CIRO DE SARO v. MYRA DE SARO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1649-04T5

CIRO DE SARO,

Plaintiff-Appellant,

v.

MYRA DE SARO,

Defendant-Respondent.

___________________________________

 

Argued December 12, 2005 - Decided March 23, 2006

Before Judges Cuff and Gilroy.

On Appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-513-03-C.

Frank A. Louis argued the cause for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff, Ciro De Saro, appeals from a Final Judgment of Divorce entered in the Family Part on October 21, 2004, awarding defendant, Myra De Saro, 1) limited duration alimony (LDA) for the period of one year following the filing of the divorce complaint; and 2) equitable distribution of a portion of the real and personal property owned by the parties. For reasons that follow, we affirm in part and reverse in part.

We briefly state the procedural history and undisputed facts concerning the issues raised. The parties commenced a dating relationship in May 1999. At the time, plaintiff was employed by Computech as a Sales Manager, and defendant was employed by Columbia Mortgage as an Office Manager. There was a substantial disparity in assets owned by each party. Plaintiff possessed a Merrill Lynch investment account valued at approximately $350,000; an investment account with MFS Investment Management valued at approximately $300,000; and another $1,000,000 in investment and retirement funds. Defendant was the equitable owner of a single-family residence located 2019 Windsor Avenue, Toms River (hereinafter Windsor), legal title for which was held in her mother's name, subject to a mortgage of approximately $77,123. Defendant was also the owner of certain household furnishings, Lladr figurines, Picasso prints, and two automobiles.

In October 1999, the parties commenced living together in plaintiff's rental home in Spring Lake. Shortly thereafter, defendant was terminated from employment, and remained unemployed through the entry of the judgment of divorce. Plaintiff stopped working for Computech in February or March 2000, but later gained reemployment with Comcast where "he [is] on pace to earn" in excess of $180,000 for 2004.

On February 25, 2000, plaintiff purchased a single-family home at 1477 Sequoia Circle, Toms River (hereinafter Sequoia) for $360,000. $158,339.20 of the funds for the purchase of Sequoia came from plaintiff's Merrill Lynch account, and the balance was mortgaged. Plaintiff satisfied the mortgage on January 19, 2001. The parties moved into Sequoia, became engaged in December 2000, and married on October 3, 2001.

On October 16, 2001, title to Windsor was transferred from defendant's mother to plaintiff and defendant. On October 19, 2001, plaintiff transferred Sequoia into his and defendant's names. The parties opened several joint accounts, including a Pulaski Savings Bank savings account, on February 12, 2002; an Investor Savings certificate of deposit, on the same date; and an Investor Savings checking account, on April 29, 2002. The funds placed into the joint banking accounts came primarily from plaintiff's premarital assets. On August 1, 2002, the parties paid off the outstanding mortgage on Windsor with funds from a $70,000 Equity Loan on Sequoia, and approximately $7,000 from the parties' Pulaski Savings account.

While on vacation in Florida during September 2002, the parties had a major argument. Upon their return home, defendant told plaintiff to live downstairs, while she lived upstairs. Plaintiff filed for divorce on grounds of extreme cruelty on October 7, 2002. On October 10, 2002, defendant filed an answer and counterclaim for divorce on the grounds of extreme cruelty. On March 11, 2003, a pendente lite support order was entered which directed among other matters that plaintiff "pay to the [defendant] $375.00 per week for a ninety (90) day period. The characterization of this payment as alimony or equitable distribution was reserved for final hearing." In November 2003, defendant filed a Domestic Violence Complaint against plaintiff, after which plaintiff moved out of Sequoia.

Following a six-day trial, the trial judge issued a comprehensive forty-two page written opinion on August 31, 2004, in which he determined that plaintiff had proven a cause of action for dissolution of the marriage on the grounds of extreme cruelty, and determined the issues of equitable distribution and marital support. On the issue of equitable distribution, the judge determined that the value of the assets subject to equitable distribution, including Sequoia, Windsor, various savings and checking accounts, and jewelry, totaled $922,428.97, and concluded that the assets "should be divided evenly between [plaintiff] and [defendant]." Determining that plaintiff had retained $700,253.63 of the assets, and defendant had retained $222,175.34, the judge concluded that in order to divide the assets equally that plaintiff "shall pay to [defendant], the sum of $239,039.15, subject to [other] adjustments concerning spousal support and other minor issues."

On the issue of spousal support, the judge determined that defendant had failed to establish a claim for rehabilitative alimony, N.J.S.A. 2A:34-23d, because she failed to present proof of a plan showing the scope of rehabilitation and "by her conduct in failing to seek employment or training, [found] that [defendant] has acted in bad faith, and should be estopped from receiving [r]ehabilitative [a]limony." The judge also determined that defendant was not entitled to permanent alimony because of the short duration of the marriage. N.J.S.A. 2A:34-23a. However, concluding that the parties had established a "luxurious" standard of living during the one-year period of marriage, the judge determined that it was appropriate for "[defendant] to continue in the standard of living established during the marriage for a period of one year following the filing of the [d]ivorce [c]omplaint." Although the judge directed that plaintiff was to pay defendant LDA at the rate of $375 per week for one year, he determined that plaintiff did not have to pay LDA from October 7, 2002 (date of filing of the Complaint) to January 7, 2003, because plaintiff had paid the normal shelter and living expenses for defendant during that period. The judge further directed that plaintiff pay LDA from January 7, 2003, through March 11, 2003, the date of the pendente lite order, or $3,375; that plaintiff did not have to pay any additional sums from March 11, 2003, to June 9, 2003, because he had paid the LDA pursuant to the pendente lite order; and, that plaintiff was obligated to pay LDA from June 9, 2003, to October 7, 2003, the one year anniversary of the filing of the divorce complaint, or $11,250. A confirmatory order of judgment was entered on October 21, 2004, that directed plaintiff to pay $200,018.14 in equitable distribution to defendant, after credits which included the LDA award. Plaintiff moved below for a stay of the final judgment pending appeal. The stay was denied, but plaintiff was granted a security interest in property allocated to defendant pending the appeal.

On appeal, plaintiff argues that the judge erred: 1) in awarding LDA; and 2) in ordering a "50/50" split of the parties' assets because they were derived solely from plaintiff's premarital efforts.

I.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. In that accord, we grant substantial deference to a trial court's findings of fact, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). However, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2006).

Plaintiff argues that the trial judge erred in awarding LDA for a period of one year because the judge failed to determine that defendant was "entitled" to LDA under the statute, N.J.S.A. 2A:34-23c and failed to address why the remedy was appropriate "given [the] award of in excess of $200,000 in equitable distribution." We concur.

The primary purpose of alimony is to provide the dependent spouse with sufficient support to continue the parties' standard of living that existed prior to separation. Boardman v. Boardman, 314 N.J. Super. 340, 344 (App. Div. 1998); Wass v. Wass, 311 N.J. Super. 624, 629 (Ch. Div. 1998). Accordingly, the marital standard of living is the measure for assessing initial awards of alimony. Crews v. Crews, 164 N.J. 11, 25 (2000). The grant of alimony allows a dependent spouse "to share in the accumulated marital assets to which he or she contributed." Konzelman v. Konzelman, 158 N.J. 185, 195 (1999). The authority to award alimony is statutory in nature. N.J.S.A. 2A:34-23. Under the statute, the Legislature has established thirteen factors that a trial judge "shall consider, but not be limited to" in deciding whether to award permanent alimony and its amount. N.J.S.A. 2A:34-23b. The factors include:

(1) The actual need and the ability of the parties to pay;

(2) The duration of the marriage;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(9) The history of the financial or non-financial contributions to the marriage by each party . . . ;

(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair.

[N.J.S.A. 2A:34-23b.]

"[LDA] is available to a dependant spouse who made 'contributions to a relatively short-term marriage that . . . demonstrated the attributes of a 'marital partnership' and has the skills and education necessary to return to the work force." Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000). LDA is intended for situations where there is "an economic need for alimony . . . but the marriage was of short-term duration such that permanent alimony is not appropriate." Id. at 476. It addresses cases generally "involving short[]-term marriages where permanent or rehabilitative alimony would be inappropriate or inapplicable but where, nonetheless, economic assistance for a limited period of time would be just." Ibid. (quoting Sponsor's Statement to Senate Bill No. 54 (1998)).

A significant difference between permanent and term alimony is the length of the marriage. While "[t]here is no bright line that divides the duration of a marriage that warrants an award of permanent alimony from the duration of a marriage that is too brief." Gordon v. Rozenwald, 380 N.J. Super. 55, 75 n.4 (App. Div. 2005).

In awarding LDA, like permanent alimony, the trial judge must "consider and make specific findings" under the alimony statute. N.J.S.A. 2A:34-23b; Cox, supra, 335 N.J. Super. at 483. Because the trial judge is the best arbiter of the facts of a case, "substantial weight must be given to the judge's observations of the parties' demeanor, comprehension and speech and to the fact that the trial judge had the distinct advantage of observing demeanor of the witnesses and a better opportunity to judge their credibility . . . ." Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996). Therefore, a trial court's alimony findings may only be vacated if this court concludes that the trial court "clearly abused its discretion, failed to consider all of the controlling legal principles, or . . . that the determination could not reasonably have been reached on sufficient[,] credible evidence present in the record." Id. at 345.

In considering the thirteen statutory alimony factors, the judge determined that defendant had a monthly budget need of $3,037.56; had the capacity to earn $40,000 annually; and that she had not acted in good faith with regard to securing employment during the marriage. He also determined that defendant's financial circumstances had substantially improved during the marriage.

She had very little in assets when the parties met. She had debts and very poor credit. Windsor had been titled in her mother's name as a result of [defendant's] bad credit status. She was behind on her mortgage and she owed capital gains, taxes on the Heller Parkway property she had previously owned with her brother in Newark, New Jersey. [Plaintiff] gave [defendant] money to catch up on the Windsor mortgage and to pay the taxes due on the Heller Parkway. [Defendant] testified that [plaintiff] was quite generous to her.

[Defendant] leaves the marriage with Windsor, free and clear, with substantial jewelry, furs and other gifts, and with a substantial amount of cash. [Defendant] benefited by [plaintiff] paying for over $10,000 worth of her dental work during the relationship. The marriage had no adverse impact upon [defendant's] ability to be employed.

The judge's conclusion that plaintiff should pay LDA was premised on the finding that defendant should be permitted to maintain the marital standard of living for one year after the filing of the complaint.

Both parties enjoyed a rather luxurious standard of living during the relationship. [Plaintiff] made virtually all the financial contributions. [Defendant] contributed by helping to furnish, decorate, and maintain the home, by entertaining guests extensively, by preparing almost all of the meals that the parties ate at home[,] and by providing [plaintiff] with a companion who made [plaintiff] very proud.

As a matter of public policy, I must address the issue of whether [defendant] is entitled to expect [plaintiff] to continue to subsidize this same lifestyle, and if so, for how long. Certainly, Miller [v.] Miller, 160 N.J. 408 (1999)[,] expresses a strong public policy that at the end of a marriage, spouses must deal fairly with each other.

This analysis must take into consideration all the statutory alimony factors, and seek to arrive at a fair result. I find that it is appropriate for [defendant] to continue in the standard of living established during the marriage for a period of one year following the filing of the Divorce Complaint.

We conclude that the judge, although determining defendant's monthly budget, did not evaluate whether her need to maintain the marital lifestyle for the one-year period could be met from her generous equitable distribution award which exceeded $200,000, and her retention of Windsor, now lien free. The judge considered the impact of equitable distribution and defendant's bad faith in seeking employment when determining that she was not eligible for permanent or rehabilitative alimony. It appears, however, that he gave those factors little weight when considering LDA. We see no reason why these factors were not considered in deciding whether to award LDA. We determine that given the substantial amount of the equitable distribution award, defendant's earning capacity and bad faith, defendant did not demonstrate a need for LDA. Notwithstanding the judge's recitation of the statutory factors, we conclude that his justification for the LDA award is not supported by the facts in the record. Accordingly, we reverse the award of LDA.

Plaintiff argues next that the judge erred in awarding a "50/50" distribution of the marital assets. We have carefully considered plaintiff's arguments in light of the applicable law. We conclude that his contentions are without merit, and do not warrant extended discussion in a full written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons expressed by the trial judge in his comprehensive, thoughtful opinion on this issue. The judge's findings were supported by the substantial and credible evidence in the record. We add only the following.

While we have expressly disapproved of a presumption of equal distribution of assets, DeVane v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995) (citing Rothman v. Rothman, 65 N.J. 219, 232 n.6 (1974)), that the end result is one where the assets are split relatively evenly does not automatically warrant a remand. "The goal of equitable distribution . . . is to effect a fair and just division of marital assets." Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005). In distributing marital property, the court undertakes a three step process. Sculler v. Sculler, 348 N.J. Super. 374, 380 (Ch. Div. 2001). First, the court determines what property of each spouse is eligible for distribution. Ibid. Second, each property is valued. Ibid. Finally, the court "must decide how such allocation can most equitably be made." Ibid. (quoting Rothman v. Rothman, 65 N.J. 219, 232 (1974)). As a part of the third step, the court must apply the statutory factors set forth in N.J.S.A. 2A:34-23.1. Ibid. No one statutory factor is superior to the others. Ibid. The list of statutory factors is not exclusive, and the court may consider "any other factor" which it deems to be relevant. N.J.S.A. 2A:34-23.1p. The end result need only reflect that "the trial judge . . . appl[ied] all the factors set forth in N.J.S.A. 2A:34-23.1[,] and distribute[d] the marital assets consistent with the unique needs of the parties." DeVane, supra, 280 N.J. Super. at 493. It is clear from the pre-marital conduct of the parties with regard to their assets, that the "shared enterprise of marriage beg[an] before the ceremonial act." McGee v. McGee, 277 N.J. Super. 1, 12 (App. Div. 1994). We point out that the conduct of the parties before and during a marriage is a relevant factor that the court may consider in its discretion, as it carries great significance in determining their intentions as to each other had the enterprise been successful.

While acknowledging that a substantial portion of the total economic value of the assets was derived from plaintiff's pre-marital estate, the judge determined that the assets should be divided evenly based substantially on the parties' pre-marital conduct, their standard of living during the marriage, and the voluntary acts taken by plaintiff with respect to his pre-marital assets. We note plaintiff's argument of unfairness, claiming that his pre-marital assets should not have been equally divided between himself and defendant. However, we agree with Judge Franklin that plaintiff voluntarily chose to share his assets, and the gifts made to defendant before the marriage were through plaintiff's own volition.

Therefore, contrary to our determination under Point I, we conclude that Judge Franklin's discussion and analysis of the statutory factors for equitable distribution are supported by the evidence. In light of the applicable standard of review, we find no reason to disturb the judge's equitable distribution award.

We affirm the equitable distribution award and reverse the award of LDA. In all other respects, the order under review is affirmed.

 

The court also determined that defendant owed plaintiff during this time period the sum of $26,043.50 for other matters, which when adjusted against the balance of the LDA, resulted in a net payment from defendant to plaintiff in the sum of $11,418.50.

(continued)

(continued)

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A-1649-04T5

March 23, 2006