LOUIS A. WHITAKER, JR. v. YVONNE B. WHITAKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4089-04T14089-04T1

LOUIS A. WHITAKER, JR.,

Plaintiff-Respondent,

v.

YVONNE B. WHITAKER,

Defendant-Appellant.

________________________________________________________________

 

Argued November 9, 2006 - Decided February 7, 2007

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1116-03.

Lessie Hill argued the cause for appellant.

Esther M. Sieira-Alvarez argued the cause for respondent (Garces & Grabler, attorneys; Ms. Sieira-Alvarez, on the brief).

PER CURIAM

In this dissolution case, defendant Yvonne B. Whitaker appeals from a dual judgment of divorce entered on March 7, 2005. The judgment was accompanied by a thorough and well-reasoned written decision setting forth the court's findings and conclusions after a ten-day trial. We affirm essentially for the reasons set forth by Judge Kathryn A. Brock in her letter opinion dated March 7, 2005.

I

The parties were married on January 29, 1999. A child was born to defendant on April 30, 1999, but it was undisputed that the child was fathered by a man other than defendant. Defendant also had a daughter from a prior marriage, who lived with the parties when they resided together.

The parties began dating in 1989 and had a volatile off-and-on relationship with frequent breakups, move-outs and incidents of infidelity. In December 1997, the parties were living together and became engaged. After the engagement, however, plaintiff learned that defendant was involved in a relationship with another man. He ended the engagement and moved out of their shared apartment. In August 1998, plaintiff purchased a one-bedroom condominium in Hillside. Defendant was living with the "other man," Claude Beard, and was pregnant with his child who was born in April 1999.

Some time between October and December 1998, however, the parties became romantically involved again, notwithstanding defendant's pregnancy by Beard. By the end of 1998 defendant moved into plaintiff's condominium with her daughter. The parties were married on January 29, 1999. Defendant was not working at the time because of complications with her pregnancy and she did not contribute to the household.

After the baby was born in April 1999, plaintiff assisted in caring for the child. Defendant returned to work and began contributing to household expenses. At all times, however, the parties maintained separate bank accounts, filed separate tax returns, and were responsible for their individual personal expenses and debts, such as car payments and credit card bills.

In October 1999, when the baby was six months old, defendant moved out of plaintiff's condominium, taking both of her children and all of her possessions, to resume living with Beard. She claimed plaintiff was cheating on her. The parties were not communicating with each other and defendant did not permit plaintiff to visit with the baby.

Some time in 2000, however, defendant and her two children moved back to plaintiff's condominium because defendant was unhappy with Beard. By January 2003, plaintiff filed the complaint for divorce. Nevertheless, the parties continued to live together in plaintiff's condominium until the trial in December 2004.

At the time of trial, plaintiff was working part-time as a truck driver for Peerless Beverage Company and as a firefighter in Hillside. Plaintiff's W-2 forms for 2004 showed combined earnings from his two jobs of $62,767.53. Defendant was employed full-time at the post office and part-time as a security guard with Motivated Security Services, Inc. Defendant's W-2 forms for 2004 showed a total income from her two jobs of $64,313.38. Each of the parties had debts for which they did not consider the other responsible.

II

In the divorce proceedings, plaintiff sought a fifty-fifty split of parenting time with the child born during the marriage. He requested visitation three nights a week, alternate birthdays and holidays and shared vacation time. Plaintiff was willing to support the child on a voluntary basis, sharing child care expenses equally with defendant, but objected to legally enforceable child support because of ongoing legal proceedings between defendant and Beard in which Beard refused to surrender his parental rights and was ordered to pay child support. Plaintiff stated that if Beard were willing to relinquish his parental rights, plaintiff would do whatever necessary to make the child his own. Defendant agreed that plaintiff should have liberal visitation with the child and requested that he be granted joint legal custody and obligated to pay child support pursuant to the guidelines, notwithstanding the fact that Beard was paying child support.

Although there was no dispute that Beard was the father of the child, the parties agreed to identify plaintiff as the child's father on the child's birth certificate. Plaintiff acknowledged that he voluntarily assumed the role of parent for the child, supported him financially and participated in his upbringing. As such, plaintiff had developed a strong and loving relationship with the child and referred to the child as his son, not his step-son. The child called him "daddy." Plaintiff was adamant, however, that he did not want Beard involved in the child's life if he was obligated to support the child. During the marriage, plaintiff had strenuously objected to defendant filing the paternity action and seeking support from Beard. Plaintiff thought defendant had ended the paternity action because of his objection. It was only during the divorce litigation that plaintiff learned defendant had continued pursuing Beard. Moreover, defendant continued to receive child support payments from Beard during her marriage to plaintiff.

Beard testified at trial that during the year defendant lived with him after she married plaintiff, he supported defendant and the child through his employment as a truck driver. During that time, they called the child "Claude Beard" and began legal proceedings to officially change his name. Beard testified further that after defendant returned to plaintiff's condominium in 2000, he continued to see the child at daycare, for which he paid the tuition.

At the time of trial, Beard was living in South Carolina with his mother and did not wish to surrender his parental rights to the child. He considered the child his and intended to raise the child. Moreover, he wanted visitation to establish a parental relationship with his son. Although he had been out of work for a while and fell into arrears on his child support obligation, by the time of trial, he was employed and had resumed making payments. Beard did not believe plaintiff had any legal obligation to support the child but recognized that the child had a relationship with plaintiff and that severing the relationship would be harmful to the child.

Judge Brock found that plaintiff was the child's psychological parent and she encouraged him to voluntarily support the child. She concluded, however, that plaintiff was not legally obligated to support the child because Beard was willing and legally required to do so. Moreover, Beard did not wish to relinquish his parental rights and sought to maintain a relationship with the child. Nevertheless, Judge Brock granted plaintiff liberal visitation for the child's best interest. She noted that if the parties were unable to resolve a visitation schedule, they could request mediation.

III

Defendant sought equitable distribution of plaintiff's condominium based upon its current value. She claimed entitlement to the money based upon plaintiff's alleged infidelity and her financial needs in establishing a new home for herself and her children. Interestingly, defendant did not think of her relationship with Beard as infidelity, claiming she and Beard were not intimate during the year she lived with him while married to plaintiff.

The evidence demonstrated that plaintiff purchased the condominium in August 1998 when defendant was not involved in his life. He paid $55,000, with a mortgage of $53,000, for the one-bedroom condominium. He used his personal savings and income to cover the down payment, closing costs and furnishings. Defendant did not contribute any money toward purchasing or furnishing the condominium. When defendant moved into it, her furnishings were placed in storage or sold. Plaintiff paid the $590 monthly mortgage payment entirely from his funds. Defendant never contributed to the mortgage, but did contribute to the maintenance fee when she moved back with plaintiff in 2001. She made a total of six maintenance payments at $130 per month.

As of February 7, 2003, the principal balance on the mortgage was $51,000. In February 2004, the condominium had an appraised value of $98,000. In January 2005, the appraised value had increased to $123,000, even though no improvements had been made since the time of purchase other than to install a new washer and dryer.

Judge Brock found that the condominium was not purchased by plaintiff in contemplation of marriage and that the increase in the condominium's value was due to market forces. She concluded that defendant was not entitled to distribution of this premarital asset, but was entitled to fifty percent of the paydown of the mortgage between January 1999 and February 2005, except for the one-year period of separation, as well as fifty percent of the value of the used washer and dryer that would remain in the condominium. Judge Brock calculated these amounts at $1,405 to be paid by plaintiff to defendant within thirty days of entry of the judgment.

IV

The parties each had pensions through their employers. Plaintiff had a 401(k) account through his employment at Peerless, but he had depleted that account in 2002 to pay living expenses while he was attending the fire academy.

In 1998, the parties purchased a timeshare in the Poconos for between $2,000 and $3,000. It had a monthly cost of $90. Plaintiff was not interested in keeping the timeshare and he was amenable to defendant taking that asset if she assumed the payments.

In the final judgment, Judge Brock found that each of the parties were entitled to keep their pensions and that defendant was not entitled to any interest in plaintiff's 401(k) account. The Pocono timeshare was to be sold and the proceeds divided equally.

V

Finally, defendant sought fees for the entire divorce proceeding. Judge Brock declined to award the full amount of fees to defendant but granted her $635 in counsel fees and costs for the motion decided on September 30, 2005.

VI

In this appeal, defendant argues:

POINT ONE

COURT ERRED IN NOT ORDERING PLAINTIFF TO PAY CHILD SUPPORT NOTWITHSTANDING THAT HE IS NOT THE BIOLOGICAL FATHER OF THE CHILD EQUITABLE ESTOPPEL SHOULD HAVE BEEN APPLIED.

POINT TWO

TRIAL COURT FAILED TO GIVE CONSIDERATION TO ABILITY OF PLAINTIFF AND BIOLOGICAL FATHER TO PAY CHILD SUPPORT

POINT THREE

COURT ERRED IN NOT AWARDING JOINT CUSTODY OF CHILD

POINT FOUR

TRIAL COURT ERRED IN NOT AWARDING DEFENDANT EQUITABLE DISTRIBUTION OF THE CONDOMENINUM [SIC]

POINT FIVE

THERE WAS NO EVIDENCE TO SUPPORT THE COURT'S MORTGAGE PAYDOWN ANALYSIS

POINT SIX

THE AWARD OF EQUITABLE DISTRIBUTION TO DEFENDANT WAS UNFAIR

POINT SEVEN

THE COURT ERRED IN NOT AWARDING DEFENDANT EQUITABLE DISTRIBUTION OF THE CONDO

POINT EIGHT

DEFENDANT SHOULD HAVE RECEIVED EQUITABLE DISTRIBUTION OF PLAINTIFF'S 401K

POINT NINE

THE COURT WAS BIASED TOWARDS DEFENDANT

POINT TEN

THE COURT ERRED IN THE AMOUNT OF THE AWARD OF ATTORNEY'S FEES

We have carefully considered the record in light of defendant's arguments and the applicable law. We are satisfied that defendant's arguments lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E). As we have indicated previously, Judge Brock rendered an extensive, thorough and well-reasoned written decision. We are satisfied that her findings of fact are adequately supported by the record and we affirm substantially for the reasons set forth in the letter opinion dated March 7, 2005. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comment.

In defendant's Point Nine, she contends that "[t]he trial judge was biased against [her]" and "showed favoritism toward plaintiff's attorney." Defendant does not, however, provide any citations to the record to demonstrate the validity of her claim. Moreover, we find no support for that argument in our review of the record.

Affirmed.

 

(continued)

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11

A-4089-04T1

 

February 7, 2007