of real property without the benefit of expert appraisal evidence." Id. at 613. In that case, the husband argued that the court arbitrarily fixed the market value of the marital residence. Ibid. We did not, however, remand in that case because on the facts presented, we found it "inconceivable that the . . . value fixed by the trial judge would be off by more than a few thousand dollars." Ibid. Here, there is no basis for a similar conclusion. The judge's earlier stated intention is appropriate to let the market determine the value.

As the trial judge found, the Clifton house unquestionably is not a marital asset. It was purchased by Mrs. Nahar using her own funds for a down payment, and the mortgage has remained her sole liability almost from the start. She alone apparently made the loan payments. It was, therefore, error to conclude that Mr. Nahar's interest in that non-marital property offsets Mrs. Nahar's share in the condominium, which is marital property. The judge made no percentage allocation of the value of the condominium; on remand, an allocation must be made, with distribution to await the sale.

III

Mrs. Nahar argues that the child support calculation contains a mathematical error and that Mr. Nahar has voluntarily remained underemployed throughout the divorce proceedings in an attempt to evade his full child support obligation. She asks us to impute $65,000 annual income to Mr. Nahar, to reflect his previous salary and consulting fees.

The trial judge imputed $55,000 of income to Mr. Nahar. She reasoned:

[P]laintiff's income is greatly in dispute, according to the parties joint tax returns. Those amounts being placed on the record for 98, 99, [and] 2000. And according to his statement for 2001, which was greatly challenged by [Mrs. Nahar] but without proof, the last three years he made approximately, an average of $55,000 a year. I am attributing that to him at this point. He had a drop in 2001 and he now claims he's unemployed for eight months. On the last four months that they were living together and the subsequent four months. I don't think eight months is a long enough time to show that it's not temporary unemployment. If he has the ability to earn and I leave the parties to their proofs to be able to show otherwise. At this point, I'm [imputing] the income as indicated.

Given the standard of review and the evidence presented, Perkins, supra, 159 N.J. Super. at 247-48, we find no grounds for imputing additional income to Mr. Nahar as of the date of trial.

Regarding the child support calculation, it appears that the court made an arithmetic mistake on the Child Support Guidelines worksheet in deducting taxes ($140) from Mr. Nahar's gross weekly income ($858). The remainder shown on the worksheet is $516, but the correct remainder is $718. Had the court used the $718 figure, Mr. Nahar's child support would have been $202. Mrs. Nahar maintains that she brought this error to the court's attention by motion, but the motion was never addressed. The argument was raised as well in a motion for reconsideration, which was denied. These were errors "apparent on the face of the record." Di Pietro v. Di Pietro, 193 N.J. Super. 533, 539 (App. Div. 1984) (quoting Hodgson v. Applegate, 31 N.J. 29, 38-40 (1959)). The defendant in Di Pietro appealed the denial of a motion for relief pursuant to Rule 4:50-1(a), sought on account of an error in applying a pension payment formula. Ibid. We held that in light of the mathematical error, "equitable considerations require[d] correction of [the] judgment," as the plaintiff would have received a windfall had the error not been corrected. DiPietro, supra, 193 N.J. Super. at 540. For similar reasons, the award in this case must be corrected and child support modified as required. We remand for that purpose.

IV

Mrs. Nahar maintains that she was entitled to repayment of a $10,000 loan that she made to Mr. Nahar during the marriage; that the court erred in failing to require him to reimburse funds he took from the children's savings accounts; and that Mr. Nahar owed her her share in two dissipated bank accounts.

With respect to Mrs. Nahar's argument that she is entitled to a repayment of a loan she made to Mr. Nahar, the judge reasoned that:

[S]he voluntarily gave him this money, and in light of the allocation of assets outlined above, in consideration for the offset of her interest in the condo, and in light of his present lack of assets, I decline to shift this debt to him or place a lien on the condominium, his only asset of consequence.

The judge declined to order the loan repaid by citing the "offset" Mrs. Nahar received in the condo, which is clearly error. Nonetheless, the record does not otherwise support the transaction as a loan, and we decline to interfere.

The trial judge made no finding of fact regarding the reimbursement of funds to the children's savings account, because the record is vague with respect to any accounts that existed, or the amounts in any such account. Mrs. Nahar's argument therefore has insufficient support in the record.

The funds for which Mrs. Nahar claims reimbursement (a $15,000 certificate of deposit and a Hudson United Bank Account) apparently were spent during the marriage, and there are no funds to distribute. We see no proofs to the contrary.

V

Mrs. Nahar's final argument is that she is entitled to counsel fees. She does not dispute the court's finding that she is in a "superior position to pay fees." Rather, she contends that she is entitled to fees based on Mr. Nahar's bad faith, citing the following conduct by Mr. Nahar: refusing to directly answer questions, unnecessarily extending divorce proceedings, Mr. Nahar's abusive behavior during his direct examination, and "baseless attempts" to obtain residential custody of the children.

The decision whether to award counsel fees, as well as the amount, reside within the sound discretion of the trial judge. Yueh v. Yueh, 329 N.J. Super. 447, 460 (App. Div. 2000); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 544-45 (App. Div. 1992). The judge is to consider the factors listed in Rule 5:3-5(c). Pressler, Current N.J. Court Rules, comment 4 on R. 5:3-5 (2005). When awarding counsel fees based on a party's bad faith accusations, "fees may be used to prevent a maliciously motivated party from inflicting economic damage on an opposing party by forcing expenditures for counsel fees." Kelly v. Kelly, 262 N.J. Super. 303, 307 (Ch. Div. 1992). Counsel fees in this context both punish the malicious party while compensating the "innocent" party for economic harm. Ibid. Bad faith requires "a party to have malicious motives, to be unfair, to desire to destroy the opposing party, to use the court system improperly to force a concession not otherwise available." Id. at 308 (emphasis added).

Mrs. Nahar argues that Mr. Nahar instituted this divorce action, continually moved for adjournments, did not provide "appraisals" to Mrs. Nahar until the day of trial, and frequently refused to directly answer questions at trial. While an award of counsel fees based on Mr. Nahar's conduct likely would have survived challenge, the parties' poor financial circumstances and Mr. Nahar's obligation for child support suggest no abuse of the judge's discretion. It is neither unfair nor inequitable for each party to bear his or her own litigation expenses. We find insufficient grounds for interfering with the trial judge's exercise of discretion on this aspect of the decision.

On remand, the Family Part judge shall (1) enter an order to list the condominium for sale; (2) determine each party's percentage share in the value of that property; (3) correct the calculation of child support and enter an order accordingly.

 
Affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

The reference in the Judgment of Divorce to a "Property Settlement Agreement" is obviously an error. The judgment followed a trial, and the record does not include a Property Settlement Agreement between the parties.

Mr. Nahar funded his trading account by transferring money from the parties' joint account and borrowing money from his credit card.

Mrs. Nahar testified at trial that she later refinanced the mortgages in her name alone.

As described earlier, plaintiff attempted at trial to establish the condominium's value by submitting a tax assessment, which the court rejected. Later, plaintiff attempted to submit an appraisal, which the court also rejected on Mrs. Nahar's objection because it did not account for parking and other amenities that would increase the property's value.

Mr. Nahar can seek a right of first refusal.

(continued)

(continued)

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A-2728-03T2

December 27, 2005