DINA BLIKSHTEYN v. ALBERT SHAKAROV

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3500-05T13500-05T1

DINA BLIKSHTEYN,

Plaintiff-Respondent,

v.

ALBERT SHAKAROV,

Defendant-Appellant.

_____________________________

 

Submitted February 13, 2007 - Decided February 28, 2007

Before Judges Lintner, S.L. Reisner and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-1297-05D.

Einhorn, Harris, Ascher, Barbarito, Frost & Ironson, attorneys for appellant (Bonnie C. Frost, on the brief).

Cosner & Cosner, attorneys for respondent (Russell J. Huegel, on the brief).

PER CURIAM

Defendant, Albert Shakarov, appeals from a trial court "order for equitable distribution" dated February 1, 2006, permitting plaintiff, Dina Blikshteyn, to retain ownership of a co-op in return for payment to defendant of $10,850, giving plaintiff custody of the couple's daughter and setting parenting time for defendant, and requiring defendant to pay plaintiff $258 per week in child support and $1200 in counsel fees. We reverse and remand for further proceedings.

I

Plaintiff filed a divorce complaint on December 1, 2004, alleging that the parties were married in New Jersey. She also alleged that she had resided in New Jersey "for more than one year" prior to the commencement of the action, and that defendant lived in New York. She sought a divorce on grounds of extreme cruelty. Plaintiff verified the complaint in a certification dated November 18, 2004. On March 3, 2005, defendant filed a motion to dismiss the divorce complaint on the grounds that the parties were never legally married. According to defendant's certification, on November 26, 2003, the parties "took part in a religious marriage ceremony, performed by a Rabbi in New York State." However, he contended that they did not obtain a marriage license. Defendant confirmed that he was living in New York.

In a responding certification, plaintiff conceded that the parties participated in a religious marriage ceremony in New York on November 26, 2003. She agreed that the wedding was attended by 300 guests and that the parties signed a ketuba or marriage contract. She certified that that they had a child in May 2004, and that "[t]he marriage ended in November, 2004." She contended that if the parties were not legally married in New York, she still wanted the court to adjudicate her complaint under "an FD docket," because she did not "want to have to file a partition action" to resolve the issue of the parties' ownership of a co-op in Fort Lee, Bergen County.

Significantly, neither party briefed for the judge the issue of whether the parties were actually married under the laws of New York, that is, whether New York recognizes a religious marriage performed without a marriage license. See, e.g., Persad v. Balram, 724 N.Y.S.2d 560 (N.Y. Sup. Ct. 2001)(Hindu ceremony resulted in valid marriage despite lack of marriage certificate). On April 15, 2005, the court entered an order denying defendant's motion to dismiss the divorce complaint but striking the demand for dissolution of the marriage. The parties were ordered to attend mediation on the issues of custody and parenting time. Defendant filed an answer to the complaint seeking joint custody of the child and seeking partition and sale of the property acquired during the relationship. As of August 11, 2005, defendant became pro se. A case management order was entered on September 29, 2005, indicating that, among other things, equitable distribution was an issue to be decided, and ordering that interrogatories be answered by November 21, 2005. An Early Settlement Panel was scheduled for December 13, 2005.

On November 9, 2005, nearly two weeks before the deadline had passed for defendant to answer interrogatories, plaintiff moved to strike defendant's answer and enter default for failure to answer interrogatories and failure to file a case information statement. Defendant failed to file opposition, and on December 6, 2005, the court entered an order striking defendant's answer "for failure to comply with discovery requests and with [a] Case Management Order." The same order denied without prejudice plaintiff's "motion for default to be entered." However, on December 13, 2005, the court entered an order granting plaintiff's motion to default defendant due to defendant's failure to appear for the early settlement panel. The order also directed plaintiff to file a notice for equitable distribution and set a default hearing for January 27, 2006. On December 16, 2005, plaintiff filed a notice of application for equitable distribution, seeking child support of $150 per week and sole custody of the daughter.

Defendant filed a motion dated December 21, 2005, seeking to reinstate his answer. In support of his motion defendant filed a certification explaining that he did not realize he had to mail his financial documents to plaintiff's attorney and that he had been planning to bring them to a deposition scheduled for December 3, 2005. Defendant attached his case information statement, tax returns and other financial information to his certification in support of the motion. Nonetheless, by order filed January 23, 2006, the court entered an order denying the reinstatement motion without prejudice, noting "[d]efendant must provide $100.00 reinstatement fee pursuant to R. 4:23-5." The order was to be served on defendant within seven days.

Four days later, on January 27, 2006, the court held the default hearing at which defendant was not permitted to present evidence. Defendant requested an extension of time to obtain counsel but his request was denied. At the hearing, plaintiff testified that in June 2004 she, defendant and her parents purchased a co-op in Fort Lee for $250,000. Her parents paid half of the required twenty-five percent down payment, defendant contributed $10,000, and she paid the rest of the down payment. Defendant contended that he paid more than $10,000 but he was not permitted to present evidence on that issue. Plaintiff testified that she moved into the co-op in April 2005 and had paid all of the carrying costs. She later admitted that defendant had paid the maintenance for "several months." She testified that there was an outstanding mortgage of $185,000 on the co-op. Plaintiff also contended that she was spending $375 per week for child care. She testified that she was earning between $75,000 and $85,000 per year.

Defendant contended at the hearing that he was unemployed because of a health condition resulting from the removal of his colon. According to plaintiff's testimony, defendant does have a medical problem, but nonetheless he was able to work in the family restaurant business and owned a medical supply business during their marriage. At the hearing defendant asked that he be permitted to spend time with the couple's child at his house in Queens. Plaintiff testified that he should only be permitted to visit the child at her home because, she contended, defendant's father was an alcoholic and his mother was abusive to the child.

On January 31, 2006, the trial judge rendered an oral opinion, determining that "plaintiff and her parents will retain the co-op," because "defendant never resided in the home, and his only contributions made toward it was . . . a couple of months of maintenance payments." The judge ordered plaintiff to re-pay defendant the $10,000 that he contributed to the purchase, plus five percent interest, plus $1790 representing the money the judge estimated that he contributed to maintenance. The court awarded sole custody of the child to plaintiff due to defendant's failure to visit the child for the past year and his lack of "interest in being a parent" to the child. The judge permitted visitation at plaintiff's home. The judge also ordered defendant to pay $258 per week in child support after "imputing $45,000 a year in salary to the defendant." The judge reasoned that he was making this amount when the parties were married and was capable of earning that salary. She also based the child support amount on the fact that plaintiff earned $80,000 per year and spent $375 per week in child care expenses.

II

Ordinarily we will defer to the factual findings of the trial court provided they are based on substantial credible evidence, and we give particular deference to the findings of the Family Court because of its expertise in matrimonial issues. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). However, our review of a trial court's decision on legal issues is de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

In this case, we appreciate the difficulty facing the trial judge in dealing with litigants who did not adequately present their legal issues to the court, and with a pro se defendant who did not comply with the Court Rules. Nonetheless, we are constrained to reverse the judgment and remand for several reasons.

First, in a case in which the divorce complaint alleges that the parties are married and both parties place before the court evidence from which one could conclude that they were married in another state, the trial court must first decide whether they are married as a matter of law. If the parties are married, and otherwise satisfy the legal standards for divorce, they are entitled to a divorce. In New Jersey, a legal marriage requires a marriage license. N.J.S.A. 37:1-10; Yaghoubinejad v. Haghighi, 384 N.J. Super. 339, 340-41 (App. Div. 2006). But these parties had their religious marriage ceremony in New York. While neither party has briefed the issue, it appears that New York may well recognize their marriage as a result of their formal religious wedding. See Persad v. Balram, supra.

Second, equitable distribution is a statutory right that applies to persons who are married. N.J.S.A. 2A:34-23. If the parties are not married, plaintiff is not entitled to statutory equitable distribution. See Mitchell v. Oksienik, 380 N.J. Super. 119, 126-28 (App. Div. 2005). In this case, the only asset in dispute is what plaintiff described as a two-bedroom luxury co-op in Fort Lee. Defendant contends that it is now worth considerably more than the $250,000 they paid for it. If the parties are not married, the court should have applied equitable concepts of partition as opposed to statutory equitable distribution. Ibid. See also Olson v. Stevens, 322 N.J. Super. 119, 123 (App. Div. 1999). And, in any event, it is not clear from the court's decision why defendant was not entitled to share in the increase in value of the property, proportional to his contribution to the purchase price. See Bednar v. Bednar, 193 N.J. Super. 330, 333 (App. Div. 1984).

Defendant also contends that, since plaintiff's parents are part-owners of the co-op, they may be indispensable parties. We do not decide the issue since it was not presented to the trial court, but defendant may raise the issue on remand. Any such application on remand shall be on notice to the parents.

We also conclude that under the circumstances, defendant, who had provided the requested financial information with his motion to reinstate, should have been given an opportunity to pay the $100 fee to reinstate his answer and an opportunity to at least explain why he did not appear at the Early Settlement Panel. Moreover, plaintiff's pre-hearing notice, which requested $150 per week in child support, did not fairly place defendant on notice that he might be required to pay $258 per week in child support. Finally, on this record, we cannot conclude that the issues of child custody and visitation should have been decided on a summary, default basis.

Accordingly, we remand this matter to the trial court for further proceedings. The trial court shall first determine whether, as a matter of law, the parties are married under the laws of the State of New York, where their religious marriage ceremony took place. Then, if the parties cannot resolve their differences, the court shall conduct a plenary hearing at which the parties shall be permitted to present evidence on the issues of child support, custody and visitation, and, depending on whether the parties are married, either equitable distribution or partition.

Reversed and remanded.

 

There is no explanation in the record as to why the Fort Lee co-op was vacant from June 2004 to April 2005. Plaintiff's complaint, filed on December 1, 2004 in Middlesex County, recited that she lived in East Brunswick.

We find no support in the record for plaintiff's contention that defendant did not provide all of the requested discovery. Nor do we find support for her contention that defendant was part-owner of a restaurant. Plaintiff's brief also cites to her attorney's letters in the record, to support her contentions concerning visitation. Those letters are not legally competent evidence.

(continued)

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A-3500-05T1

February 28, 2007