FATEMEH AABDOLLAH v. MORTEZA AABDOLLAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2950-08T1

FATEMEH AABDOLLAH,

Plaintiff-Respondent/

Cross-Appellant,

v.

MORTEZA AABDOLLAH,

Defendant-Appellant/

Cross-Respondent.

________________________________________________________________

May 17, 2011

 

Argued May 3, 2011- Decided

 

Before Judges Parrillo, Espinosa and Skillman.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-181-06.

 

Joseph R. Gannon argued the cause for appellant/cross-respondent.

 

Dale E. Console argued the cause for respondent/cross-appellant.

 

PER CURIAM

Following a fifteen-day trial that spanned more than one year, the trial court decided all the economic issues in this matrimonial action in a lengthy oral opinion. In his appeal, defendant challenges the court's decision regarding alimony, equitable distribution and an award of counsel fees to plaintiff. Plaintiff cross-appeals, asserting that the trial court committed error in treating a pension in pay status as income to be considered in determining alimony rather than as an asset subject to equitable distribution. We find no merit in the arguments raised by defendant but reverse and remand on the cross-appeal.

In February 1970, the parties were married in an arranged marriage in Iran in a ceremony in which defendant was represented by proxy by his father. Plaintiff filed a complaint for divorce in November 2005. The two children of the marriage were adults when the divorce complaint was filed.

The facts pertinent to the appeal and cross-appeal are set forth in the trial court's lengthy oral opinion and need not be repeated here. We note only the following salient facts.

The trial was plagued by defendant's allegations, ultimately found to be false, and failures to provide documentation necessary to support his claims regarding finances that, as the trial court determined, were designed to minimize, if not eliminate, any financial obligation to plaintiff. By way of example only, we note defendant's inconsistent positions regarding the income producing properties. The properties were purchased solely in defendant's name, and listed on defendant's case information statement as non-marital assets, titled only to him and not subject to equitable distribution. Yet, defendant alleged that plaintiff controlled the finances for the properties in an obvious attempt to deflect any responsibility for the production of relevant financial records that would permit a forensic accountant to determine the income generated from the rental properties and the actual losses. And, when the accountant concluded, based upon the limited records available, that the parties' personal tax returns for 2005 under-reported rental income by over $67,000, it was defendant who produced documentation to refute that amount, causing the accountant to reduce the under-reported income to $66,221.

The trial court made extensive findings to support its conclusion that defendant's testimony was not credible. The sweep of testimony the court found not credible included: defendant's denial that the couple was married; his claim that plaintiff had control of all the marital assets, including all the rental properties; his claim that plaintiff forged his signature on documents refinancing various properties; defendant's allegation that plaintiff received $2 million in inheritance and insurance proceeds from a gentleman for whom she had served as a home health aide; his claim that plaintiff stole his passport; his claim that plaintiff took Persian rugs worth $60,000; his claim that his employment was only temporary and his income unstable, disproved by the fact that he attained tenure as a college professor; his denial that he was licensed as a realtor; his initial disclaimer of any relationship with the man in Dubai to whom he wired $355,000, which the court found defendant diverted from marital assets; his claim that all of his records were stolen during a burglary of his home; his assertion that plaintiff spent "huge amounts of money" on travel; and his unsupported claims of losses for the rental properties. In addition, the court found defendant violated an order of the court by using funds from an equity line for purposes other than those authorized by the court; that it was defendant who forged plaintiff's signature on refinancing documents and that it was defendant who traveled "a great deal." The court also gave reasons for its finding that the realtor who appraised the properties on behalf of plaintiff was more credible than the realtor called by defendant, who had allowed his license to lapse. The court's credibility findings are plainly supported by the evidence and provide a solid foundation for the court's determination of the facts relevant to its disposition of the economic issues.

In addition to its extensive findings on credibility, the trial court addressed each of the statutory factors relating to equitable distribution, N.J.S.A. 2A:34-23.1, and alimony, N.J.S.A. 2A:34-23, and made adequate findings as to each. In the final judgment of divorce, the court awarded permanent alimony to plaintiff of $4,000 per month. In ordering equitable distribution, the court gave plaintiff a credit of $406,500. Plaintiff was also granted the marital residence subject to any existing mortgage; her TIAA-CREF pension; fifty percent of the sale proceeds of a rental property at 118 Honeyman Road, Whitehouse; $100,000 of the sale proceeds from a rental property at 44-46 Myrtle Avenue, Irvington; fifty percent of frequent flyer miles and $150,000 in counsel fees. Defendant retained the remainder of his pensions after the distributions to plaintiff. As to the rental properties, he was awarded fifty percent of the proceeds from 118 Honeyman Road; retained two other properties at 50 Myrtle Avenue in Irvington and 52 Center Street in Bloomsbury, along with all obligations and liabilities for the properties; and was awarded the remainder of any proceeds from the sale of 44-46 Myrtle Avenue after plaintiff received $100,000. In addition, the court ordered that defendant was responsible for all credit card debt and required him to obtain life insurance in the amount of $150,000.

In his appeal, defendant presents the following issues1 for our consideration:

POINT I

 

THE PLAINTIFF'S PERMANENT ALIMONY OF $4,000 A MONTH AWARD MUST BE REVERSED BECAUSE THE TRIAL COURT MADE SEVERAL EGREGIOUS [E]RRORS IN HIS CALCULATIONS AND BECAUSE JUDGE ABUSED HIS DISCRETION, PRODUCING UNJUST RESULT.

 

SUBPOINT-A TRIAL COURT JUDGE ADMITTED THAT HIS DECISION IS NOT BASED ON FACT OR EVIDENCE. TRIAL COURT PRE-JUDGED THE CASE.

 

SUBPOINT-B THERE WERE NUMEROUS EGREGIOUS ERRORS IN CALCULATING THE ALIMONY AWARD. THIS AWARD WAS BASED ON 5% INTEREST ON A FICTITIOUS NU[M]BER AND ON COUNTING RENTAL LOSS AS INCOME.

 

SUBPOINT-C THE PLAINTIFF DISSIPATED MARITAL ASSETS BY TRANSFERRING MARITAL FUNDS HER SECRET "SAVING ACCOUNT" AND "FUN ACCOUNT"

 

SUBPOINT-D RESPONDENT ACCOUNTED ONLY FOR $15,000 OUT OF $251,500 PARTIES TRANSFERRED TO HER FAMILY FOR PURCHASE OF A RETIREMENT APARTMENT

 

POINT II

 

THE PLAINTIFF'S $406,500 AWARD BEYOND EQUAL DISTRIBUTION MUST BE REVERSED BECAUSE JUDGE ABUSED HIS DISCRETION IN DETERMINING AN UNFAIR AND DISPROPORTIONATE EQUAL DISTRIBUTION PLAN. DECISION WAS BASED ON EGREGIOUS ERRORS.

 

SUBPOINT-A MARCH 6, 2006 ORDER ALLOWED USE OF JOINT MARITAL ASSETS TO PAY PENDENTE LITE AND RENTAL SHORTFALLS THE TRIAL JUDGE IGNORED THE JUDGE RUBIN COURT ORDER

 

SUBPOINT-B PARTIES MAINTAINED THEIR LIFE STYLE BY LIQUIDATING ASSETS AND BORROWING. THE JUDGE AGREED WITH ONLY $5[,]000 PER MONTH NEGATIVE CASH FLOW, WHILE PARTIES HAD OVER $10,000 PER MONTH NEGATIVE CASH FLOW FOR OVER TWO DECADES.

 

SUBPOINT-C THE JUDGE USED INCORRECT DATA AND DID NOT INCLUDE LIABILITIES AND DEBT IN HIS CALCULATION OF $406,500 AWARDS TO PLAINTIFF. EACH AND EVERY COMPONENTS IN THE CALCULATION OF $406,500 IS ERRONEOUS.

 

SUBPOINT-D THE JUDGE IGNORED PREVIOUS COURT ORDER OF MARCH 6, 2009 TO PAY PENDENTE LITE FROM JOINT MARITAL ASSETS[]

 

POINT III

 

THE PLAINTIFF'S AWARD OF COUNSEL FEE[S] OF $150,000 MUST BE REVERSED BECAUSE JUDGE'S DECISION IS BASED ON ERRONEOUS ASSUMPTIONS. JUDGE ABUSED HIS DISCRETION

 

POINT IV

 

THE PLAINTIFF'S PERSONAL CREDIT CARD PAYMENT AWARD OF $23,000 TO BE REVERSED BECAUSE CHARGES WERE FOR PLAINTIFF'S PERSONAL USE AND NOT MARITAL. JUDGE MADE HARMFUL ERRORS. JUDGE ABUSED HIS DISCRETION

 

POINT V

 

THE DEFENDANT DOES NOT HAVE THE ABILITY TO PAY THE TERMS OF THE JUDGMENT OF DIVORCE. ALSO PRESENT VALUES OF REAL ESTATES AND PENSIONS ARE 30%-50% LOWER THAN JUDGE CALCULATED.

 

POINT VI

 

THE CUMULATIVE EFFECT OF EGRIGEOUS [SIC] ERRORS CONSTITUTES BIAS, THE TRIAL COURT JUDGE COMMITTED AN ABUSE OF DISCRETION AND UNDUE PREJUDICE MADE THE TRIAL A MISCARRIAGE OF JUSTIC[E].

 

SUBPOINT-A THE BASIS FOR ALL CREDIBILITY ISSUES ARE ERRONEOUS AND A SHIELD FOR BIAS AND LACK OF ANY FACTS AND EVIDENCE.

 

SUBPOINT-B THE ACCOUNTANT MS. O'HARE UNDER OATH ADMITTED THAT SHE ERRONEOUSLY COUNTED BORROWED MONEY AS RENTAL INCOME[] RESULTING IN RENTAL POSITIVE INSTEAD OF LOSS. ALSO SHE WAS NOT ALLOWED TO TESTIFY ABOUT PLAINTIFF'S FINANCES AND HER SECRET BANK ACCOUNTS.

 

SUBPOINT-C THE CUMULATIVE EFFECT OF EGREGEOUS ERRORS CONSTITUTES A CLEAR AND CONVINCING EVIDENCE OF BIAS. NUMEROUS IRREGULARITIES DEMONSTRATE THAT THE JUDGE WAS NOT FAIR OR IMPARTIAL. APPELLANT WAS NOT ALLOWED TO PRESENT HIS SIDE FULLY IN THE COURT.

 

After carefully considering the record, briefs and arguments of counsel, we are satisfied defendant's arguments lack sufficient merit to warrant discussion in a written opinion and that the trial court's rulings on these issues are adequately supported by the evidence. R. 2:11-3(e)(1)(A) and (E).

In her cross-appeal, plaintiff argues that the trial court erred as a matter of law when it treated defendant's GPU pension as income because it was in pay status, rather than as an asset subject to equitable distribution. We agree.

In reviewing a decision of a family court, we "defer to the factual findings of the trial court," N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 104 (2008), in recognition of the "family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010); Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In its oral decision, the trial court stated its agreement with defendant "that the [GPU] pension is now a payment and cannot be simply reallocated." Accordingly, the court treated the pension payments being received by defendant as income and included that payment in making its determination of alimony. We conclude that the court erred in doing so.

Pension benefits provided to one party during the marriage are part of the marital estate, subject to equitable distribution, because they are considered to be derived from the "joint efforts of the parties." Moore v. Moore, 114 N.J. 147, 154-55 (1989); Barr v. Barr, 418 N.J. Super. 18, 33 (App. Div. 2011). "In general, the portion of a pension that is 'legally or beneficially acquired' during a marriage is subject to equitable distribution." Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290, 298 (App. Div. 2007). The fact that pension benefits so earned are in pay status will not "shield" them from equitable distribution. Ibid.

Defendant was employed as an electrical engineer at GPU from 1969 until 2001, when he accepted a retirement package at the age of fifty-five, and began collecting an annual pension of approximately $32,000. Because defendant was married to plaintiff for all but - at most - one year of his employment at GPU, virtually all of his GPU pension was "legally or beneficially acquired" during the marriage and was subject to equitable distribution.

We therefore reverse the court's determination of equitable distribution and alimony, limited to the court's exclusion of defendant's GPU pension from equitable distribution and inclusion of those pension payments in defendant's income for the determination of an appropriate award of alimony and remand for consideration of those issues consistent with this opinion.

A

ffirmed in part and reversed in part. We do not retain jurisdiction.

1 In his reply brief, defendant attempts to add an issue abandoned at the trial level, that he and plaintiff were not married. Defendant may not introduce a new issue on appeal in his reply brief. See State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 256 (1970); Bd. of Educ. of Clifton v. Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 443 (App. Div. 2009); Goldsmith v. Camden Cnty. Surrogate's Office, 408 N.J. Super. 376, 387 (App. Div.), certif. denied, 200 N.J. 502 (2009). In any event, this argument lacks any merit in light of the stipulation and the introduction of a certified translation of the Iranian marriage license at trial.