BERNIER LAUREDAN v. MARIE LORVANIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4473-08T24473-08T2

BERNIER LAUREDAN,

Plaintiff-Appellant,

v.

MARIE LORVANIS,

Defendant-Respondent.

_________________________________

 

Submitted: June 3, 2010 - Decided:

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-48-07.

Law Office of Frank E. Tournour, P.C., attorney for appellant (Angela F. Pastor, on the briefs).

Fredrick R. Schreck, attorney for respondent.

PER CURIAM

Plaintiff Bernier Lauredan appeals from a final judgment of the Chancery Division after a four-day bench trial, primarily denying him partition relief in a property titled in defendant's name. We affirm substantially for the reasons set forth by Judge Ciuffani in his comprehensive, twenty-one page letter opinion of April 17, 2009. We add the following comments.

The parties met each other in 1991 and dated sporadically through 2007. During their relationship, plaintiff had two successive marriages. The parties had a child together who was born in November 1998 and resided with defendant. There was no formal child support arrangement, but plaintiff claimed he contributed towards the child's school and transportation and gave defendant some money towards mortgage payments and to buy groceries. Plaintiff also gave defendant gifts of money.

The following evidence was presented at trial and found by the judge to be competent. The property in dispute is a residence located in Edison that defendant purchased from a friend of plaintiff's in 1998, with title solely in her name. She began living there with her two children from a prior marriage in January 1996, pursuant to a lease purchase agreement because she could not qualify for a mortgage at that time. Defendant and her children lived there alone until April 2006, during which time plaintiff owned his own home where he lived with his family. In April 2006, plaintiff was having personal problems and defendant allowed him to move into the Edison property. Defendant, who had been paying the mortgage, taxes, insurance and utilities on her own, testified that plaintiff agreed to pay the mortgage for every month he lived at the property and she would pay utilities, food and other household expenses. Plaintiff conceded he did not begin paying the mortgage in April 2006, and was not able to produce any proof of payments he made for the mortgage. In contrast, defendant produced documentary evidence that she paid the approximately $1,800 per month mortgage through September, and testified that plaintiff only made four mortgage payments beginning in October.

On February 1, 2007, defendant obtained a temporary restraining order against plaintiff, which required he move out of the Edison property. At the final restraining order hearing on April 20, 2007, the Family Part judge found that defendant did not meet her burden of proof and dismissed the restraints, permitting plaintiff to retrieve his personal belongings from the house. The parties testified before Judge Ciuffani about the Family Part proceeding and the retrieval of some of plaintiff's belongings and placement of others in storage.

On March 9, 2007, plaintiff filed this Chancery Division action against defendant for: partition by sale or conveyance of the Edison property, alleging it was either purchased or financed, or both, with monies loaned or provided to defendant by plaintiff (count one); unjust enrichment and constructive trust (count two); breach of contract (count three); breach of the covenant of good faith and fair dealing (count four); interference with contractual/prospective economic advantage (count five); conversion and theft of plaintiff's money and personalty (count six); fraud, deceit and misrepresentation (count seven); and malicious prosecution and abuse of process in connection with the domestic violence complaint (count eight). Defendant filed a counterclaim for reimbursement of half of the funds she expended on the property from April 1, 2006 through January 31, 2007.

Early in the trial, Judge Ciuffani declined to exercise jurisdiction over plaintiff's frivolous litigation claim asserted in connection with the domestic violence complaint and dismissed without prejudice count eight of plaintiff's complaint. Following the bench trial, the judge denied the balance of plaintiff's requests for relief and awarded defendant $10,800 on her counterclaim, representing six months of mortgage payments, as reimbursement for plaintiff's living expenses while he resided in the Edison property. The rulings were memorialized in an April 17, 2009 letter opinion and a May 4, 2009 order for judgment. The order expressly noted that plaintiff's frivolous litigation claim was dismissed without prejudice to his right to pursue it before the Family Part judge who presided over the domestic violence proceeding. This appeal ensued.

On appeal, plaintiff argues the court erred in: (1) finding the Edison property belonged solely to defendant as all evidence indicated the parties' relationship was akin to a joint enterprise; (2) refusing to hold defendant in contempt for not returning plaintiff's legal documents pursuant to the Family Part court order, which severely prejudiced his proofs in this trial; and (3) refusing to award him attorney's fees under the frivolous litigation statute for the prior domestic violence case in which he was the prevailing party.

We are not persuaded by any of these arguments. Judge Ciuffani, who had the opportunity to observe the witnesses, made detailed credibility assessments, expressly finding defendant to be credible and plaintiff not to be credible as to the bulk of his testimony. The judge properly evaluated the evidence and thoroughly explained his factual and legal findings to support the conclusion that plaintiff failed to prove his claims with competent, credible evidence. Therefore, based on our limited scope of review of a judgment entered in a non-jury case, we are satisfied that deference to the trial judge's findings is appropriate as they are supported by adequate, substantial and credible evidence in the record as a whole. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Connell v. Diehl, 397 N.J. Super. 477, 490 (App. Div.), certif. denied, 195 N.J. 518 (2008).

We further note the record does not reflect a request by plaintiff to hold defendant in contempt of court. At the beginning of trial, plaintiff's counsel merely stated that discovery was closed at the time he entered the case. Plaintiff made no attempt to pursue enforcement action in the Family Part to obtain the alleged documents at any time during the pendency of this action. Nor did plaintiff make a proffer before Judge Ciuffani as to the specific legal documents of his that defendant had not returned, which he could not obtain from other sources, and which he contended severely prejudiced his proofs.

Affirmed.

 

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A-4473-08T2

July 8, 2010