DAVID ENG v. ANNMARIE ENG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4042-09T3

DAVID ENG,

Plaintiff-Respondent/

Cross-Appellant,

v.

ANNMARIE ENG,

Defendant-Appellant/

Cross-Respondent.

____________________________________________

May 12, 2011

Submitted April 5, 2011 - Decided

Before Judges Espinosa and Roe.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-557-09.

Mark Vogel, attorney for appellant/cross-respondent.

Stuart Altman, attorney for respondent/ cross-appellant.

PER CURIAM

Defendant, Annmarie Eng, appeals from a final judgment of divorce following a bench trial. Plaintiff, David Eng, cross-appeals. We affirm.

The parties were married on June 23, 2001. No children were born of the marriage. On August 24, 2008, each party's application for a temporary restraining order was denied. Plaintiff filed a complaint for divorce on September 5, 2008. Thereafter, the parties signed multiple criminal complaints, each against the other. Additional complaints were filed against third parties, arising out of the marital dispute. Defendant's motion to consolidate all of these proceedings into the matrimonial matter was denied.

Trial commenced on September 22, 2009. As a result of testimony taken on the first day of trial, the court ordered the parties to produce additional discovery to be provided by the next trial date. The requested documentation included the following: copies of statements from three bank accounts from which plaintiff allegedly removed $94,000 for a down payment on the marital home; bank statements from joint savings, joint checking, individual savings and individual checking accounts; and draft property settlement agreements addressing issues of distribution of the marital home proceeds, dissipation of assets and counsel fees.

On the final day of trial on March 10, 2010, the court took additional testimony and placed its findings on the record. The court determined the former marital home had a value of $415,000 and equity of $215,000. Based on the court's inability to determine the source of funds utilized in purchasing the home, it found that certain monies held by defendant prior to the marriage were utilized for the purchase of the marital home. The court stated "and the house was placed in both their names as husband and wife. So there is a presumption that he gave a one-half gift of those monies to her under that giving." Based on principles of equitable distribution and the source of acquisition, the court distributed the net equity in the home on a sixty/forty basis, with sixty percent awarded to plaintiff and forty percent to defendant. Plaintiff was ordered to buy out the defendant's share of the marital home in the amount of $86,000, subject to credits for the pay down on half of the principal amortization, within 120 days.

The court determined a Manhattan co-op had been owned by plaintiff for twenty-eight years prior to the marriage and eight years during the marriage, for a total of thirty-six years. Plaintiff testified that there was approximately $12,000 of equity in the co-op. The court determined that defendant was entitled to $1,300 from this property. The amount of distribution was based on the $12,000 of equity, divided by thirty-six years of ownership, for a total of $333 per year. The court multiplied $333 by the eight years of marriage and divided by two, which represented defendant's fifty percent interest of $1,300.

At trial, plaintiff admitted to withdrawing $16,000 from the joint checking account. He asserted he was entitled to this money as reimbursement for defendant's car payment. No evidence was provided regarding defendant's alleged agreement to repay plaintiff. Plaintiff was ordered to pay the defendant $8,000 for dissipating a marital asset.

At trial, the court took testimony regarding each party's application for counsel fees, including but not limited to, the amount of fees, the ability to pay and the good or bad faith of the parties. The court directed counsel to draft correspondence to the court stating the exact amount of fees that each counsel had been paid and the balance each counsel was owed. The court advised that it would write an opinion on the fees after having an opportunity to review the issue.

A final judgment of divorce memorializing the trial judge's oral decision was entered on March 24, 2010. On March 29, 2010, the court issued a written opinion directing each party to be responsible for their own counsel fees. These appeals followed.

On appeal, both parties contend the trial court erred or abused discretion in the distribution of the Manhattan co-op, the marital home and the dissipation of their bank account. We disagree.

The scope of appellate review of a trial court's fact-finding function is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Traditionally, findings by the trial judge are considered binding on appeal when supported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). 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). A trial court "hears the case, sees and observes the witnesses, hears them testify, and has better opportunity to judge their credibility than the reviewing court[.]" Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). Thus, the trial court should not disturb the factual findings and legal conclusions of the trial judge unless they are convinced the decision was so "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963). Matrimonial courts "possess special expertise in the field of domestic relations." Cesare, supra, 154 N.J. at 412. "Because of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

In Rothman, the Supreme Court established a three-step process for the trial court to follow in considering evidence and making an equitable distribution. "[H]e must first decide what specific property of each spouse is eligible for distribution. Secondly, he must determine its value for purposes of such distribution. Thirdly, he must decide how such allocation can most equitably be made." Rothman v. Rothman, 65 N.J. 219, 252 (1974). N.J.S.A. 2A:34-23 requires the court, in making an equitable distribution of marital property, to consider the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of marital property. Issues of the amount of the award and manner in which eligible assets are allocated are addressed to the trial judge's discretion. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978). For an asset to be subject to equitable distribution, it must be "property . . . legally and beneficially acquired by [the parties] or either of them during the marriage." Orgler v. Orgler, 237 N.J. Super. 342, 350 (App. Div. 1989) (quoting N.J.S.A. 2A:34-23). It is generally understood that property owned by a party "at the time of marriage will remain the separate property of such spouse[.] ..." Painter v. Painter, 65 N.J. 196, 214 (1974); Scavone v. Scavone, 230 N.J. Super. 482 (Ch. Div. 1988).

Plaintiff was the sole owner of a Manhattan co-op from 1974 until the parties' marriage in 2001. In 2002, the parties were able to upgrade the studio apartment to a one bedroom apartment within the same association as a result of their marriage. At trial, plaintiff testified the total equity in the co-op was $12,000. Defendant provided no contrary evidence of the value of the co-op. In evaluating the co-op for purposes of equitable distribution, the court found:

It's twelve thousand [dollars of] equity[.] You moved in 1974. In 2002 we upgrade. It's 2010 now. For 28 years he lived alone. For eight years you lived together. That's 36 years in that property . . . Thirty-six years into the $12,000.00 equity gives me $333.00 a year. They're together eight years. It gives me $2,600.00 . . . [defendant] is going to get from [plaintiff] $1,300.00 for that property.

At trial, the parties stipulated the marital home was valued at $415,000 with the mortgage value of approximately $200,000. The marital home was purchased on May 31, 2002 for $313,000. Plaintiff testified he solely contributed $94,000 to the marital home, which he asserted came out of monies he had saved for retirement. Plaintiff alleged the monies came from three accounts housed with HSBC, two CDs and one checking account. Defendant conceded in her testimony that she did not give plaintiff any of the money for the downpayment in the two years the parties lived together before marriage, but vacillated in whether she had contributed any monies in any "dollar form" to the acquisition of the home. The trial judge directed the parties to provide bank statements from six different accounts owned by the parties both jointly and individually, prior, during and at the time of separation before the next court hearing. On the final date of trial, March 10, 2010, the court found:

based on the inability to prove the source of income the Court however determines that certain monies that [plaintiff] held prior to the marriage were utilized for the purchase. But he doesn't get a dollar for dollar return because this was done at the inception of the purchase. And the house was placed in both their names as husband and wife. So there's a presumption that he gave a one-half gift of those monies to her under that giving. But the Court's going to allocate based on the equitable distribution principles of source of acquisition the net proceeds on a sixty/forty basis sixty percent to husband; forty to wife, which causes her entitled to be receiving the sum of $86,000.00.

Here, the trial judge clearly articulated the findings that led him to conclude the divisions of the Manhattan co-op and the marital home, in view of the credible evidence and the factors set forth in N.J.S.A. 2A:34-23.1. The trial court's credibility findings highlight that neither party was very forthcoming with financial information. We are satisfied there was no error or abuse of discretion. The record supports the court's findings and equitable distribution of assets.

Similarly, we are satisfied that neither challenge to the trial court's award to defendant based on plaintiff's dissipation of assets has any merit. At trial, the court determined the parties had $25,000 in joint bank accounts during the marriage. In 2005, the plaintiff purchased a used Chrysler Sebring on behalf of defendant. The parties took out a home equity loan to pay for the car in the amount of $14,000. Plaintiff testified he took $14,000 out of the joint savings account and applied it to the home equity line to pay off the remaining balance of the car because defendant had agreed to pay the money back to him. The court found there was no documentation of a payment to the home equity loan, nor credible evidence to support this alleged agreement or transaction. The court noted there was evidence that plaintiff withdrew an additional $16,000 from the parties' joint savings account which plaintiff testified he took, "to equal things out because - - she has a car to show." The court stated, "[B]ased on the unilateral self-help here of taking $16,000 to compensate [himself] for the car [defendant] bought, you owe her $8,000." The court determined the remaining $9,000 from the joint savings account was put back into the equity in the marital home.

Given our standard of review, there is no basis to intervene. The trial court's decision was neither arbitrary nor an abuse of discretion. As the trial judge noted, there was no evidence produced at trial concerning an alleged agreement for defendant to repay plaintiff, but there was substantial credible evidence concerning the amount of money that plaintiff unilaterally withdrew from the joint savings account. We conclude the record amply supports the division ordered, based on the dissipation of the asset.

Both parties argue the court abused discretion in denying their requests for counsel fees. We disagree. "We will disturb a trial court's determination on counsel fees only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). We have considered the record and the court's letter opinion on the issue of counsel fees. While the trial court could have made more detailed findings regarding the factors under Rule 5:3-5(c), we discern no clear abuse of discretion in the court's decision denying the counsel fee awards based on the record and the applicable law.

We have considered the arguments and the brief regarding whether the trial court correctly refused to consolidate the criminal and municipal court matters together with the divorce proceeding. We conclude this issue does not require further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.