ANNA SALESKY v. LEONARD SALESKY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5721-03T15721-03T1

ANNA SALESKY,

Plaintiff-Respondent/

Cross-Appellant,

v.

LEONARD SALESKY,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

 

Submitted January 10, 2006 - Decided February 2, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, FM-3-1149-01X.

Leonard Salesky, appellant/cross-respondent pro se.

Domers & Bonamassa, attorneys for respondent/cross-appellant (Alan Domers, of counsel; Sheryl D. Richards, of counsel and on the brief).

PER CURIAM

This is a matrimonial case. Anna and Leonard Salesky married in 1959. They raised four children; three are emancipated and one is deceased. They separated in 1984. From 1975 to 1984, they devoted a significant portion of their finances to develop Leonard's business, LS Scientific. When the parties separated, Anna was employed at Siemans Corporation. She retired in 1999.

In March 2001, Anna filed a divorce complaint. During the pendency of the divorce proceedings, Judge Wellerson ordered pendente lite support for Anna and also ordered Leonard to pay a portion of her counsel fees. The divorce litigation was marked by ongoing discovery disputes and enforcement proceedings. A domestic violence incident occurred in December 2002, as a result of which Anna amended her complaint to include a Tevis claim and Leonard was indicted for attempted murder. The Tevis claim was severed and transferred to the Law Division and is not an issue on appeal. Subsequent to the completion of the divorce proceeding, Leonard was tried and convicted of attempted murder and is now serving a State prison sentence.

The divorce trial was conducted over seven days between January and March 2004. On May 7, 2004, Judge Wellerson issued a thirty-seven page single-spaced written opinion disposing of the contested issues in the case, namely alimony, equitable distribution of property and attorneys' fees. At the time of the divorce, Leonard was sixty-nine years old and Anna was sixty-five. Both parties were retired. Leonard was receiving or entitled to receive social security benefits. Anna was receiving social security and pension benefits. Anna's benefits were less than Leonard's. Because of the extreme acrimony between the parties, Leonard's demonstrated resistance to complying with court orders, and the age of the parties, Judge Wellerson determined that an alimony award would be counterproductive. In lieu of alimony, he awarded Anna an additional sum, $36,505.13, representing the present value of the payments that would be required to equalize the parties' social security and retirement benefits, projected over Anna's life expectancy. Subject to a credit for that amount, the judge divided the marital assets equally.

The judge did not award Anna any additional attorneys' fees beyond those that were awarded pendente lite. He concluded that with the equitable distribution award she had the financial ability to pay the balance of her legal fees on her own and, considering the other factors applicable to counsel fee awards, there was no justifiable basis to render an additional award.

Leonard appealed and makes the following arguments:

I. THE TRIAL COURT ERRED BY AWARDING PLAINTIFF MONIES THAT WERE EARNED AFTER THE TIME OF FILING.

II. THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE PROPERTY SETTLEMENT THE PARTIES DEVISED AT THE TIME OF SEPARATION.

III. THE TRIAL COURT ERRED WHEN IT INCLUDED DEFENDANT'S INHERITANCE AS A PORTION OF THE MARITAL ESTATE.

IV. THE TRIAL COURT [ERRED] BY ALLOWING TESTIMONY IN THE DIVORCE PROCEEDING THAT SHOULD HAVE BEEN A PART OF PLAINTIFF'S TEVIS CLAIM.

V. THE TRIAL COURT ERRED WHEN IT ALLOWED THE TESTIMONY OF A WITNESS THAT SHOULD HAVE BEEN SEQUESTERED.

VI. THE COURT'S BIAS TOWARDS THE PLAINTIFF PREJUDICED THE DEFENDANT'S ABILITY TO RECEIVE A FAIR TRIAL.

VII. THE TRIAL COURT'S AWARD TO PLAINTIFF VIOLATED BOTH THE 13TH AMENDMENT TO THE U.S. CONSTITUTION AND THE NEW JERSEY STATE CONSTITUTION.

Anna cross-appealed and makes these arguments:

I. THE TRIAL COURT ERRED BY FAILING TO AWARD PLAINTIFF ADDITIONAL COUNSEL FEES AND COSTS.

A. Additional Counsel Fees Should Have Been Awarded For Defendant's Failure To Supply Discovery.

B. Plaintiff Should Have Been Awarded Additional Counsel Fees And Costs.

II. THE TRIAL COURT ERRED BY FAILING TO DISTRIBUTE THE SWISS BANK ACCOUNT HELD BY DEFENDANT.

III. THE TRIAL COURT ERRED BY FAILING TO COMPENSATE PLAINTIFF FOR THE DISSIPATION OF ASSETS AND CANCELLATION OF INSURANCE BY THE DEFENDANT PENDENTE LITE.

IV. THE TRIAL COURT ERRED BY FAILING TO PROVIDE PLAINTIFF WITH A CREDIT FOR THE MONIES UTILIZED BY DEFENDANT FROM JOINT ASSETS IN ORDER TO PAY HIS ALIMONY OBLIGATION.

Based upon our review of the record, we are satisfied that the judgment rendered by the trial court is based on findings of fact that are adequately supported by the evidence, R. 2:11-3(e)(1)(A), the judge's discretionary rulings did not constitute a mistaken exercise of discretion, and, except to the extent discussed below, the arguments made on the appeal and cross-appeal lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Wellerson in his thorough and well- reasoned written opinion of May 7, 2004.

The principal substantive issues raised by the parties on appeal deal with equitable distribution of property and attorneys' fees. With respect to equitable distribution, we will not disturb a trial judge's determination whether an asset should be subject to equitable distribution or valuation of the asset if the judge's findings were supported by adequate credible evidence. Rothman v. Rothman, 65 N.J. 219, 233 (1974); Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978). We will not disturb a trial judge's determination regarding the amount and manner of division of property if there was no mistaken exercise of discretion. Borodinsky, supra, 162 N.J. Super. at 444.

Leonard argues that he opened the Fremont Money Market account with money earned by his business after the divorce complaint was filed. However, he admitted that $52,500 was transferred into that account from the Vanguard Prime account, which existed prior to filing. Thus, the funds constituted a transfer of one marital asset to another. See Goldman v. Goldman, 275 N.J. Super. 452, 458 (App. Div.), certif. denied, 139 N.J. 185 (1994). Further, Leonard did not provide records that would establish that the funds were derived from his business after the filing of the complaint. There was no error in the judge's inclusion of these funds for equitable distribution.

Leonard contended that there should be no equitable distribution of property in the divorce proceeding because the parties, at the time of their separation, entered into and implemented a marital agreement. He relies upon a deed dated April 23, 1985, conveying the marital home to Anna. The deed bore a notation: "marital settlement."

Where married parties separate and orally agree to the division of property, and an agreement can be shown by sufficient proof, the court will hold the date of the agreement as the cut-off date for which property acquired after will not be eligible for equitable distribution. Brandenburg v. Brandenburg, 83 N.J. 198, 206 (1980) (citing Di Giacomo v. Di Giacomo, 80 N.J. 155, 159 (1979)). Courts require a "more definite indication than mere physical separation to support a conclusion that the marital partnership terminated prior to the date of a divorce complaint." Id. at 207. A partial distribution will not necessarily demonstrate the end of the marital partnership, and therefore an agreed distribution must involve "'a large part of [the] marital assets.'" Id. at 209 (quoting Di Giacomo, supra, 80 N.J. at 159).

Here, Leonard argues that the deed executing a transfer of one piece of real property to Anna constituted sufficient proof that the parties had an oral agreement dividing the marital assets. Leonard also claimed he made support payments to Anna during the first two years of their separation.

As stated in Brandenburg, it must be evidenced that a large part of the marital assets were distributed between the parties in order for the court to find that an equitable distribution agreement has occurred prior to the filing of the divorce complaint. Leonard offered only the deed to one piece of real property. But there is nothing to suggest that the parties divided the mutual funds, stocks, automobiles, Leonard's business, and another piece of real property. Further, Judge Wellerson found that Leonard deeded the property to Anna with the purpose of avoiding tax consequences. The record supports the judge's conclusion that the parties had not devised an equitable distribution agreement.

Leonard argues that the judge improperly included for equitable distribution assets he acquired by way of inheritance from his parents who died in 1987 and 1989. Anna complains that the judge erred by failing to find that Leonard owned a Swiss bank account and include it in the distribution of assets. Implicit in the judge's decision is that he found the proofs by each party to these respective claims lacking. The record supports the findings, and we will not disturb them.

Finally, we comment on the judge's refusal to award Anna additional counsel fees. A trial judge's determination regarding counsel fees will not be disturbed on appeal unless the determination constituted a mistaken exercise of discretion. Martindell v. Martindell, 21 N.J. 341, 356 (1956). "[F]ee determinations by trial courts will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Judge Wellerson carefully reviewed and analyzed all of the appropriate factors pertaining to counsel fee awards in matrimonial actions, and he explained carefully his reasoning in the application of those factors to this case. We find no mistaken exercise of discretion in the result he reached, and we have no occasion to interfere with his order.

 
Affirmed.

Tevis v. Tevis, 79 N.J. 422 (1979).

(continued)

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A-5721-03T1

February 2, 2006