KRISTIN STILLE v. THOMAS P. STILLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1977-05T11977-05T1

KRISTIN STILLE,

Plaintiff-Respondent,

v.

THOMAS P. STILLE,

Defendant-Appellant.

_______________________________________

 

Argued January 31, 2007 - Decided February 26, 2007

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. FM-07-2298-04.

Peter G. Bracuti argued the cause for appellant (Walder, Hayden & Brogan, attorneys; Mr. Bracuti, on the brief).

Carolann M. Aschoff argued the cause for respondent (Ms. Aschoff and Clara S. Licata, on the brief).

PER CURIAM

Defendant Thomas P. Stille appeals from an amended final judgment of divorce entered in this matter on November 3, 2005. For the reasons that follow, we affirm.

The parties were married on December 23, 1990. Three children were born of the marriage, the oldest of whom was twelve years of age at the time of trial. The parties separated in February 2004. Plaintiff filed a complaint for divorce on April 26, 2004, and defendant filed an answer and a counterclaim on July 8, 2004. The matter was tried before Judge James B. Convery on July 11, July 18, and August 17, 2005. The judge entered a final judgment of divorce on August 17, 2005.

On November 3, 2005, Judge Convery filed a comprehensive written opinion which included the following determinations that are pertinent to this appeal: 1) the full value of certain property located at 33 Smull Avenue in Caldwell, New Jersey, is subject to equitable distribution; 2) plaintiff is entitled to alimony in the amount of $150 per week, commencing upon the sale of the marital residence, for a period of sixty months, or until her remarriage or cohabitation with an unrelated adult male; 3) the parties shall have joint legal custody of the three children, with plaintiff as the primary residential parent and defendant as the parent of alternate residence; 4) upon the sale of the marital property, defendant is required to pay child support in the amount of $131 per week; and 5) plaintiff is entitled to an award of $25,000 towards her attorneys' fees and costs. The judge's determinations were incorporated in the amended final judgment of divorce filed on November 3, 2005. This appeal followed.

I.

Defendant first argues that the judge erred by imputing to him $62,000 of income. We disagree.

We note at the outset that the scope of our review of the judge's factual determination regarding defendant's income is strictly limited. "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., 65 N.J 474, 484 (1974) (citing N.J. Tpk. Auth. v. Sisselman, 106 N.J. Super. 358 (App. Div.), certif. denied, 54 N.J. 565 (1969)). We will "not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). Furthermore, because the family courts have special expertise in family matters, we accord deference to fact finding by the family court judges. Cesare v. Cesare, 154 N.J 394, 413 (1998).

In this matter, Judge Convery made the following findings regarding defendant's income:

The parties defined their marital lifestyle by their incomes and expenses. The plaintiff listed on her case information statement dated July 5, 2005 the parties' "Joint Marital Life Style" monthly expenses as $8,299 or approximately $100,000 annualized. The defendant listed on his case information statement dated June 28, 2005 the parties' "Joint Marital Life Style" monthly expenses as $11,706.23 or approximately $140,500 annualized. For 2004 the parties had approximately $76,000 net monies or $81,186 including $5,186 depreciation deduction as to a net rental income to fund their life style amounting to $100,000 [plaintiff's lifestyle designation] or $140,500 [defendant's lifestyle designation] or a negative difference of $24,000 [$18,814 including $5,186] or $62,000 [$59,314 including $5,186] unaccounted for by the evidence submitted by the parties. The plaintiff reported no debts other than the Bank of America [Fleet] and PNC loans. The defendant reported no debts other than three mortgages and a long-term debt to his mother. It is clear that the defendant's family provided money to the parties throughout their marriage offsetting lifestyle monetary needs of the parties. Based on the employment history as a carpenter, the employment perquisites defendant received from his family business, the parties' standard of living as defined by their expenses, the money received by the defendant from his family to support the standard of living, the court imputes annual gross earned income to the defendant amounting to $62,000.

Defendant asserts that there is insufficient support in the record for the judge's findings.

The record shows that defendant worked as a carpenter in his family's business, Stille & Sons, Inc. On the parties' joint tax return for 2004, defendant reported wages in the amount of $31,800. In the years from 2000 to 2004, defendant's average reported income was $33,650. Defendant also earned money in a snow removal business; however, none of this income was reported on the tax returns. Plaintiff testified that defendant earned between $1,000 and $4,000 per season for snow removal. Defendant concedes that he received certain perquisites from the family business but he claims that the value of these perquisites was about $1,100 per year. Defendant maintains that his total income is about $37,000, and the judge erred in imputing to him about $25,000 in additional income.

Defendant's arguments are without merit. The judge's decision to impute $62,000 of income to defendant was based primarily upon the fact that, according to their case information statements, the net income available to the parties was not sufficient to meet their lifestyle expenses. As the judge pointed out, the parties' submissions did not account for the shortfall. Contrary to defendant's assertion, there is sufficient credible evidence in the record to support the judge's decision to impute to defendant income in addition to his reported average annual wages and snow removal earnings.

We reach this conclusion for several reasons. First, it is highly improbable that plaintiff was the source of any additional money to support the parties' lifestyle expenses. Plaintiff worked as a secretary for a local school district. Her reported income for 2004 was $40,681. There is no evidence that plaintiff had any source of income other than her salary.

Second, the record established that defendant's family business provided defendant with certain financial perquisites, including a Jeep, gasoline expenses for the Jeep and plaintiff's Honda, a clothing allowance, cell phones, and insurance for the Jeep. Defendant did not report the value of these perquisites on his case information statement. Although defendant argues that the value of these benefits is no more than $1,100, he submitted no evidence to substantiate that assertion. It was certainly within the trial judge's discretion as fact-finder to conclude that the value of the perquisites was greater than $1,100.

Third, there is evidence that defendant's family provided financial assistance to the parties during their marriage. Defendant contends that any such financial assistance was provided early in the marriage and there was no evidence to show that his family continued to provide money to the parties. However, the judge could readily reject that assertion on credibility grounds. Given the family's history of providing financial assistance to the parties, the judge could reasonably conclude that the family continued to make additional monies available to defendant to meet the parties' marital expenses.

II.

We turn to defendant's contention that the judge erred by concluding that the full value of the property at 33 Smull Avenue is subject to equitable distribution.

In ordering the equitable distribution of marital property, the trial judge is required to: 1) decide the property that is eligible for distribution; 2) determine the value of the property; and 3) decide how to equitably allocate that property. Rothman v. Rothman, 65 N.J 219, 232 (1974). We will not disturb the distribution of marital property "as long as the trial court could reasonably have reached its result from the evidence presented, and the award is not distorted by legal or factual mistake." La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J 630 (2001). The party challenging the court's distribution of marital assets has the burden of demonstrating an abuse of discretion. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978).

Defendant asserts that he purchased the Smull Avenue property prior to the parties' marriage in December 1990. Defendant contends that he purchased the property with $25,000 of his own monies and an additional $110,000 that he borrowed from the "Stille Family Trust." Defendant claims that he received $91,620 from his mother to pay for materials and "independent" labor needed to make renovations to the property. Defendant says that he did a substantial part of the work, with help from his father, two brothers, and friends. Defendant contends that plaintiff made only a minimal monetary contribution to the property after they were married.

Although the property was purchased before the parties' marriage, that fact is not dispositive on the issue of whether the realty is subject to equitable distribution. In appropriate circumstances, a date prior to the marriage may "qualify as the date of commencement of the marriage for the purpose of deciding whether property is a marital asset subject to equitable distribution." Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div.), certif. denied, 114 N.J. 287 (1988).

We are convinced that the record supports Judge Convery's finding that the subject property "was acquired in contemplation of the parties' marriage and that [the parties] clearly intended to reside at the residence upon completion of the renovations." The record shows that the parties were engaged at the time the property was purchased in April 1990. After they were married in December 1990, the parties lived briefly with a friend and later with defendant's parents. The parties moved in to the apartment on the second floor of the premises in July 1991 and remained there until 1998, when they moved to the marital residence at 13 Laurel Place, West Caldwell.

Moreover, plaintiff testified that she had significant involvement in decisions regarding the acquisition of the property, the application for variances needed to convert the property from residential to mixed use, and the renovation of the property. Plaintiff testified that she helped "dig out the basement floor" and assisted when the cement was poured. Plaintiff additionally stated that she did "a lot of the legwork" so that the parties could jointly make decisions regarding paint, carpet, trim, the front door, brick work, fixtures, and the landscaping. We are therefore satisfied that Judge Convery did not abuse his discretion in finding that the Smull Avenue property is subject to equitable distribution.

Defendant alternatively argues that the court erred in denying his request for an "exemption" for certain monies allegedly owed to his mother for the renovations. However, the record supports the judge's finding that defendant failed to prove the existence of these alleged loans. Plaintiff testified that the monies from defendant's mother were gifts rather than loans. The judge found that plaintiff's testimony on this point was "clearly credible." Indeed, the alleged loans were never memorialized in writing, and were not disclosed to the accountant who prepared the parties' tax returns or the bank that provided a mortgage respecting the property.

Furthermore, the judge found it significant that defendant did not call his mother or any other witness to support his claim that the monies were provided as loans rather than gifts. The judge properly drew an inference that such testimony would not have been favorable to defendant, stating, "It clearly would be natural for the defendant to come forward with proofs as to the parties' loans and to call his mother to meet his burden to prove loans."

Defendant also takes issue with the judge's rejection of his request to be reimbursed for the value of labor provided by family members or other persons who performed renovation work on the property. However, it was undisputed that none of the laborers were paid when the renovations were made in 1990 and 1991. At trial, defendant estimated the renovation costs but his written estimate was never admitted into evidence. The judge properly found that defendant had not presented any credible evidence to support this claim.

III.

Defendant next argues that the judge erred by failing to resolve his request for an accounting and reimbursement of certain mutual expenses incurred by the parties after their separation and before trial. Again, we disagree.

According to defendant, the parties agreed that they would share the cost of certain marital expenses that were not covered by the rental income from the Smull Avenue property. Defendant contends that the parties agreed to submit their receipts to defendant's brother-in-law, who would prepare a statement of the amounts owed by plaintiff and defendant.

It appears that plaintiff submitted her receipts to defendant's brother-in-law for the period from March 2004 to October 2004 but submitted no receipts thereafter. Defendant claimed that, according to the "reconciliations" prepared by his brother-in-law, plaintiff owed him $3,669.59, for the period from May 15, to August 15, 2004. He also claimed that plaintiff owed additional monies for the period from August 16, 2004, to June 15, 2005. However, plaintiff testified that there was never any agreement to share the costs of these marital expenses. She further testified that she had spent more than $20,000 for mutual expenses and sought a credit for her payments.

The judge found that there was a lack of credible proofs from both parties with regard to their respective claims regarding these post-separation expenses. The judge concluded that neither party was entitled to a credit for expenses paid by the other during their separation. In our view, the judge's finding is supported by the record.

Indeed, deference to the finding of the trial judge on this point is warranted because the relevant evidence "is largely testimonial and involves questions of credibility." Cesare, supra, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Having heard the testimony and observed the parties, the trial judge "has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (citing Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).

IV.

We turn to defendant's contention that the judge erred by awarding plaintiff primary residential custody of the parties' three children.

A child's best interest is the primary concern to the court in any matter involving custody. Beck v. Beck, 86 N.J. 480, 497 (1981). The judge must consider the criteria set forth in N.J.S.A. 9:2-4c and any other factor that is relevant to the best interest analysis. In considering all of the circumstances that bear upon the child's best interest, a trial judge has the opportunity to become fully immersed with the relevant facts. Palermo v. Palermo, 164 N.J. Super 492, 498 (App. Div. 1978). Therefore, the trial judge's custody determination is "entitled to great weight and will not be lightly disturbed on appeal." DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div. 1951).

Here, Judge Convery found that during the marriage, plaintiff acted as the children's primary care provider. The judge noted that defendant had fulfilled his duties as husband, income earner, and co-care provider. There was no evidence that the parenting of either party was inappropriate or harmful to the children's safety or welfare. However, the judge found that during the parties' separation, while the parties had a shared parenting arrangement, defendant had acted inappropriately and demonstrated animosity toward plaintiff. The judge noted that defendant's animosity had "spilled over" to family members "with apparent negative actions and comments demonstrated in front of the children." The judge considered all of the relevant factors, including the history of the parties' marriage, and concluded that plaintiff should be the children's primary residential parent with defendant serving as parent of alternate residence.

Defendant argues that he would provide the children with greater stability than plaintiff. He asserts that he has a specific plan for parenting, which would allow the children to remain in the same school system, and live in close proximity to his extended family. Defendant additionally argues that plaintiff has no "concrete" parenting plan. Defendant presented testimony from two neighbors, Joseph Howley (Howley) and Dan Cipoletti (Cipoletti). Howley said that defendant was a "[v]ery hands-on" parent. Cipoletti testified that defendant was "[v]ery involved" with his children.

Plaintiff testified that during the parties' separation, she spent some time with her boyfriend at his home in Montville, New Jersey. However, plaintiff said that after the former marital residence is sold, she intends to look for a new residence in West Caldwell or a nearby community. Plaintiff stated that she believed that she would provide "structure and organization" to the children's lives. She also said that defendant's hostility was making it "very uncomfortable for the children."

We are convinced that the judge gave careful consideration to all of the evidence presented by both parties on the custody issue. We are satisfied that there is substantial credible evidence in the record to support the judge's conclusion that the award of primary residential custody to plaintiff is in the children's best interests.

V.

Defendant next contends that the judge erred in awarding plaintiff $25,000 towards her counsel fees and costs, which total $40,366.64. Defendant contends that there is no support in the record for the judge's finding that he pursued his claims in this matter in bad faith. We are convinced, however, that the judge did not abuse his discretion in making this award.

In his written opinion, Judge Convery found that defendant had prolonged a relatively uncomplicated matter by taking unreasonable positions on various disputed issues. The judge noted that in doing so, defendant was acting out of hostility for plaintiff. The judge stated:

The defendant's unreasonable positions before and during the trial necessitated continuing the litigation and trial causing both parties to incur unnecessary legal fees and costs. The defendant's position was not bad judgment but [rather] a conscious effort to harm the plaintiff emotionally and financially.

In our view, the judge's findings support the award of counsel fees to plaintiff in this case.

VI.

Defendant also asserts that the judge erred by considering evidence outside of the record, specifically an unsigned document addressed to "Kris." In his decision, the judge commented:

The defendant provided an unsigned writing to "Kris" referring to a threat to "Tom" and a counter threat to plaintiff that she was an "unfit" mother. The plaintiff testified and provided a police incident report dated March 6, 2004 evidencing her claim that the defendant committed an act of domestic violence and then received [the] undated note to "Kris."

It appears that the writing in question was withdrawn as an exhibit but not removed from the exhibit book. Defendant speculates that the judge's findings in this case were in some way affected by this evidence.

 
We disagree. A review of the judge's lengthy opinion indicates that the judge did not expressly rely upon the document for any of his factual findings. The judge's brief reference to the writing in his opinion was erroneous but the error was harmless.

Affirmed.

Defendant asserts that his statement of monthly expenses was erroneous and the annual expenses should have been $106,512 rather than $140,500. However, the error does not affect the trial court's finding because even if we adjust for the error, the shortfall in net income available to the parties to meet their marital lifestyle expenses remains about $25,000.

The judge found that, as of December 2004, the fair value of the property was $555,000. The parties also are obligated to share responsibility for liens on the property.

Defendant claimed that $64,920 is owed to his mother.

(continued)

(continued)

16

A-1977-05T1

February 26, 2007