ELLEN HALL MARTIGNETTI v. CHRISTOPHER MARTIGNETTI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2306-07T3

ELLEN HALL MARTIGNETTI,

Plaintiff-Respondent/

Cross-Appellant,

v.

CHRISTOPHER MARTIGNETTI,

Defendant-Appellant/

Cross-Respondent.

__________________________________________________________

December 29, 2010

 

Argued December 2, 2009 - Decided

Before Judges Graves, J.N. Harris and Newman.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Somerset

County, Docket No. FM-18-427-05.

James P. Yudes argued the cause for appellant/

cross-respondent (James P. Yudes, P.C., attorneys;

Mr. Yudes and Kevin M. Mazza, on the brief).

Gina M. Sorge argued the cause for respondent/

cross-appellant (Lum, Drasco & Positan, LLC,

attorneys; Ms. Sorge, of counsel; Ms. Sorge and

Jessica L. Di Bianca, on the brief).

PER CURIAM

Plaintiff Ellen Hall Martignetti and defendant Christopher Martignetti were married on August 28, 1998. One child was born of the marriage, a daughter, who is now eleven years old. Plaintiff's complaint for divorce was filed on October 8, 2004. The matter was tried between January 2006 and May 2007, and a dual judgment of divorce (JOD) was entered on October 5, 2007. The trial court set forth its findings of fact and conclusions of law in a forty-nine-page written decision. Defendant appeals and plaintiff cross-appeals from several portions of the final judgment and from post-judgment orders entered on December 14, 2007, and May 9, 2008. For the reasons that follow, we affirm in part and reverse and remand in part.

Plaintiff was thirty-eight years old when she met defendant in the Summer of 1997. Plaintiff and her first husband, Gary McCulla, separated in 1995, and she was residing in Branchburg, New Jersey, with her two daughters from that marriage.

Plaintiff is a college graduate with a degree in business management and a paralegal certificate. She also took some graduate courses in business but did not obtain a graduate degree. Plaintiff worked in the accounting department for a drug company until her first child was born in 1986. She was subsequently part owner and manager of a gym. However, plaintiff was not employed when the parties met, and she did not work outside of the home during their marriage.

Plaintiff testified she believed defendant was "financially successful" when she met him because he told her that he earned a yearly salary of $100,000 to $150,000 from a trucking company he owned and that he had received a $250,000 settlement from a work-related injury. In addition, plaintiff testified defendant lived in a "beautifully furnished" apartment in Westfield, New Jersey, drove a Mercedes Benz, and took her to nice restaurants and shows in New York City and Atlantic City.

On the other hand, defendant said he was not making "much at all" when he met plaintiff because he and his father were "still developing" a trucking business they had started. According to defendant, he has "only a high school education" and his "entire career has been spent as a truck driver." Defendant testified he was earning about $500 to $600 a week when he met plaintiff, and his income from the trucking business "stayed the same because we were trying to build, buying more trucks and getting bigger."

With regard to his trucking company, defendant testified as follows:

Q. So according to your testimony you were just starting up 21st Trucking Company, correct?

 

A. 21st Trucking Company, right.

 

. . . .

 

Q. In 1997.

 

A. Right.

 

Q. And when you incorporated 21st Trucking Company in October 1998 you were the sole shareholder, correct?

 

A. Yes. Yes, I was.

 

Q. But you were working with your father.

 

A. Yes.

 

Q. But you were the only one who owned any shares of the company, correct?

 

A. Yes.

 

Q. Now, what was the nature of the business of 21st Trucking Company?

 

A. 21st Trucking Company would go to the pier and pick up containers, overseas containers, and deliver them in the tri-state area.

 

. . . .

 

Q. And that business was in operation for a period of approximately five years, correct?

 

. . . .

 

A. Approximately five years. I would go with that.

 

Q. Okay. So . . . you would agree then that this was the business that was in operation through the majority of your marriage.

 

A. Yes, yes.

 

Q. And would it be fair to say, sir, that during the course of your marriage this business was growing?

 

A. Yes.

 

Q. And . . . again, turning back to when you first just started back in July of 1997, between July 1997 and August of 1998 did the business grow?

 

. . . .

 

A. Well . . . it wasn't incorporated yet, but yes, we were setting things up and I'm going and getting accounts. And, you know, my dad had the one truck, and then . . . me and Ellen bought two more trucks and, you know, we started it slowly.

 

When plaintiff and defendant began dating, plaintiff was in the process of negotiating a property settlement agreement with her first husband, and she was looking for a new home for herself and her two children. In September 1997, defendant's mother told plaintiff about a house in Warren, New Jersey, and plaintiff contracted to purchase the home for $765,000. The closing was scheduled to take place in November 1997. Plaintiff testified her attorney had passed away and defendant recommended his attorney, Jeffrey Shapiro, Esq.

Plaintiff purchased the home on November 28, 1997, using funds advanced by her first husband in anticipation of their divorce settlement. Defendant attended the closing with plaintiff, but he was not a party to the transaction and the deed identified plaintiff as the sole owner of the property.

Following the closing, defendant and his father helped plaintiff and her daughters move into the home. Defendant said he moved in the following day. However, plaintiff testified defendant began living at the Warren home in December 1997 after the lease on his apartment expired. In any event, when asked how the parties allocated their expenses while living together, defendant testified: "[Plaintiff] used to get the bills and go upstairs and pay everything on the computer."

In February 1998, plaintiff and defendant obtained a $60,000 line of credit, which was secured by a mortgage on the Warren home. They both signed for the loan and agreed to be individually responsible for the funds they used. Plaintiff testified she used the line of credit to make improvements to the home, and she paid her portion of the debt in full.

Defendant continued to use the line of credit, however. At trial, defendant conceded that he utilized the funds in connection with his trucking company: "[W]e bought two trucks like two or three years later and they were $25,000 a piece, so that would be about $50,000. But I don't remember taking the whole $50,000 from the credit line. I don't know how we got the money but we did it." At the time of trial, the credit line had an outstanding balance of approximately $55,000.

Plaintiff and her first husband finalized their divorce on March 24, 1998. Pursuant to their property settlement agreement, plaintiff received $7.4 million. In addition, the agreement provided that plaintiff would retain all furniture and jewelry in her possession, and she would receive child support for the two minor children of the marriage in the amount of $3000 per month.

Plaintiff placed her divorce settlement funds in a brokerage account managed by Condor Capital. Plaintiff testified she received approximately $10,000 per month from the brokerage account, but she also acknowledged withdrawing additional amounts from the account for home improvements and various other expenses.

Plaintiff testified defendant never deposited any monies into her brokerage account and denied that defendant had any involvement in managing her investments. When defendant was questioned regarding the account, he acknowledged he never had any direct conversations with the account manager but said he "would watch the stock market daily" and "was watching Condor, you know, just making sure everything was okay."

In the Spring of 1998, plaintiff began making substantial improvements to the Warren home. The improvements included various landscaping projects, installing new doors and "built-ins in the closets," and completing the basement. Plaintiff testified that she paid for all of the improvements with money from her brokerage account, and that it cost approximately $150,000 to finish the basement.

Defendant claimed he and his family and friends did most of the work, particularly on the basement and landscaping. The parties disagreed, however, on the extent of defendant's involvement. Plaintiff said she gave defendant cash and checks "to pay people," but she denied that defendant did any of the work himself.

Although the parties resided together in the Warren home, plaintiff said she "did not plan on getting married" and was surprised when defendant proposed in June 1998. Prior to the marriage, which took place on August 28, 1998, plaintiff testified she had a discussion with defendant regarding the Warren home and told him "this is my home with the girls." According to plaintiff, defendant "a hundred percent agreed," and the parties further agreed as follows:

And when we live [here], we live separately as far as finances are concerned because Chris owned and operated a trucking company. Chris said he had a home down in Florida. He had his own assets. They were kept separate, and that's how we agreed to run everything. This is my home. I take care of this home. I take care of my expenses and the home expenses.

 

And this is Chris' business. This is his income. He takes care of his expenses, his bills or whatever. This is how things were treated.

 

On February 1, 1999, plaintiff executed various estate planning documents, including a will that left most of her estate to her daughters. None of the documents mentioned defendant.

A few weeks later, on February 13, 1999, plaintiff made an offer to purchase a home on Long Beach Island (LBI) for $597,500, and the offer was accepted. Plaintiff withdrew the funds to purchase the home from her brokerage account, and the deed identified plaintiff as the sole owner of the property.

Plaintiff also withdrew funds from her brokerage account to pay for improvements to the LBI home. Plaintiff testified the bulkhead was replaced, the property was landscaped, a loft was built in the garage, and new kitchen appliances were installed. Once again, the extent of defendant's involvement with the improvements was disputed. In a pretrial certification, and at trial, defendant stated that he personally performed many of the improvements:

I helped build a huge loft in the garage. I painted the garage floor and installed shelving to hang the bicycles and organize the garage. I performed a great deal of the landscaping myself. I bought and paid for four truckloads of topsoil and spread it out all around the property and had [four] loads of stones spread out around the property. I cut down twenty-two fifty foot pine trees all around the property and grinded out the roots. My cousin and I insulated the pipes. I installed the outdoor floodlights and the water system in the back. I put all new vents underneath the house. I maintained the decks and bulkheads every year (power washing and staining them). I participated with the plaintiff in furnishing and decorating the home and did many other things.

 

The parties' daughter was born on September 27, 1999. On the first day of trial, the parties agreed to joint legal custody of their daughter and a shared physical custody arrangement. However, they were unable to reach an agreement on child support, and that issue was decided by the trial court.

Plaintiff testified defendant began demanding that she add him to her estate plan and that she place the deed to the Warren home in both their names as joint owners after their daughter was born. In addition, she claimed she received demanding letters from James Yudes, Esq., defendant's attorney, regarding her estate plan and the Warren home.

In support of her claim, plaintiff produced copies of letters that Yudes wrote to Steven L. Friedman, Esq., the attorney who prepared plaintiff's 1999 estate plan. In a letter dated January 4, 2002, Yudes claimed he had written to Friedman "on several occasions" with no response:

Dear Mr. Friedman:

 

I have written to you on several occasions with regard to the above captioned matter to determine whether or not your client has done what she promised her husband she would do concerning her estate and the current transfer of property to my client. To date, I have not received any response from you.

 

As my client believes he and his wife were working towards a good faith resolution of economic issues between them, I had hoped to receive some cooperation from you.

 

My client's wife reported to him that she has sat down with you and that you do have a response. Would you like to share it with me? Would you like to sit down with me to discuss this matter or would you like to simply ignore my letters?

 

Please advise.

 

On May 23, 2002, plaintiff executed a revised estate plan. When asked why she revised the plan, she said she "was being forced by Chris and Mr. Yudes" to make changes to her estate. Plaintiff's revised estate plan complied with the elective share law, N.J.S.A. 3B:8-1 to -19, and Friedman testified he drafted the plan in accordance with plaintiff's wishes.

Defendant testified that in June 2003 he received a copy of plaintiff's revised estate plan and reviewed it with Yudes. He was unhappy with the plan because he expected to receive more than the elective share, and because he thought the plan would place title to the Warren home in his and plaintiff's names.

On June 4, 2003, Yudes wrote to Friedman, expressing defendant's disappointment:

Dear Mr. Friedman:

 

As you know, I represent Chris Martignetti who is the husband of Ellen Hall. Mr. Martignetti has recently given me the Estate Planning Portfolio for Ellen Hall dated July 12, 2002. Your client represents that she received this document from your office approximately three (3) months ago.

 

My client had an understanding with his wife that certain things would be done to protect him both during his wife's lifetime and upon death. My client understood that the Warren home would be transferred into their joint names. He further understood that the estate plan would protect him and provide him with more [than] the minimum amount allowed by law.

 

. . . .

 

I must further note that my client is very disappointed by the fact that your reference to his entitlements on death of his wife are limited to an elective share subject to defeasance for all the [bases] for which an elective share can be lost. My client understands how fragile the provisions in the Will are as it relates to him and would like to see a more robust commitment.

 

Equally disturbing is the fact that my client is not trusted by his wife to be the first one to make decisions for his wife's health in the eventuality of sickness. I have explained to my client that as you have written the Power of Attorney, my client would have to call his mother-in-law to the hospital in the eventuality that his wife became ill as he has no authority to authorize treatment for his wife as that power has been passed to his mother-in-law by the documents that you have prepared.

 

I would like to be advised by return mail when Mrs. Hall will make the transfer of the marital home in the joint names and when she will revise the Will to recognize her promises to her husband to take better care of him [than] the minimum amount allowed by law.

 

Defendant testified that Friedman did not respond to the letter from Yudes. Nevertheless, defendant said he spoke to plaintiff and she agreed to transfer the Warren home into joint names. According to defendant, plaintiff agreed that Jeffrey Shapiro would prepare the deed, and defendant drove plaintiff to Shapiro's office on July 15, 2003. Although Shapiro's law firm had represented defendant in other matters, defendant testified: "Mr. Shapiro was not my lawyer. . . . He was both our lawyers to get something done, to get the deed done."

Plaintiff stated she had "heated discussions" with defendant about the Warren house before she finally agreed to transfer the deed:

They were heated discussions with Mr. Martignetti threatening to take [our daughter] away. I just lost my father. I was in the process of planning an anniversary for my father's one year anniversary, which was the following month, on August 5th.

I did it. I broke. I couldn't do it. I couldn't fight anymore. I was afraid I was going to lose my family. I lost my dad. I was afraid he was going to take [our daughter].

He threatened over the years even as far as taking [my other children]. He told me he'd take my kids, all of them, and bury me and their pet, and the threats were repeated year after year after year.

 

Plaintiff testified she was angry and upset when she went to Shapiro's office:

I was angry, upset. Went down to Mr. Shapiro's office. Clear that I was angry. I signed it, and I stormed out and I slammed his door and refused to get in Chris' car in the parking lot. He told me: Oh, no calm down, calm down. Don't make a scene. Get in the car. Now I'll treat you the way you should be treated.

 

Shapiro confirmed he met with plaintiff and defendant in his office on July 15, 2003, and he explained to plaintiff that the deed he prepared would transfer the Warren home "from herself to herself and Christopher as husband and wife and that she would need to sign the deed and an affidavit of consideration." Shapiro also testified as follows:

Q. What if anything did Ms. Hall say . . . at that time?

 

A. I don't recall exactly what she said but she seemed hesitant to sign the deed at the time.

 

Q. And what observations did you make of her at that time?

 

A. She seemed upset.

 

Q. Did you have any further conversations with her . . . ?

 

A. Yes. I told her that if she felt uncomfortable or unsure about signing the papers that she did not have to do so.

 

Q. And was Mr. Martignetti present when you made those statements?

 

A. Yes.

 

Q. And did you make any other statements to her at that time?

 

A. . . . I don't know if I said anything to them, but at that point they went outside.

 

Q. And . . . can you estimate how long it was that they were outside?

 

A. I would say five to ten minutes.

 

Q. And what happened next?

 

A. Next they came back in and at this time Ellen came in to my office and I spoke with her alone and I asked her if she wanted to sign the deed and if she understood what the deed said and she said, yes, I want to sign it.

 

Q. And what observations did you make of Ellen at that time if any?

 

A. At that time I felt that she was aware of what she was signing and that she was signing it voluntarily.

 

Q. Did she appear happy?

 

A. I wouldn't say happy, no.

 

Q. Did she appear angry?

 

A. I don't think she was angry.

 

. . . .

 

Q. After you had this conversation with Ms. Hall, what happened next?

 

A. I told Ms. Hall that I would hold the deed before recording it in case she decided to change her mind.

 

Q. And what did Ms. Hall say at that time if anything?

 

A. I think she just agreed with that.

 

Q. Did you hear from Ms. Hall again after that point?

 

A. I believe I spoke with her a day or two later to make sure that she wanted to go ahead and record the deed and then I went ahead and recorded it after speaking with her.

 

During cross-examination, defendant admitted he had other assets transferred from joint names into his name "within one week" after plaintiff signed the deed on July 15, 2003. Specifically, defendant acknowledged that he had certificates of title to a boat, a Jeep, and a Mercedes Benz, transferred from joint names into his name only.

The state of the parties' relationship after July 15, 2003, until the time that they separated, is unclear from the record, and the parties disagree on the date they separated. According to plaintiff, she told defendant to leave the Warren home on March 13, 2004, and he left two days later. Defendant testified, however, that he moved out of the Warren home sometime in August 2004.

Prior to trial, the parties had the Warren and LBI homes appraised. In June 2005, the Warren home was valued at $1,475,000, and the LBI home was valued at $1,485,000. In November 2005, an appraisal indicated that the value of the personal property located in both homes was $61,230.

The trial took place on non-consecutive days between January 17, 2006 and May 23, 2007. On October 5, 2007, the trial court entered a dual JOD and set forth its factual findings and legal conclusions in a forty-nine-page written decision.

The court found the deed plaintiff signed on July 15, 2003, was "the product of coercion and duress," and the Warren and LBI homes were awarded to plaintiff as her sole property together with "all remaining furnishing[s]." However, defendant was permitted to obtain any personal or premarital property that was still in plaintiff's possession, and he was awarded twenty percent of the increased value of the Warren home ($142,000) and fifteen percent of the increased value of the LBI home ($133,125). The court also ruled that plaintiff's brokerage account would remain "her sole and individual property." With regard to the credit line debt, the court ordered plaintiff to repay the outstanding balance, but she received "a credit of $55,000 against any equitable distribution owed to Defendant for repayment of the home equity funds Defendant used."

In addition to receiving a portion of the increased value of the two homes, defendant was awarded the Mercedes Benz, the boat, and three wave runners. The court also ruled that defendant did not have to repay any portion of the $120,000 that plaintiff loaned to him in 1998 because the court could not "determine the intentions of the parties with respect to [those] funds or to what extent payments were made."

The court also noted defendant had requested alimony based on his claim he was "disabled due to an accident prior to the marriage." However, the court rejected defendant's disability claim because he failed to present any expert testimony to support it. Moreover, the court found defendant's testimony regarding his claimed disability was inconsistent with his testimony that he was personally responsible for making substantial improvements to both the Warren and LBI properties. The court also denied defendant's request for counsel fees.

With respect to child support, the court ordered plaintiff to pay defendant $207 per week and fifty-four percent of the child's summer camp, extracurricular activities, and unreimbursed medical expenses. Defendant was responsible for the remaining forty-six percent. In addition, the court determined that plaintiff's child support obligation would be retroactive to December 17, 2004, based on defendant's motion for pendente lite support. Therefore, defendant received a credit for child support in the amount of $30,015 ($207 per week x 145 weeks = $30,015).

As previously noted, the parties reached an agreement regarding custody and parenting time with their daughter on the first day of trial. Nevertheless, they were unable to agree on the form of a consent order, and plaintiff filed a post-judgment motion to finalize those issues. In an order dated December 7, 2007, the parties were awarded "joint legal and joint physical custody of the unemancipated child of the marriage." The order further specified that each parent would have seven overnights in every fourteen-day cycle, and that the parties would otherwise equally share parenting time.

Plaintiff also filed a post-judgment motion for reconsideration of the court's retroactive child support award. In a certification in support of the motion, plaintiff asked the court to modify the date of the retroactive award "from December 17, 2004 to January 17, 2006, the first day of trial. This would reduce the child support credit [defendant] is entitled to from $30,015 to approximately $7,866."

Defendant opposed plaintiff's motion and filed a cross-motion for reconsideration of the equitable distribution, alimony, child support, and counsel fee decisions. With respect to child support, defendant primarily argued that he and plaintiff had agreed that neither one of them would be designated a parent of primary residence (PPR). Nevertheless, the court had designated plaintiff the PPR in computing support and that decreased the amount of her support obligation.

On December 16, 2007, the court entered an order increasing plaintiff's child support obligation to $327. The order provided that defendant would receive $207 of that amount and the rest would be held in escrow by the probation department until defendant produced proof of his and plaintiff's alleged agreement that neither would be designated the PPR.

After considering additional submissions, the court found that "Plaintiff and Defendant are both the PPR as a result of their shared time, expenses and [parenting] responsibilities," and there was "no appropriate reason to solely designate Plaintiff as PPR." Accordingly, the court ordered plaintiff to pay child support in the amount of $327 per week, and the probation department was directed to release the escrow funds to defendant.

On appeal, defendant presents the following arguments for our consideration:

POINT I

 

THE TRIAL COURT ERRED IN FAILING TO AWARD THE DEFENDANT ALIMONY.

 

POINT II

 

THE TRIAL COURT ERRED IN ITS CALCULATION OF CHILD SUPPORT INCLUDING THE INCORRECT IMPUTATION OF INCOMES, AND THE FAILURE TO PROPERLY APPLY THE REQUISITE STATUTORY FACTORS.

 

POINT III

 

THE TRIAL COURT ERRED IN ITS ALLOCATION OF THE CHILD'S SUMMER CAMP, EXTRACURRICULAR ACTIVITIES AND UNREIMBURSED MEDICAL EXPENSES.

 

POINT IV

 

THE TRIAL COURT ERRED IN ITS APPORTIONMENT OF THE HOME EQUITY CREDIT LINE ENTIRELY TO THE DEFENDANT.

 

POINT V

 

THE TRIAL COURT ERRED IN FAILING TO EQUITABLY DISTRIBUTE THE PARTIES['] PERSONAL PROPERTY.

 

POINT VI

 

THE TRIAL [COURT] ABUSED ITS DISCRETION IN DISTRIBUTING TO THE PLAINTIFF 100% OF HER BROKERAGE ACCOUNT.

 

POINT VII

 

THE TRIAL COURT ERRED IN FINDING THAT THE CONVEYANCE OF AN EQUAL INTEREST IN THE MARITAL HOME TO DEFENDANT WAS THE PRODUCT OF DURESS.

 

POINT VIII

 

THE TRIAL COURT ERRED IN DETERMINING THAT THE WARREN HOME WAS NOT PURCHASED IN CONTEMPLATION OF MARRIAGE, AWARDING SAME SOLELY TO THE PLAINTIFF AND LIMITING DEFENDANT'S ENTITLEMENT TO 20% OF ITS APPRECIATED VALUE.

 

POINT IX

 

THE TRIAL COURT ERRED IN AWARDING THE LONG BEACH ISLAND HOME ACQUIRED DURING THE MARRIAGE SOLELY TO THE PLAINTIFF, AND LIMITING THE DEFENDANT'S ENTITLEMENT THEREIN TO 15% OF THE APPRECIATED VALUE OF THE PROPERTY.

 

POINT X

 

THE TRIAL COURT ERRED IN REFUSING TO AWARD COUNSEL FEES TO THE DEFENDANT.

In addition, plaintiff presents these points in her cross-appeal:1

POINT IX

 

AS TO THE CROSS-APPEAL, THE TRIAL COURT ERRONEOUSLY ENTERED A JUDGMENT AWARD OF RETROACTIVE CHILD SUPPORT PURSUANT TO ITS MISTAKEN FINDING THAT DEFENDANT SOUGHT AN AWARD OF SUPPORT IN OR ABOUT DECEMBER 17, 2004, AND FURTHER ERRED IN DENYING [PLAINTIFF'S] MOTION FOR RECONSIDERATION.

 

POINT X

 

THE TRIAL COURT ORDERS MODIFYING THE OCTOBER 5, 2007 CHILD SUPPORT JUDGMENT AWARD WERE ENTERED IN ERROR.

 

A. WHERE THE OCTOBER 5, 2007 CHILD SUPPORT JUDGMENT AWARD CORRECTLY DESIGNATED [PLAINTIFF] AS THE PARENT OF THE PRIMARY RESIDENCE (PPR) IN THE CALCULATION OF CHILD SUPPORT, THE COURT'S DECEMBER 14, 2007 ORDER AWARDING DEFENDANT RECONSIDERATION AND MODIFICATION WAS ERRONEOUS.

 

B. WHERE THE DECEMBER 14, 2007 GRANT OF RECONSIDERATION AND MODIFICATION OF THE JUDGMENT AWARD OF CHILD SUPPORT WAS PREDICATED UPON PROOF OF THE PARTIES' AGREEMENT THAT NEITHER PARENT WOULD BE DESIGNATED AS PPR FOR PURPOSES OF CALCULATING CHILD SUPPORT AND THE RECORD REFLECTS THAT SUCH AGREEMENT DOES NOT EXIST, RECONSIDERATION SHOULD HAVE BEEN DENIED.

 

POINT XI

 

THE TRIAL COURT'S MAY 9, 2008 FINDINGS MODIFYING AND INCREASING PLAINTIFF'S CHILD SUPPORT OBLIGATION IS UNSUPPORTED BY EVIDENCE AND APPLICABLE LAW.

 

A. AS THE DECEMBER 17, 2007 ORDER DIRECTED THE JOD CHILD SUPPORT AWARD ONLY UPON DEFENDANT'S PRESENTATION OF PROOF OF THE PARTIES' AGREEMENT AS TO NON-DESIGNATION OF A PPR, THE ABSENCE OF SUCH PROOF REQUIRED DENIAL OF SAID RELIEF.

 

B. WHERE THE TRIAL COURT MODIFICATION OF THE OCTOBER 5, 2007 JUDGMENT AWARD OF CHILD SUPPORT DUPLICATED THE CONTROLLED EXPENSES, WHICH DUPLICATION INCREASED [PLAINTIFF'S] CHILD SUPPORT OBLIGATION, THE MAY 9, 2008 ORDER MUST BE VACATED AND REVERSED.

 

C. THE COURT MISAPPLIED THE CHILD SUPPORT GUIDELINES IN ITS MAY 9, 2008 CALCULATIONS.

 

POINT XII

 

THE RETROACTIVE APPLICATION OF THE MAY 9, 2008 ORDER IS UNSUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE WARRANTING THE VACATION OF SAME.

 

In his first point, defendant argues that the trial court's refusal to award him alimony "was clearly in error, was an abuse of discretion, was contrary to the law and must be reversed." Courts are permitted to award alimony "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just." N.J.S.A. 2A:34-23. To reverse a trial court's finding regarding alimony "we must conclude that the trial court clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken." Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).

In its written decision on October 5, 2007, the trial court examined each of the statutory factors set forth in N.J.S.A. 2A:34-23. The court found that the parties enjoyed "a very comfortable lifestyle," but defendant "did very little, if anything, to contribute to that lifestyle." The court also determined that defendant failed to establish a need for alimony:

Defendant's genuine income is difficult to ascertain with any certainty. He testified that he earns between $500 to $600 per week driving a truck. Prior to and throughout the course of the marriage, Defendant was the owner of a trucking company called Twenty First Trucking. He drew $500 per week in salary. However, Defendant did not file any income tax returns throughout the years of the marriage. There is little, if any, documentation of Defendant's earnings during that period or prior to the marriage. . . .

 

He alleges that he is disabled due to an accident prior to the marriage. He required surgery and now has pins/wires in his neck. Defendant did not present any expert testimony with respect to his claim that he is disabled. He submitted an X-ray which reflects the pins and wires in his neck, but in the absence of expert testimony, this Court cannot discern what the effect of Defendant's injury is on his ability to work.

 

. . . .

 

His claimed disability is fraught with many other questions. For instance, Defendant claims to have done very substantial physical labor to improve both the Warren and Long Beach Island properties. According to Defendant, he dug ditches, built a retaining wall, cut down trees, refinished a basement, hung drywall, and painted, to name a few. Defendant's credibility is questionable. It seems disability in support of his alimony claim and "sweat equity" in support of his equitable distribution claim stand in direct contradiction of each other.

 

Additionally, the Court questions Defendant's credibility with respect to his income and assets. Defendant had not filed a personal tax return in many years and whether the returns he presented at the end of the trial were actually filed was not confirmed by Defendant who answered he "believes" so. He claims to be barely able to make ends meet. He claims he has earned approximately $500 per week before, during and after the marriage, yet he paid $13,000 for Plaintiff's engagement ring.

 

. . . .

 

. . . Defendant claimed that Twenty First Trucking was defunct and that C&E Holding Co., which owned the trucks, had sold them. When he was confronted with invoices for EZ Pass violations dated April 21, 2006 for one of the trucks, he changed his story. He then recalled that C&E Holding Co. still owns one truck. Given that there is an outstanding amount of $17,000 in EZ Pass violations related to use of this truck, the Court finds it more likely than not that Defendant is driving it and potentially earning additional income. Defendant did not produce any current bank statements. The Court continues to question the location of the $250,000 Defendant received in a settlement in or around 1996. Also, although Defendant denies being in the import export business, he is the sole shareholder in a company known as Twenty First Century Trading, Co.

 

Plaintiff submitted three (3) personal ads Defendant has posted on internet dating sites stating that he earns $150,000 per year. She also claims he told her, prior to marriage, that he earned $150,000 per year. However, the court gives no weight to this evidence. While Defendant certainly made claims of earning $150,000 per year in the ads, the reliability of this information is greatly suspect.

 

What the Court does give weight to in terms of credibility is Defendant's resume. While distasteful, the Court is aware of the common occurrence of some "puffery" on resumes. However, Defendant admits that he included on his resume, which he submitted to employers, jobs that he never held and companies that do not exist.

 

As the Court does not find Defendant credible, it does not accept that he earns only $500 per week.

 

[Citations to exhibits omitted.]

 

"We give deference to a trial judge's findings as to [the] issue of alimony, if those findings are supported by substantial credible evidence in the record as a whole." Reid v. Reid, 310 N.J. Super. 12, 22 (App. Div.), certif. denied, 154 N.J. 608 (1998). Moreover, "[d]eference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We have examined the record in light of these principles and conclude that the trial judge's findings and credibility assessments are supported by substantial credible evidence. Accordingly, we find no error or mistaken exercise of discretion by the trial judge in denying defendant's alimony request.

We next address the alleged errors in the equitable distribution provisions of the JOD. As the New Jersey Supreme Court has recognized, to equitably distribute marital property, courts "must first decide what specific property of each spouse is eligible for distribution." Rothman v. Rothman, 65 N.J. 219, 232 (1974). The burden of establishing that a particular asset is immune from equitable distribution rests upon the party asserting it. Painter v. Painter, 65 N.J. 196, 214 (1974). After the court identifies the property eligible for equitable distribution, it must then determine the value of the property and consider the factors enumerated in N.J.S.A. 2A:34-23.1 in reaching an equitable distribution decision. Rothman, supra, 65 N.J. at 232; see also N.J.S.A. 2A:34-23.1 (requiring "specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution").

When reviewing equitable distribution decisions, our task is "to determine whether the court has abused its decision." La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). We must decide "whether the result could reasonably have been reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence." Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978).

Generally, "property owned by a husband or wife at the time of marriage will remain the separate property of such spouse and in the event of divorce will be considered an immune asset and not eligible for distribution." Valentino v. Valentino, 309 N.J. Super. 334, 338 (App. Div. 1998) (citing Painter, supra, 65 N.J. at 214). However, when property is purchased in contemplation of marriage and the parties have adequately expressed their intention to create a marital partnership prior to the marriage ceremony, the property will be subject to equitable distribution. Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div.), certif. denied, 114 N.J. 287 (1988); accord Berrie v. Berrie, 252 N.J. Super. 635, 646 (App. Div. 1991). In addition, if the premarital property appreciates in value and the non-owner spouse contributes to the appreciation, then the non-owner spouse will be entitled to share in the increased value to the extent that his or her efforts contributed to that increase. Valentino, supra, 309 N.J. Super. at 338.

In this case, defendant does not dispute that plaintiff's brokerage account was a premarital asset. Nevertheless, he contends the trial court erred when it found that he was not entitled to share in its appreciated value. The trial judge's findings regarding this issue were as follows:

While it is true that Defendant was keenly interested in the account and tracked the investments on his computer, he had absolutely no effect upon the value of that account. The gains and/or losses experienced in the account were due to a combination of market forces and the broker's efforts. Plaintiff did not rely upon Defendant to manage the account, she relied upon her broker. Moreover, when Defendant attempted to insinuate himself into the management and control of the account, he was rebuffed by the broker and by Plaintiff. Plaintiff never authorized the broker to speak with Defendant outside her presence. . . . [T]here is nothing in this record to suggest that Defendant was vested with decision making authority.

 

During cross-examination of Plaintiff, there were repeated attempts to have the Court draw an inference that somehow Defendant was responsible for the gains in Plaintiff's brokerage account and associated trusts. However . . . there is no affirmative evidence that the deposits into the account came from any source other than her divorce settlement which was paid over a period of time nor that the increases in account value had anything to do with Defendant.

 

Defendant cannot and does not point to even one instance in which he managed the assets in the account and caused them to increase. His claim to have been actively managing the account is nothing short of incredible.

 

On appeal, defendant advances the same arguments that he made to the trial court. He claims he was "heavily involved" with the brokerage account and that he is entitled to share in the "aggregate appreciation in the account during the course of the marriage." We do not agree. Based on our review of the record, we are satisfied the trial court's findings and conclusions regarding plaintiff's brokerage account are supported by substantial credible evidence. As the court correctly concluded, defendant failed to establish that plaintiff's premarital asset appreciated due to his efforts.

In his seventh point, defendant argues "the July 15, 2003 deed transferring title of the Warren property into joint name[s] should have been upheld as a valid gift between the parties." The trial court's findings with regard to this issue included the following:

In determining whether the transfer of title is valid and binding or whether it was the product of coercion and duress and therefore void, the Court must look to the actions of the parties.

 

The issue of transfer was initiated by Defendant approximately one (1) year after the marriage and shortly after the birth of their child. What might ordinarily be a marital dispute or ongoing argument between spouses was drastically escalated when Defendant hired an attorney to write letters to Plaintiff and her estate attorney demanding what he believed to be his "right" - that is ownership of the Warren home.

 

These demands were ongoing for years. The fact that Defendant felt it necessary to hire an attorney to write letters to his wife reflects clearly that Plaintiff did not want to transfer title and was not agreeing to do so.

 

Hiring a family law attorney, Mr. Yudes, was designed as a clear message to Plaintiff that if she did not transfer the property, Defendant would make good on his promise to divorce her and take [their daughter] away. Hiring a divorce attorney in the midst of what appeared to be a viable, ongoing marriage and shortly after the birth of the parties' child, is extraordinary and could serve no other purpose but to attempt to intimidate Plaintiff.

 

Defendant did not let up. He continued to authorize letters from Mr. Yudes from 2000 through 2003. For three (3) years he demanded by way of his attorney and directly to Plaintiff that she transfer ownership.

 

Not only was Defendant attempting to benefit himself by compelling Plaintiff to transfer ownership of the Warren home to him and her, but he sought to further insert himself into her financial affairs by insisting upon reviewing her estate plan.

 

. . . .

 

The events and circumstances surrounding Plaintiff's modification of the estate documents lends further credence to Plaintiff's claim of coercion and duress. Other than Defendant's right to an elective share of Plaintiff's estate, if he were married to her at the time of her death, Defendant had no clear or articulable right or interest in her estate.

 

Yet, he hired Mr. Yudes, in part, to compel Plaintiff to make certain provisions for him. Notably there is [an] absence of any testimony or documentary evidence reflecting that Defendant drew a will to benefit Plaintiff beyond her elective share in the event of his death. Accordingly, this was not an instance of two spouses coordinating estate plans. This was simply Defendant, quite aggressively, attempting to secure financial security for himself and to exercise control over Plaintiff's finances and money. This point is further emphasized by Defendant's "objection" to Plaintiff's leaving her money, none of which was acquired with Defendant, to her sister.

 

Once Plaintiff could no longer resist the relentless demands by Defendant that she transfer the property, Defendant sprang into action. He made contact with Shapiro to explain what "Plaintiff" wanted to do. Shapiro and his partner were Defendant's prior counsel. He drove Plaintiff to Shapiro's office and accompanied her to the closing table. Plaintiff was clearly resisting Defendant's efforts to have her transfer the property right up to the time she finally signed the deed. Additionally, it is unrebutted that Plaintiff did not pay Shapiro['s] fee, leaving this Court to conclude that Defendant paid the lawyer and filing fees.

 

. . . .

 

Here the facts present clear and convincing evidence that Plaintiff did not sign the deed voluntarily, she was coerced and under duress and Defendant used the threat of dissolution of the marriage through direct threat and by implication by hiring a prominent divorce attorney to make the demands on his behalf. These facts also diminish any argument that the transfer was a gift. A gift requires donative intent which does not exist in this case. Hill v. Warner, Berman & Spitz, P.A., 197 N.J. Super. 152 (App. Div. 1984).

 

Findings by a trial court are binding on appeal "when supported by adequate, substantial, credible evidence." Cesare supra, 154 N.J. at 412 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). In the present matter, after carefully considering the evidence, the trial court found by clear and convincing evidence that the deed dated July 15, 2003, was void because it was "the product of coercion and duress." Based on our review of the record, we are satisfied the trial court's findings are supported by substantial credible evidence and the issue was correctly decided.

Defendant also claims that: (1) the Warren home should have been equitably distributed because it was purchased in contemplation of marriage; (2) he was entitled to more than twenty percent of the Warren home's appreciated value and fifteen percent of the LBI home's increased value; (3) the court abused its discretion in allocating the entire line of credit debt to him because the funds were used "for joint and marital purposes"; and (4) the court erred in failing to award him any of the personal property acquired during the marriage. Each of these issues was thoroughly considered by the trial court and the court's detailed findings of fact are adequately supported by the evidence. R. 2:11-3(e)(1)(A). Because we find no legal error or abuse of discretion, we affirm the trial court's rulings as to these matters.

Both parties challenge the court's child support award. Defendant contends the court failed to correct "fundamental flaws" in the original decision, which required plaintiff to pay child support in the amount of $207 per week and defendant to pay forty-six percent of their child's "summer camp, extracurricular activities agreed upon by the parties and unreimbursed medical expenses."

In her cross-appeal, plaintiff argues the court erred by: (1) making her child support obligation retroactive and awarding defendant a child support credit in the amount of $30,015; (2) removing her designation as the PPR; and (3) increasing her child support payment from $207 per week to $327 per week. With regard to her child support payment, plaintiff contends the court used "the same expenses" twice. First, it increased plaintiff's support payment from $137 per week to $207 per week for costs attributable to their child's "clothing, CCD classes, manicures, babysitting, etc." Then, upon reconsideration, the court increased plaintiff's support obligation to $327 per week due to the cost of the child's "clothing, personal care, entertainment and miscellaneous expenses."

In its initial decision, the court noted "[t]he parties share residential custody" and found that the parties' daughter resided with each parent "fifty percent (50%) of the time." Nevertheless, the child support worksheet prepared by the court indicated that the child spent fifty-four percent of her nights with plaintiff and forty-six percent of her nights with defendant. In addition, the court designated plaintiff the PPR, and it determined that "each party shall pay his/her respective share of expenses for summer camp, extracurricular activities agreed upon by the parties and unreimbursed medical expenses. Plaintiff['s] share is 54% and Defendant['s] share is 46%."

Following the entry of the JOD on October 5, 2007, plaintiff filed a motion for reconsideration. Plaintiff argued that defendant's "child support credit should be retroactive to January 17, 2006, the first day of trial rather than December 17, 2004, the return date of Defendant's Pendente Lite Motion." Defendant opposed plaintiff's motion and filed a cross-motion. Defendant argued the parties had "a 50/50 parenting time arrangement" that was "not reflected in the Child Support Guidelines [W]orksheet" and the court erred in designating plaintiff as the PPR. In addition, defendant claimed the court erred when it imputed income to him in the amount of $40,000 per year because he "never earned $40,000." He also argued their daughter's unreimbursed medical expenses should be shared in proportion to each parent's percentage of income:

I also ask for reconsideration as to our respective contribution to unreimbursed expenses and medical expenses, I ask for reconsideration of the Court's order compelling me to pay 46% of same, while Ellen pays 54% of same. The court seems to have apportioned contributions for medical expenses by the amount of time we spend with [our daughter] (even though we each have [her] 50% of the time). The Court should base such expenses on a pro rata share of income. I do not earn 46% of our combined incomes.

 

In a written opinion dated December 14, 2007, the court explained its reasons for denying plaintiff's motion to modify the retroactive date of plaintiff's child support obligation. The court also denied defendant's requests to reconsider his imputed income and to apportion the child's unreimbursed medical expenses on the basis of each parent's relative income. However, the court increased plaintiff's child support obligation to $327 per week. The court noted that it imputed income to defendant in the amount of $40,000 per year the average salary for a truck driver pursuant to the New Jersey Department of Labor statistics because it had "serious reservations with respect to Defendant's credibility in disclosing his true income." The court also found that plaintiff had "income of approximately $170,000 per year, with the majority of that figure being net of taxes." The court found defendant's net income "will be approximately $29,000 per year and the combined net income is $199,000 per year or $3,826 per week." Based on the parties' net income, the court recognized the inapplicability of the child support guidelines2 and the need to consider the statutory factors set forth in N.J.S.A. 2A:34-23(a). Nevertheless, the court did not explain its reasons for increasing plaintiff's support obligation to $327 per week, and we remand this issue to the court for further consideration and more specific findings.

In order to aid the remand court, we note that the worksheet attached to the JOD indicated that defendant has a net income of $629 per week. However, the court found that defendant's net income was approximately $29,000 per year and that results in a net weekly income of $558. In addition, based on the parties' shared parenting arrangement, the court found that the parties equally share parenting time. Nevertheless, the worksheet does not indicate an equal "percentage of overnights." We also note that unpredictable unreimbursed health-care expenditures are normally "shared in proportion to each parent['s] relative income," and the court failed to explain why that should not occur in this case. Child Support Guidelines, Pressler and Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2451 (2011).

On the other hand, we agree that plaintiff's child support obligation should be retroactive to December 17, 2004, and we reject defendant's claim that the court erred in assessing his capacity to earn and plaintiff's income. We also reject plaintiff's claim that the court erred in removing her designation as the PPR. See Benisch v. Benisch, 347 N.J. Super 393, 397 (App. Div. 2002) (noting there is "no rational basis" for the assumption that only one parent will incur "'controlled expenses'" when the child spends an equal amount of time with both parents).

In his final point, defendant contends the trial court's failure to award him counsel fees was an abuse of discretion. An award of counsel fees in a matrimonial action is discretionary. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). As noted in Higgins v. Polk, 14 N.J. 490, 493 (1954), "[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." "In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002).

"In determining whether a counsel fee should be imposed, the court must look at the requesting party's need, the other party's ability to pay, and the good and bad faith of each party." Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998). That is what the trial judge did, and we find no abuse of discretion or reversible error.

Affirmed in part, reversed in part, and remanded to the trial court for reconsideration of child support and the allocation of any additional child-related expenses, including unreimbursed medical costs. Jurisdiction is not retained.

 

1 The first eight points of plaintiff's brief address defendant's appeal.

2 The maximum combined net weekly income in appendix IX-F of the Court Rules is $3,600. Schedule of Child Support Awards, Pressler and Verniero, Current N.J. Court Rules, Appendix IX-F to R. 5:6A at 2512 (2011).