GINGER PACIFICO v. JAMES PAUL PACIFICO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3071-07T23071-07T2

GINGER PACIFICO,

(n/k/a GINGER GASPARI),

Plaintiff-Respondent,

v.

JAMES PAUL PACIFICO,

Defendant-Appellant.

________________________________________________________________

 

Argued January 22, 2009 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FM-12-330-96.

John E. Lanza argued the cause for appellant (Lanza & Lanza LLP, attorneys; Mr. Lanza, of counsel and on the brief; Elias B. Bassil, on the brief).

George G. Gussis argued the cause for respondent.

PER CURIAM

This appeal requires us to decide whether the trial judge was correct when he concluded that plaintiff Ginger Gaspari, formerly Ginger Pacifico, should have the option of purchasing her ex-husband James Pacifico's one-half interest in the former marital home based on its value in 1996, when the parties divorced, rather than at its value at the time of the buy-out.

Although this issue seems relatively straightforward, it has been the subject of three different proceedings in the Family Part, two prior appeals before this court and an opinion by the Supreme Court. The Court reversed our affirmance of the trial judge's conclusion that the 1996 value, rather than the value in 2003, when James demanded the sale of the former marital home, should be the governing price for purposes of Ginger's buy-out of his interest. Pacifico v. Pacifico, 190 N.J. 258, 268-70 (2007). The Court remanded for a new hearing in the Family Part. Id. at 268-69.

Following that remand, a two-day trial was conducted on May 22 and November 14, 2007. After considering the testimony of the parties as well as the testimony of the attorney who represented James at the time the parties' Property Settlement Agreement (PSA) was drafted, the judge issued a written opinion on January 29, 2008, concluding that the 1996 value, rather than the value at the time of the triggering event in 2003, should govern. We conclude that the trial judge's opinion omits any evaluation of the parties' credibility, ignores Ginger's failure to call her former matrimonial attorney to refute the testimony of James's attorney regarding the parties' intent, and accepts Ginger's contention--that she relinquished her right to all but a small sum of alimony in exchange for the right to use the 1996 valuation--even though her claim of such an exchange was not asserted until four years into these contentious and protracted proceedings. For these reasons and for other reasons we discuss later in this opinion, we conclude that, at best, the evidence was in equipoise. Therefore, Ginger's proofs were inadequate to overcome the presumption established by the Court that "current market value as of the time of the triggering event" should govern. Id. at 269. We reverse.

I.

These are the most relevant facts. The parties were married in 1978 and divorced in 1997. At the time of the divorce, their two sons lived with Ginger in the marital home. The December 2, 1996 PSA, which was incorporated into the final judgment of divorce, obligated James to pay Ginger child support of $435 per week and permanent alimony of $100 per week. Ginger, who was unemployed, was to remain in the marital home with the children and was responsible for payment of the mortgage, property taxes, and homeowners' insurance, to be paid out of the support provided by James.

The PSA further stated that the parties would hold

the marital premises as "joint tenants with the right of

tenants with right of survivorship" until it was sold, and that:

[t]he marital residence shall be sold upon the first happening of any of the following events:

1) Youngest child's attainment of the age of 19;

. . . .

Upon the first happening of any of the foregoing events, the Wife shall have the first option to purchase the interest of the Husband. Should the Wife not choose to exercise this option, the Husband shall then have the same option. If neither party desires to purchase the other's interest the Real Estate shall be listed with a licensed Real Estate broker to be sold and the Real Estate shall be sold. Upon payment from the proceeds of the sale of the house of the outstanding mortgage, Real Estate commissions, transfer tax, recording fees, reasonable attorney's fees, the Wife shall be responsible for all outstanding property taxes or entitled for[sic] a credit of overpayment. . . . Any debt/lien attaching to the property as a result of any action or inaction by Husband or Wife shall be deducted from that party's portion of the proceeds.

When the younger son became emancipated, James filed a post-judgment motion to compel the listing and sale of the property. In her cross-motion, Ginger sought to buy out James' interest for one-half of the $167,000 value that had been established by a broker's market analysis in 1996. The motion judge, who is not the same judge who issued the order that is the subject of this appeal, ruled in Ginger's favor after reviewing the parties' certifications. He did not conduct a plenary hearing. We reversed and remanded for a hearing. Pacifico v. Pacifico, No. A-5880-02 (App. Div. August 3, 2004).

At the ensuing December 2004 hearing on remand, only James and Ginger testified. James maintained that the 1996 market valuation was obtained to establish the value of the asset because he contemplated selling it at that time. Ultimately, he chose not to do so and he remained a co-owner of the house while Ginger and their sons lived there. Furthermore, James testified that the parties never agreed to freeze Ginger's buy-out at the 1996 figure, and she made no concessions that would entitle her to such a result. Rather, the agreement was to sell the house at market value when one of the triggering events specified in the PSA occurred.

Ginger testified that the parties agreed that she could purchase the house at the 1996 valuation upon the emancipation of the parties' younger son. She explained that, in exchange for that favorable valuation, she gave James the tax and mortgage interest deductions. She also pointed to a draft of the agreement that referenced the 1996 value. At the conclusion of the hearing, the judge ruled in her favor. We affirmed. Pacifico v. Pacifico, No. A-3279-04 (App. Div. June 21, 2006). As we have discussed, the Court reversed our affirmance of the Family Part's determination that the 1996 value should be applied, and remanded to the trial judge "to evaluate the evidence that was previously adduced at the hearing, this time, under the standards to which [the Court] made reference." Pacifico, supra, 190 N.J. at 268-69. The standards provided considerable guidance to the Family Part for remand proceedings. The Court directed the Family Part to evaluate the parties' credibility regarding their intentions at the time of the drafting of the PSA, which the Court characterized as "a pivotal factor on remand[.]" Id. at 269. The Court also directed the trial judge to "engage in a close, textual analysis of the various drafts of the PSA" to "aid in that determination." Ibid.

The Court issued another instruction: Ginger must bear the burden of proving that her purchase of James's interest in the marital home should be at the 1996 value. Ibid. The Court observed that "[i]f Ginger satisfies her burden, she is entitled to relief. If she does not, or the evidence is in equipoise, her application should fail." Ibid.

During the remand proceedings, which began on May 22, 2007, each of the parties again testified. Ginger maintained that all negotiations concerning the potential sale of the marital home were "through the attorneys." She explained that James originally insisted that the house be sold immediately, but later agreed to permit her and the parties' sons to remain in the home. Ginger asserted that she and James obtained a real estate appraisal in 1996 to set the price for any later buy-out of the other's share. She also testified to her "understanding" that the value of James's share, if she were to purchase his interest, was half of $167,000, the home's value in 1996. She was questioned about the day she and James settled the terms of their divorce and signed the PSA. When asked whether there were any discussions that day involving the valuation of the house for buy-out purposes, she remarked that the discussions between the two attorneys concerned the pension and a few other issues. She conceded that those discussions "had nothing to do with the house."

When questioned about changes to the alimony amount through the various drafts of the PSA, Ginger responded that "the figures always decreased, as each succeeding draft of the PSA was prepared," with the final version of the PSA providing for $100 per week of permanent alimony, beginning on October 1, 2001. When asked whether such decrease in alimony was an "additional consideration for your being able to stay in the house," she answered "yes."

Ginger also insisted that in return for freezing the valuation at its 1996 level, she had given James the right to claim the interest and property tax on the marital home as itemized deductions on his personal income tax return; however, she acknowledged on cross-examination that in so doing, she had not surrendered much because those deductions would have been virtually useless to her in light of her lack of income. She also conceded that she had no letters or other documents from her attorney "tying together" a 1996 valuation and her agreement to permit James to claim the two deductions. She also acknowledged that nothing in the PSA tied those two items together.

During cross-examination, Ginger acknowledged the inconsistency between James receiving half of fair market value if the house were to be sold to a third party, but receiving half of the much smaller 1996 value if he instead sold his share to her. James's attorney asked her whether she had ever--prior to her testimony that day--asserted that she had "bargained away some alimony" in exchange for the right to freeze the value of the house at its 1996 level. She answered "not that I recall." When James's attorney followed up by asking, "first time you're saying that is today, right," Ginger answered "yes."

The proceedings that day closed with a discussion between the judge and counsel about the scheduling of the next hearing date. Ginger's attorney explained that he intended to call as a witness Susan Schuler, the lawyer who had represented Ginger at the time of negotiation of the PSA and the entry of the divorce. The judge encouraged counsel to "reach out" to Ms. Schuler "because the rescheduling would be by her availability."

When the proceedings resumed on November 14, 2007, the judge began by asking Ginger's attorney whether he had been able to locate Schuler in Pennsylvania. Counsel answered that "[s]he's been found." Without elaborating any further, counsel stated "[s]he's advised us that she will not be here today. So we are going to proceed without her."

Later that day, when James asked the judge to draw an adverse inference from Ginger's failure to produce Schuler, Ginger opposed that request, explaining that Schuler lived in Pennsylvania and "was moving from wherever she lived to somewhere new and . . . it [would be] an inconvenience to her" to attend the court proceedings. Ginger also explained that Schuler had developed a vision problem that interfered with her ability to travel. Consequently, the judge proposed to "have [Schuler] testify telephonically" as an alternative to appearing personally, and asked Ginger to contact Schuler to determine if she would so agree. A little while later, after a brief conference between Ginger and her attorney, Ginger stated that she was unwilling to delay the proceedings any further and wished to proceed without Schuler's testimony. Ginger rested without calling any other witnesses.

James called as a witness Thomas Lanza, the attorney who represented him during the divorce negotiations. Lanza testified to his understanding that when a "triggering event occurred," the value to be used "would be the fair market value [of the house] at the time that either party exercised their option." When asked whether fair market value was specifically "spelled out" in the agreement, he answered "no, . . . that was just what we all understood." He was also asked whether there was "any particular reason why the words fair market value were not included" in the relevant paragraph. He answered that those words "were just inadvertently left out," adding that "it was clear enough in the agreement."

Lanza also testified that the first draft of the PSA, which he prepared, provided for $315 per week in child support and $300 per week of rehabilitative alimony for five years. He noted that next to the $315 figure for child support was the notation "per Guidelines." By the time of the second draft, prepared by Schuler, child support had declined to the sum of $275 per week but alimony was changed to $230 per week for five years with permanent alimony of $130 per week thereafter. Lanza then explained that in the final version of the PSA, which he drafted, child support was set at $435 per week, which was considerably higher than the Guidelines amount of $315. He also explained that his client received no tax benefit from the payment of child support.

When asked whether he ever had any conversations with Ginger's attorney regarding freezing James's interest in the property at the 1996 value, he answered "absolutely not." On cross-examination, Ginger's attorney asked him why he had obtained an appraisal of the marital home in light of James's agreement to permit Ginger to remain there with the parties' children. He answered, "We didn't know if it was going to be sold or not." Finally, when Lanza was asked on cross-examination why the "highest price attainable" language that was included in the first draft had been eliminated from all subsequent drafts of the PSA, Lanza answered, "I just took [it] out . . in cleaning up the agreement. That's all it was."

James, who was the final witness, testified that: he secured the market valuation of the marital home in 1996 only because he originally contemplated selling the house at that time rather than permitting Ginger to remain there; he did not secure the valuation to establish a buyout price for the future; at the time he signed the PSA in 1996, he understood and expected that the house would be sold to a third party and he and Ginger would split the proceeds equally; there was no discussion in 1996 about freezing the value of the marital home at its 1996 level; and the first time he heard Ginger insist that the PSA entitled her to buy out his interest at the 1996 value was during the instant proceedings.

He also testified that: Ginger had never made such a demand in 1996 when the PSA was negotiated and signed; although he was required to pay half the costs of all repairs to the marital home in excess of $100, he never paid his share of any repairs until a court order was entered each time requiring him to do so; he resisted paying for those repairs because he did not have the funds available to do so and believed the repairs were unnecessary; and Ginger insisted on the repairs to force him to share in the costs rather than deferring the repairs until after she exercised the buyout option at which time she would have had to shoulder the entire costs herself.

Toward the end of James's testimony, the judge asked him what Ginger had received in return for her agreement to limit her permanent alimony to $100 a week and relinquish her right to ever seek an increase in that alimony if, as James contended, she had also agreed to buy out his interest in the marital home at its current market value. James answered, "I just don't recall."

In a seven-page written opinion, the judge concluded that Ginger had proven, by a preponderance of the credible evidence, that the parties intended the 1996 value to apply to Ginger's exercise of her option to purchase James's interest in the marital home. In reaching that conclusion, the judge found that the parties had no direct negotiations with each other on the terms of the divorce because all negotiations were accomplished through their attorneys. The judge also found that there were never any conversations between Lanza and Schuler regarding the specific issue before the court. Accordingly, the judge observed that he was "left with the parties' testimony regarding what their intent was, although same was not verbally communicated to each other directly or through their attorneys, and an evaluation of the credibility of their testimony through a close, textual analysis of the drafts that were exchanged prior to the execution of the PSA."

The judge then conducted a review of the various drafts of the PSA. He concluded from his review of those documents that the alimony Ginger would receive continued to decline through each successive version of the PSA. Although the first draft would have required James to pay alimony for only five years, the amount specified in that first draft was relatively high, $300 per week. The second version, prepared by Schuler, reduced the term alimony to $230 per week, but more than offset that reduction by establishing permanent alimony of $130 a week thereafter. By the time the PSA reached its final form at the time of the parties' divorce, the permanent alimony had been reduced to $100 per week, and Ginger relinquished the right to ever seek an increase. The relatively small amount of the alimony was significant, the judge found, because "Ginger was clearly entitled to permanent alimony," and in light of James's 1996 income of $72,000 per year and Ginger's status as a stay-at-home mother, "Ginger's permanent alimony award could have been approximately $300.00 per week."

Recognizing that it is "common practice for . . . parties to bargain alimony and equitable distribution," the trial court concluded:

In reviewing the drafts the court finds that Ginger agreed to accept less alimony than that which otherwise she would have been entitled to at the time of trial and defer commencement of permanent alimony for five years, [and agreed] to waive the right to a review of alimony based upon changed circumstances, and gave up all tax benefits to offset the payments of any alimony in exchange for her husband agreeing that she would have the option to purchase his interest in the marital home at the 1996 value.

James in the final agreement, received all of the tax benefits associated with the marital home, retained his right to claim both children as dependent deductions, [and] limited his alimony exposure to $100.00 per week to begin five years after the divorce[.] [I]n exchange[,] the only item that he gave up was his claim, contained in the first draft of the PSA prepared by his attorney, to have his interest in the marital home acquired at the time of sale either to his former wife or some third party "at the best price obtainable." This is the only credible explanation for the absence of the best price obtainable language in the third and final versions of the PSA prepared by James'[s] attorney.

Further, the court found that "[i]nterpretation of a PSA in the manner in which James claims it should be interpreted . . . would be unfair and inequitable." It would mean that Ginger, represented by counsel, "made financial concessions which were not in her interest and received nothing in return."

The judge concluded that the parties' "intent, taken as a whole, was that the 1996 value would control." In order to reach that conclusion, the judge relied on two factors in addition to Ginger's waiver of reasonable alimony. Those factors were: 1) the deletion of the "best price attainable standard" from all drafts of the PSA after the first one; and 2) James's refusal, unless ordered otherwise by the court, to pay for the repairs to the home. On this latter issue, the judge concluded that if James in fact expected the buyout price to be based on the market value at the time of ultimate sale, "it would have been in James's interest to agree to the repairs in the marital home and keep the home in excellent condition to capitalize on his investment."

II.

As a general rule, "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). "The appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

Further, "matrimonial courts possess special expertise in the field of domestic relations." Cesare, supra, 154 N.J. at 412. Deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). The credibility issue is "preeminently one for the trial court, since it hears the case, sees and observes the witnesses, hears them testify, and has [a] better opportunity to judge their credibility than the reviewing court[.]" Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961).

It stands to reason, however, that when the evidence is primarily documentary in nature, and involves an interpretation of a contract such as a PSA, the deference we ordinarily owe to a Family Part judge's fact-finding is reduced because the trial judge is in no better a position than we are to interpret that document. When interpreting a marital agreement, "[t]he court's role is to consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the 'expressed general purpose.'" Pacifico, supra, 190 N.J. at 266 (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953)).

Once the parties have reached an agreement, generally no court may create a new or better contract than the parties created for themselves. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). As the Court observed in Pacifico, "[a]s a general rule, courts should enforce contracts as the parties intended" by "discern[ing] and implement[ing] the common intention of the parties." Pacifico, supra, 190 N.J. at 266.

With these principles in mind, we turn to an analysis of the judge's decision. In doing so, we remain mindful of the Court's instruction that Ginger has the burden of proof, and if she does not satisfy her burden, or the evidence is in equipoise, her application "should fail." Id. at 269. We conclude that the judge's decision is flawed for several reasons.

First, the judge concluded that the parties agreed to use the 1996 value even though there were no conversations or negotiations directly or through counsel about doing so. We have considerable difficulty accepting the proposition that the parties reached an agreement about a subject they never discussed. In interpreting a PSA, a judge must "discern . . . the common intention of the parties." Id. at 266. There can be no "common intention" unless there is a mutual intent to be bound by the provision in question. Without any discussion of freezing the value at its 1996 level, it is highly unlikely that the parties had this mutual intent.

The judge recognized that the parties never "verbally communicated" their intention to freeze the buy-out price at its 1996 level. Consequently, he surmised that Ginger must have relinquished her right to receive permanent alimony of as much as $300 per week in return for achieving a favorable buy-out figure on the marital home.

We have no quarrel with the judge's observation that parties to a divorce often trade off equitable distribution against alimony; however, if a party surrenders alimony to gain a more favorable valuation of marital property, we would expect him or her to insist that the favorable valuation term be included in the PSA, not omitted. We do not mean to suggest that a party who exchanges alimony for the freezing of an asset at a reduced price will necessarily make the alimony/buy-out exchange explicit in the PSA. But certainly, once a party surrenders alimony, that party will want to ensure that he or she receives the favorable valuation price that was allegedly bargained for in return.

Stated differently, if, as the judge believed, Ginger surrendered as much as $200 of additional alimony per week in exchange for using the 1996 value for her buy-out of James's interest, we would expect her to have insisted that the PSA contain an explicit provision freezing the valuation at its 1996 level. Omitting that term--as Ginger has done--leaves her open to the risk that she will not only be surrendering alimony, but also that she will be losing the very result she allegedly sought to achieve, namely the use of the 1996 valuation. Consequently, we have grave reservations about the judge's conclusion that such an agreement was ever reached.

Furthermore, the judge never evaluated the parties' credibility. He never considered--at least not explicitly--whether Ginger's claim that she exchanged her right to alimony for the right to use the 1996 valuation was credible in light of her failure to have made such a claim in her original certification in 2004, during the 2004 trial, in the two earlier appeals before us or in her appeal to the Supreme Court. Indeed, during the 2004 trial, Ginger supported her claim to the 1996 valuation with an entirely different argument: she claimed James agreed to the 1996 valuation because she had allowed him the benefit of claiming the interest and property tax as income tax deductions. Id. at 264. Ginger's abrupt change in course received no mention from the judge.

The judge also failed to explain why he found credible James's testimony that the parties never discussed using the 1996 valuation, while at the same time rejecting James's explanation about why he balked at paying for his share of repairs to the home. The judge concluded that if, as James contended, the parties agreed to use fair market value to determine the buy-out price, then James would not have resisted paying his share of the repairs to the home. In making that finding, the judge omitted any discussion of James's equally plausible explanation that Ginger sought to accelerate all possible repairs, even those that were not yet necessary, in order to force him to pay for half of each such repair, rather than be required to shoulder the entire cost herself after the buy-out.

Moreover, in concluding that Ginger's surrender of a reasonable sum of alimony only made sense if the agreement were construed to freeze the home's value at the 1996 level, the judge erroneously viewed the alimony component in isolation. In doing so, the judge ignored the generous child support Ginger negotiated. Over the course of the various versions of the PSA, child support increased from $275 per week to $435 per week, far more than the $315 per week required by the then-applicable Child Support Guidelines. Moreover, the child support was not taxable, whereas alimony is, thus providing a considerable benefit to Ginger. When the small amount of alimony and the generous child support are viewed in tandem, as they must be, the judge's conclusion that Ginger surrendered reasonable alimony in exchange for using the 1996 valuation begins to collapse.

The judge's conclusion that Ginger exchanged alimony for the 1996 valuation becomes even more problematic when the equitable distribution of James's pension is considered. Ginger received fifty percent of James's pension, valued at the time of the JOD. Thus, when alimony, child support, and distribution of the pension and marital home are considered in the aggregate, the judge's conclusion that James's interpretation of the PSA would be unfair and inequitable, is questionable at best.

The judge also gave considerable weight to the elimination of the "best price attainable" language from the final version of the PSA. He concluded that the elimination of this language favored Ginger's position. However, in reaching that conclusion, the judge failed to consider the countervailing evidence. Specifically, during the first plenary hearing in December 2004 Ginger "pointed to a draft of the agreement that referenced the 1996 value." Pacifico, supra, 190 N.J. at 264. Thus, the judge's opinion ignores the obvious fact that both parties, not just James, apparently agreed to the deletion of favorable valuation language in various versions of the PSA.

In addition, the judge's opinion ignores language very favorable to Ginger's position that did not survive the revisions made to subsequent drafts. Specifically, in a version prepared by Schuler, Ginger proposed to remain in the home until the younger son was emancipated and then give James a mortgage "in the amount of one-half of the equity at the time of the divorce" in return for James signing a quitclaim deed. This version of the PSA clearly supports Ginger's position that James's equity was frozen at its 1996 level for buy-out purposes. Yet, significantly, this language was not accepted by James and did not find its way into the PSA. Viewed in this light, James's surrender of the "best attainable price" language is entirely offset by Ginger's surrender of the "mortgage in the amount of one-half the equity at the time of divorce" language. Consequently, the elimination of the "best price attainable" language does not, as the judge concluded, favor Ginger's position.

Finally, we turn to the judge's refusal to draw an adverse inference from Ginger's failure to produce any testimony from Schuler. Even if Schuler was in Pennsylvania and suffering from the vision problem Ginger described, there was no reason why Ginger could not have arranged for Schuler to testify by telephone, an option the judge himself offered Ginger. Thus, Ginger's failure to produce Schuler, who was in a position to elucidate the facts at issue, who was available to Ginger telephonically and whom Ginger would naturally be expected to call so as to refute Lanza's testimony, unquestionably entitled James to the benefit of an adverse inference. State v. Clawans, 38 N.J. 162, 170-71 (1962). Under the circumstances presented, James was entitled to an inference that had Schuler been called, her testimony would not have been favorable to Ginger. The judge's failure to discuss Schuler's non-appearance strikes us as a substantial flaw in the judge's analysis of the proofs, and one that calls into question the judge's ultimate decision in Ginger's favor.

To recapitulate, the judge provided three reasons for ruling in Ginger's favor: the elimination of the "best price attainable" language from all drafts of the PSA after the first; James's refusal to pay for repairs to the house after the parties' 1996 divorce unless ordered to do so; and Ginger's agreement to accept a modest non-modifiable alimony award of $100 per week, which the judge found she had done in exchange for freezing the value of the house at its 1996 level. We have already discussed flaws in each of these three reasons.

However, even if we were to ignore those flaws, we have pointed to a number of factors in James's favor that are at least as weighty as those favoring Ginger's position. Those factors are: Ginger's failure to call Schuler as a witness; the absence of any letters, documents or conversation from one lawyer to the other discussing the use of the 1996 value; the elimination from the third draft and the final draft of the PSA of language specifying that at the time of the divorce Ginger would give James a mortgage in the amount of one-half the 1996 equity in the house; the incongruity between using the 1996 value for an interspousal sale but using fair market value in a third-party sale; Ginger's failure to assert that she exchanged alimony for the right to use the 1996 valuation until four years of litigation had already passed; and Ginger's failure to insist that the language about using the 1996 value be included in the PSA.

After a qualitative weighing of the factors in each party's favor, we conclude that, at best, those favoring James are of a weight equal to those favoring Ginger. Consequently, Ginger has not satisfied her burden of proof. The Court held that Ginger should bear the burden of proof because she is the one "attempting to exclude $137,000 worth of marital property from distribution." Pacifico, supra, 190 N.J. at 269. As the Court directed, if Ginger does not satisfy her burden or the evidence is in equipoise, her application must fail. Ibid. The evidence is at best in equipoise. Therefore, James must prevail.

We thus reverse and remand this matter to the Family Part for the entry of an order establishing the 2003 value of $304,000 as the prevailing value for purposes of any buy-out by one party of the other party's equity in the marital home.

 
Reversed and remanded.

Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-C to R. 5:6A at 1867 (1997).

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