ROGER POLLACK v. SANDRA POLLACK

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6632-03T5

ROGER POLLACK,

Plaintiff-Appellant,

v.

SANDRA POLLACK,

Defendant-Respondent.

________________________________________________________________

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September 26, 2005

Submitted September 13, 2005 - Decided

Before Judges Coburn, Collester and Lisa.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County,
FM-15-495-03.

George R. M. Saponaro, attorney for appellant
(Christian M. Towers, on the brief).

Sandra Pollack respondent pro se.

PER CURIAM

After a three-day trial, the judge issued a written opinion resolving all issues in this action for divorce, custody, support, and equitable distribution. Judgment was entered on April 26, 2004, and plaintiff's motion for reconsideration was denied by an order entered on June 11, 2004. Plaintiff appealed from the judgment and the order. By order of February 28, 2004, we remanded the case for the limited purpose of a hearing on defendant's request to relocate with the parties' 15 year-old daughter Jessica to Georgia. By a May 13, 2005, document entitled "POST-JUDGMENT ORDER," See footnote 1 another judge granted the permission sought and provided rules governing visitation of the child by plaintiff. That order is not challenged in these proceedings.
Plaintiff offers the following arguments on appeal:
POINT 1
THE LOWER COURT ERRED IN AWARDING SOLE CUSTODY.

POINT 2
THE LOWER COURT ERRED IN AWARDING PERMANENT ALIMONY RATHER THAN LIMITED DURATION ALIMONY.

POINT 3
THE LOWER COURT ERRED IN NOT MODIFYING SUPPORT RETROACTIVELY IN RESPONSE TO PLAINTIFF/APPELLANT'S MOTION FOR RELIEF.

POINT 4
IT WAS REVERSIBLE ERROR TO MAKE THE FINAL JUDGMENT EFFECTIVE MARCH 16, 2003.

POINT 5
IT WAS REVERSIBLE ERROR TO AWARD ONE-HUNDRED PERCENT OF THE FORMER MARITAL RESIDENCE TO DEFENDANT/RESPONDENT.

POINT 6
THE LOWER COURT ERRED IN ITS CALCULATION AND DISTRIBUTION OF PLAINTIFF/APPELLANT'S PERSONAL INJURY PROCEEDS.

POINT 7
THE LOWER COURT ERRED BY NOT AWARDING ATTORNEY'S FEES TO PLAINTIFF/APPELLANT IN ACCORDANCE WITH THE ORDER DATED AUGUST 8, 2002.

POINT 8
THE LOWER COURT ERRED BY EMPLOYING IMPROPER SETTLEMENT TECHNIQUES.

POINT 9
THE LOWER COURT ERRED BY NOT GIVING DUE CONSIDERATION TO THE APPLICATION AND FORMING A FACTUAL BASIS FOR THE DENIAL OF THE MOTION FOR RECONSIDERATION.
 
After considering the record and briefs, we are satisfied that, with one exception, the judgment is based on findings of fact which are adequately supported by evidence, R. 2:11-3(e)(1)(A); that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and that we should affirm on all issues but one substantially for the reasons expressed by the trial judge in his forty-eight page written opinion filed on March 16, 2004. The one exception is the ruling denying plaintiff any equitable share in the marital home, which defendant owned prior to this marriage. Before discussing that ruling, we will comment briefly on the other points raised by plaintiff. In deciding to grant defendant legal and physical custody, the trial judge reviewed and discussed each of the requisite factors set forth in Beck v. Beck, 86 N.J. 480, 497-501 (1981). Plaintiff objects only to the grant of legal custody, which leaves to defendant solely the right to make major decisions regarding their daughter's welfare. Id. at 487. In support of his position, plaintiff notes, among other things, that the judge found he was not unfit. But the judge also found that plaintiff had been largely inactive with respect to Jessica's upbringing and that defendant had been "primarily responsible for raising Jessica and making decisions pertaining to her while the parties were together." He also found that since plaintiff left the marital home in September 2002, "there has been little or no contact between Jessica and her father . . . ." The order entered on May 13, 2005, shows that plaintiff continued not to "exercise parenting time," and had failed to participate in therapy as ordered. With defendant and Jessica moving to Georgia, there is further reason for continuing to let defendant make the major decisions affecting Jessica's welfare. In that regard, we note that both judges indicated that if plaintiff became more involved in his daughter's life, he could ask for reconsideration of the legal custody determination. Given the broad discretion of Family Court judges in resolving these difficult and sensitive issues, Cesare v. Cesare, 154 N.J. 394, 413 (1998), we cannot say that the judge erred in choosing sole legal custody, which is an option expressly endorsed by the Legislature. N.J.S.A. 9:2-4(b).
These parties were married for over twelve years. Based on plaintiff's gross annual income of $37,500 and $20,800 of gross annual income imputed to defendant, who had not worked outside the home throughout the marriage, the judge awarded permanent alimony of $120 per week effective March 16, 2004. The decision in favor of permanent alimony was reached after a careful consideration of all the statutory factors and after finding specifically that the defendant did not have specific plans for her economic future that would have justified rehabilitative alimony only and that a thirteen-year marriage was not a short term marriage. Those determinations are fully supported by the case law. See, e.g., Heinl v. Heinl, 287 N.J. Super. 337 (App. Div. 1996); Shifman v. Shifman, 211 N.J. Super. 189, 194-95 (App. Div. 1986).
The pendente lite child support order required plaintiff to pay $228 per week. The final judgment set child support at $121 per week retroactive to January 31, 2003. Plaintiff contends that child support should have been retroactive to April 28, 2003. Since that would have given him less of a reduction, we reject his argument.
Plaintiff provides no legal authority for his argument that the judgment should have been retroactive to the date of the divorce, December 4, 2003. Nor does he explain how he would have benefited from such a ruling. Therefore, we reject the argument.
As a result of an accident in which only plaintiff was injured, the parties received a net settlement of approximately $324,000. Based on the principles set forth in Landwehr v. Landwehr, 111 N.J. 491 (1988), the trial judge ordered that defendant receive ten per cent of the net settlement. We see no basis for disturbing that decision. Nor do we find any merit to plaintiff's claims that he was entitled to counsel fees or that the judge erred in denying his motion for reconsideration. As to the latter, our inability stems in part from plaintiff's failure to provide his moving papers in the record before us.
Finally we turn to the judge's decision denying equitable distribution of the marital home. Defendant testified that she received the home as a result of the judgment divorcing her from her first husband, that plaintiff sold his home, and that they made her home their marital residence, where they resided throughout their marriage. She said that plaintiff used $23,500 from the proceeds of the sale of his home to pay off a loan she had made from her parents to buy her home. In addition, plaintiff used approximately $25,000 from the settlement of his accident case to pay off an existing mortgage on the marital home. Defendant testified that she believed she was entitled to the marital home free of any equitable claim to a share of it by plaintiff. But when asked for the basis of her belief, she did not testify that he had made the two payments as a gift to her. Rather, she tried to suggest that the parties had agreed to that disposition in their pre-trial settlement discussions.
The trial judge's findings of fact and conclusions of law on this point were as follows:
During the course of the marriage, the parties resided at 356 Bowman Road, Jackson Township, New Jersey. Said property was purchased during the course of defendant wife's previous marriage and was distributed to her as part of the settlement of her first divorce. At the time the within parties were married, the Bowman Road property was titled in the name of Sandra Pollack and continues in Sandra Pollack's exclusive sole name to the present time. At no time during the course of the within parties' marriage was Mr. Pollack placed on the deed. There was conflicting testimony as to whether or not Mr. Pollack ever requested to be placed on the deed, however, the evidence does not indicate any effort to be named on the deed or any acknowledgement by defendant that plaintiff had an ownership interest in the property.

Shortly after the marriage, plaintiff husband paid all or part of a loan that defendant wife had received from her mother to buy out defendant's first husband's interests in the Bowman Road property. The undisputed evidence was that Mr. Pollack paid $15,457.00 from the proceeds of his first divorce to defendant's mother for the loan. There was also no dispute that Mr. Pollack paid off the remaining balance on the Bowman Road mortgage when the proceeds of the personal injury lawsuit were received. The testimony was that the pay off figure was approximately $25,000.00. The specific number was not provided at trial.

The Court finds that the Bowman Road property was pre-marital and is exempt from equitable distribution. The property has been at all times exclusively titled in defendant wife's name. No efforts were made to title the property in both parties names. The Court cannot find on the evidence that defendant wife intended that plaintiff husband have an ownership interest in the property. The property is to remain in Sandra Pollack's name and, if necessary, Roger Pollack is to execute any deeds or other documents conveying any theoretical interest he may have in the property to defendant wife.

As set forth above, the Court feels that the parties gifted their pre-marital cash to each other upon their marriage and utilized said funds for marital purposes. The Court will not make any equitable distribution regarding the $20,000.00 in cash allegedly brought into the marriage by defendant, nor the $15,457.00 brought into the marriage by the plaintiff. The Court makes the same finding with regard to the utilization of the settlement of the personal injury claim for purposes of paying off the mortgage on the Bowman Road property. The proceeds of the settlement were received in or about 1996. The parties separated in 2002. There is no evidence that plaintiff intended to receive some sort of credit when the settlement proceeds were used to pay off the mortgage. The Court finds that limited portion of the proceeds of settlement was gifted by the parties to each other and used for marital purposes. No equitable distribution will be made with regard to that portion of the proceeds of Mr. Pollack's accident settlement utilized to pay off the Bowman Road mortgage.

The Court will also not give plaintiff any credit for the mortgage payments made during the course of the marriage. Although said payments were made from Mr. Pollack's earnings, said funds were marital funds and no credit/reimbursement will be Ordered. Plaintiff also testified that he made some improvements to the Bowman Road property during the course of the marriage. No credible testimony was offered that said improvements increased the value of the Bowman Road property. No credit/ reimbursement will be Ordered to Mr. Pollack for said improvements.
 
Defendant did not contend that plaintiff's payments for their home were gifts, and there is nothing in the record to support that conclusion. In Carr v. Carr, 120 N.J. 336 (1990), the Court concluded that "a spouse may acquire an interest in marital property by virtue of the mutuality of efforts during marriage that contribute to the creation, acquisition, and preservation of such property." Id. at 349. The Court explained that "[t]his principle, primarily equitable in nature, is derived from notions of fairness, common decency, and good faith." Ibid. And in Weiss v. Weiss, 226 N.J. Super. 281, 288 (App. Div. 1988), we held that a marital home acquired in one party's name during the parties' engagement, which the parties intended to be their marital home, was subject to equitable distribution despite the manner in which legal title was held.
We reached that conclusion because the

record amply support[ed] the trial judge's findings that plaintiff participated with defendant in the decision to purchase the marital home, that the parties intended it to be their marital home at the time of purchase, and that plaintiff was actively involved in making improvements to the home both prior to and after the marriage.
Ibid.
 
The only difference in the instant case is that defendant already owned the home before the parties became involved with each other, but that difference does not distinguish the cases. The primary basis for our ruling in Weiss was that the parties intended the home to be their marital home and the plaintiff was actively involved in maintaining the property throughout the marriage. Here, plaintiff went further. He not only provided the income for maintenance of the home; he used his own funds to enable defendant to own, in essence purchase, the house free and clear of the debt on it outstanding at the time of the marriage.
Based on the principles of law in Carr and Weiss and the absence of any proof that plaintiff intended his financial contributions to be a gift, the trial judge erred in denying plaintiff equitable distribution of this asset. Therefore, on this point we reverse and remand for further proceedings consistent with this opinion.
Affirmed in part; reversed in part; and remanded.
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Footnote: 1 The form of this order violated R. 1:6-2(f), which requires that the court's statement of reasons, if not oral or contained in a separate writing, shall be appended to the order, not included within the body of the order.

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