JAMES COPPOLA v. YONG HUI COPPOLA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1267-04T51267-04T5

JAMES COPPOLA,

Plaintiff-Appellant,

v.

YONG HUI COPPOLA,

(A/K/A YONG LEE COPPOLA),

Defendant-Respondent.

 

Submitted October 18, 2006 - Decided November 9, 2006

Before Judges Winkelstein and Baxter.

 
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-461-04.

Andrew Sangeorge, attorney for appellant.

Aronsohn Weiner & Salerno, attorneys for respondent (Lorraine R. Breitman, on the brief).

PER CURIAM

Plaintiff James Coppola appeals from a final judgment of divorce (FJD) dated September 30, 2004. We affirm in part and reverse in part.

The parties were married on May 12, 1989. Plaintiff is fifty years old and defendant is forty-nine. They have two children: Melissa Coppola, born June 17, 1989, and Nicholas Coppola, born July 5, 1990.

Before and during the marriage, plaintiff was self-employed as a roofing and siding contractor; his business is known as Campbell Construction. Since 1994, defendant has been employed by the United States Postal Service.

Following a two-day trial in June 2004, the judge issued a lengthy written opinion that was memorialized in the FJD. The judge granted each party a divorce, awarded alimony and child support, and equitably distributed the parties' marital property. On appeal, plaintiff raises the following arguments:

POINT I: IT WAS AN ERROR TO GIVE DEFENDANT CREDIT FOR THE VALUE OF PLAINTIFF'S CONSTRUCTION BUSINESS AND BEE-KEEPING ACTIVITY WITHOUT MAKING A FINDING OF THEIR VALUE.

POINT II: THE COURT USED AN INCORRECT DOLLAR AMOUNT IN IDENTIFYING TWO ASSETS FOR EQUITABLE DISTRIBUTION.

POINT III: THE TRIAL COURT FAILED TO GIVE CREDIT TO PLAINTIFF FOR ONE-HALF OF SI[X] THOUSAND DOLLARS OF MARITAL FUNDS.

POINT IV: THE COURT IMPUTED INCOME TO PLAINTIFF WITHOUT ADEQUATE EVIDENCE TO SUBSTANTIATE IT.

In examining plaintiff's arguments, our standard of review is well settled. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) ("[f]indings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence").

Bringing these principles to bear, we begin our discussion with the court's treatment of plaintiff's bee-keeping activities. Plaintiff testified at trial that he engaged in bee-keeping as a hobby; defendant argued it was a business. Plaintiff testified that he earned approximately $500 annually from bee-keeping and gave away most of the honey produced. Defendant testified that plaintiff told her that in 2002, he generated $9000 from selling honey. Neither party reported income or listed expenses related to bee-keeping on their tax returns.

The court determined that plaintiff's bee-keeping generated $9000 in annual income, was a business, and thus, was an asset eligible for equitable distribution. The trial judge said that "such income and value is a factor in awarding the defendant her equitable distribution share of the marital residence." Accordingly, the FJD said: "Plaintiff is awarded the bee keeping business free and clear of any equitable interest of the defendant with payment or offset to the defendant as part of her equitable distribution award of the marital residence." The FJD did not indicate if the court credited plaintiff with all, part, or none of the $9000 it had calculated was generated from his bee-keeping. The issue, then, as we see it, is whether it was error for the judge to include bee-keeping as a factor in his calculation of defendant's equitable share of the marital residence.

A trial judge utilizes a three-step process to evaluate evidence for purposes of equitable distribution. Rothman v. Rothman, 65 N.J. 219, 232 (1974). The judge must decide what specific property of each spouse is eligible for distribution; determine its value; and decide how to equitably allocate the property. Ibid. Here, the record does not sustain the trial court's finding that plaintiff's bee-keeping generated $9000 in income annually so as to constitute an asset subject to distribution. While we do not view the valuation of the bee-keeping activity as necessarily requiring expert testimony, the judge simply accepted defendant's testimony that it generated $9000 in 2002, even though the evidence did not show what the income from bee-keeping was in other years, the yearly expenses, or whether the $9000 was a gross or net figure. Notably, the court's findings to support its conclusion were insufficient. The judge provided no "articulation . . . or analysis to support the carte blanche acceptance of defendant's contentions as to value." Esposito v. Esposito, 158 N.J. Super. 285, 291 (App. Div. 1978). Without such findings, the court's decision is not entitled to our deference. Consequently, we conclude that the court's use of bee-keeping as a factor to determine the parties' equitable shares of the marital residence cannot be sustained.

That takes us to the order establishing $58,868 as the "liquid cash value" of Campbell Construction. The record does support that determination. The judge did not value the business in the traditional sense, but instead valued the assets of the business. Given the nature of plaintiff's construction business he is a sole proprietor who for the most part operates his business out of his home we do not view the methodology employed by the trial judge to value plaintiff's business assets, as opposed to valuing the business itself, to have required expert testimony. Cf. Torres v. Schripps, Inc., 342 N.J. Super. 419, 435 (App. Div. 2001) ("Valuing a closely-held corporation is a difficult task.").

Here, the bank statement for plaintiff's business account, on a date close to the date the complaint for divorce was filed, showed a balance in the account of approximately $28,860. The judge took that figure and added to it $5000 plaintiff used from the business account to pay his divorce attorney. The judge also considered the truck plaintiff used in his business, a 2001 GMC truck that he purchased new for $36,000. Plaintiff's case information statement dated May 28, 2004, listed the value of the truck at $25,000. The judge accepted that value as opposed to the lesser value plaintiff testified to at trial. Consequently, the court took the $28,860 balance in the bank account, plus the $5000 paid by plaintiff to his attorney, and the $25,000 value of the three-year-old 2001 GMC truck, and arrived at a "liquid cash value" of $58,868. The judge's findings were supported by adequate credible evidence in the record and will not be disturbed. Rova Farms, supra, 65 N.J. at 483-84. We are not convinced that assessing a cash value to the construction business's liquid assets was error.

We next turn to whether the record contains sufficient credible evidence to support the trial judge's determination of the value of plaintiff's IRAs. The court concluded that the value of two of plaintiff's IRAs was $9447.85, and gave defendant a credit for $4732.92. The court also found that plaintiff withdrew $4470.55 from the IRA accounts. Plaintiff asserts that this latter finding was unsubstantiated in the record and that the correct value of the IRAs was $5521.60. Defendant acknowledges that plaintiff's portfolio summary is consistent with plaintiff's claim, but argues that the judge added back to the account money plaintiff "admits" he withdrew. The judge's decision, however, does not reference when, how, or why plaintiff withdrew this money; nor does the decision indicate where in the record plaintiff made any such admission. In fact, our review of the record does not reveal the withdrawal. This issue must therefore be addressed by the trial judge on remand.

Next, we turn to whether the court failed to provide plaintiff with a credit for the $6000 defendant was awarded pendente lite. The trial court entered an order on December 19, 2003, permitting defendant to use $6000 to secure living accommodations and purchase furniture. Plaintiff contends that the court failed to give him credit during the equitable distribution process for the withdrawal of those funds, which would otherwise be subject to equitable distribution. We agree. The court's decision does not, as defendant admits, mention whether plaintiff received a credit for this withdrawal, or whether the $6000 came from assets subject to equitable distribution. This too must be addressed on remand.

Finally, we turn to plaintiff's challenge to the court's finding that his yearly income was not less than $100,000. He argues that insufficient evidence existed for such a determination and that his tax returns showed that his annual income is below $40,000. Defendant argues that the tax returns are not controlling; while they may assist a court, they are not definitive. Defendant is correct.

Courts may impute income to parties under the appropriate circumstances for purposes of determining alimony. Miller v. Miller, 160 N.J. 408, 424 (1999). The goal of an alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage. Steneken v. Steneken, 183 N.J. 290, 299 (2005); Crews v. Crews, 164 N.J. 11, 24 (2000) (alimony is meant to secure "the quality of economic life during the marriage, not bare survival" for the supported party).

Here, the trial judge found that the parties had yearly expenses of $84,000. Consistent with this finding, the court determined that plaintiff's income was not less than $100,000 per annum, a sum sufficient to support the parties' expenses. Accordingly, the court awarded defendant $157 weekly alimony, or $8164 annually.

Viewing the evidence and the findings of the trial court in light of the standard of review, we conclude that the court's decision was supported by the record. The judge made extensive findings in his opinion. The court noted that if plaintiff did indeed have only a yearly income ranging between $25,000 and $40,000, as shown in the parties' tax returns, the parties' yearly expenses would exceed their yearly income. Defendant was a salaried employee earning approximately $43,000 per year. Plaintiff, on the other hand, was the sole proprietor of a construction business, where income and expenses are sometimes difficult to track. Plaintiff testified that he commingled his business and private funds. The court found that plaintiff kept cash on hand in the home. Viewing the nature of plaintiff's business, his reported income, his inability to provide detailed evidence of his expenses, as well as the marital lifestyle, the trial court's decision was supported by the evidence.

In sum, we affirm the final judgment of divorce in all respects with the exception of the following: the court shall (1) recalculate the equitable distribution of the marital residence without considering the income from plaintiff's bee-keeping as a factor; (2) reassess whether plaintiff withdrew a portion of the IRAs now showing a $5521.60 value, and (3) address the $6000 pendente lite withdrawal of marital funds.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

We do not suggest that the judge must arrive at different result, only that he reach a result without considering bee-keeping.

(continued)

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A-1267-04T5

November 9, 2006