NANCY M. HREHA-COLOCCIA v. LEONARD COLOCCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3892-07T13892-07T1

NANCY M. HREHA-COLOCCIA,

Plaintiff-Appellant,

v.

LEONARD COLOCCIA,

Defendant-Respondent.

_________________________________________

 

Argued February 11, 2009 - Decided

Before Judges Rodr guez and Payne.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-111-06.

John G. Lynch, Jr., argued the cause for appellant.

Leonard Coloccia, respondent, argued the cause pro se.

PER CURIAM

Plaintiff, Nancy Hreha-Coloccia (mother), challenges those portions of the March 3, 2008 final judgment of divorce in favor of Leonard Coloccia (father) concerning: equitable distribution; child support arrears due pursuant to a pendente lite order; and compelling the parties to file a joint state and federal income tax return for 2005 and 2006. We affirm in part and reverse in part.

After twenty years of marriage, mother sued for divorce, alleging acts of extreme cruelty. Father filed an appearance. Two daughters were born of the marriage, now ages twenty and eighteen. The parties were divorced on March 3, 2008.

These are the proofs presented to the trial judge that are relevant to the issues on appeal. Prior to the marriage, father owned a small home in Clifton. Father put down $60,000 to $80,000 as a deposit from his own funds. The parties were dating when father purchased the Clifton home. The parties lived there together from the date of their marriage in October 1987 until 1999. The Clifton house was sold so they could jointly purchase a home for $206,000 in Branchville. Mother described the Branchville property as a three-bedroom house with a barn, located on a three-and-one-half acre lot. Father does not dispute that both parties worked together to develop the Branchville property.

According to mother, shortly after the parties' marriage, she became aware that father owed $10,000 to the IRS, which was ready to seize assets from father's delivery business. This debt was paid in part by mother from the settlement proceeds of an automobile accident. According to mother, in 2003, father did not report a withdrawal from his IRA on his federal income tax return. This caused another tax liability. Mother alleged that both parties paid for this assessment from joint funds. Mother filed separate income tax returns in both 2005 and 2006.

At some point during the marriage, a TV satellite company damaged the roof of the marital home. A claim was filed, which was settled for $3,800. Mother used $200 of that $3,800 to make other repairs to the house. She used the balance of the settlement to pay the mortgage, taxes and shelter expenses for herself and the daughters in September 2005. At that time, father's support obligation had not yet commenced.

The oldest daughter left her mother's residence in August 2007 to live with her father. She remained with her father until leaving for "a program" in Washington, D.C. in the early part of February 2008.

Following a trial, the judge required both parties to file joint state and federal income tax returns for the tax years 2005-2007. Father's child support arrears were set at $3,793.67. However, father was given credit against the arrears as follows: $910 for the six months that the eldest daughter resided with him, from August 2007 through February 2008; $1,800, representing his fifty-percent interest in the proceeds of the settlement with the TV satellite company; and $1,000, representing his fifty-percent interest in two joint bank accounts. Therefore, arrears were deemed reduced to $83.67.

On appeal, mother contends that the judge's ruling with respect to equitable distribution of the marital premises, which awarded her forty-five percent of the equity, was plain error. We disagree.

The equitable distribution of marital assets is a fact-intensive inquiry, guided by N.J.S.A. 2A:34-23.1. The statue setting forth the criteria provides, in relevant part:

In making an equitable distribution of property, the court shall consider, but not be limited to, the following factors:

a. The duration of the marriage or civil union;

b. The age and physical and emotional health of the parties;

c. The income or property brought to the marriage or civil union by each party;

d. The standard of living established during the marriage or civil union;

e. Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;

f. The economic circumstances of each party at the time the division of property becomes effective;

g. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;

h. The contribution by each party to the education, training or earning power of the other;

i. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;

j. The tax consequences of the proposed distribution to each party;

k. The present value of the property;

l. The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;

m. The debts and liabilities of the parties;

n. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;

o. The extent to which a party deferred achieving their career goals; and

p. Any other factors which the court may deem relevant.

[N.J.S.A. 2A:34-23.1.]

We should not disturb the trial judge's decision as to asset eligibility and valuation if there is sufficient credible evidence on the record to support it. Rothman v. Rothman, 65 N.J., 219, 233 (1974). Property allocation is reviewed under an abuse-of-discretion standard. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978). An abuse of discretion occurs "when a decision is 'made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985)).

Judged against this standard, we find here no abuse of discretion in the allocation or apportionment of the marital estate. It is undisputed that father used substantial premarital assets to purchase the Clifton home. The net proceeds from the sale of the Clifton home were used to purchase the Branchville home. Mother received forty-five percent of the equity of the Branchville home despite the fact that she made no financial contribution to the purchase of the Clifton house. The judge's ruling on equitable distribution here is supported by credible evidence in the record.

Mother also contends that the judge improperly reduced father's child support arrears obligations. We agree in part. N.J.S.A. 2A:17-56.23 prohibits the retroactive modification of child support obligations. Therefore, the $910 credit for the six months that the eldest daughter lived with father is an impermissible, retroactive modification of child support obligations. However, the other two credits are allowed. These did not modify the child support arrangements. Rather they are deemed payments, from the father's assets, towards the arrears.

Mother also argues that the order compelling the parties to file joint tax returns for the tax year 2007 and amended joint tax returns for the tax years 2005 and 2006 is plain error. We agree. Given father's history of underestimating his income, and the fact that mother had already filed returns for those years, it would be inequitable to force mother to risk exposure to another tax liability because of father's failure to pay.

Finally, mother requests that, "in the event that the case is remanded, the matter should be assigned to a different judge." Because we are ordering a remand for the sole purpose of entering an amended judgment consistent with this opinion, we do not reach this issue.

In summary, we reverse those parts of the judgment that: compel mother to file joint state and federal income tax returns; and grant a $910 credit to father. In all other respects, the judgment of divorce is affirmed. We remand for
the entry of an amended judgment.

(continued)

(continued)

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A-3892-07T1

September 2, 2009