DAPHNE SPECK-BARTYNSKI v. ROBERT BARTYNSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5306-07T35306-07T3

DAPHNE SPECK-BARTYNSKI,

Plaintiff-Appellant,

v.

ROBERT BARTYNSKI,

Defendant-Respondent.

________________________________

 

Argued September 15, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex County,

Docket No. FM-12-2465-07C.

Timothy J. Dey argued the cause for appellant.

Howard Duff argued the cause for respondent (Nemergut & Duff, attorneys; Mr. Duff, of counsel; Christopher M. Kelly, on the brief).

PER CURIAM

Plaintiff Daphne Speck-Bartynski appeals from that portion of a final judgment of divorce (FJD) equitably distributing investment accounts containing about $1.5 million in co-mingled funds derived from defendant Robert Bartynski's inheritance, one-third to plaintiff and two-thirds to defendant. We affirm.

The facts are not materially in dispute. The parties were married on May 9, 1986, had two children both of whom are presently unemancipated and divorced by FJD on July 23, 2008. A marriage settlement agreement (MSA) of April 11, 2008, incorporated therein, resolved all issues of custody, parenting time, child support and alimony, the latter of which was permanent and amounted to slightly more than $30,000 per year. At the time of divorce, defendant, aged 49, was earning $115,000 annually as a physics professor at Rutgers University, and plaintiff, aged 48, was primarily a homemaker, with a college degree and experience as a paralegal.

In 1998, upon his father's death, defendant received an inheritance of about $2.5 million, the lion's share of which approximately $2,186,000 was co-mingled with marital funds. A substantial portion of these monies were placed in investment accounts, namely Charles Schwab ($759,107) and Smith Barney ($174,527), to which both parties had access. Another $495,000 was used to purchase the couple's summer home in Cape May, which by time of divorce, had appreciated in value to $955,000. A portion of the co-mingled funds $510,000 was also used by plaintiff to purchase her post-marital residence, which the MSA treated "as an advance of equitable distribution." Another $45,989 was placed on deposit at Wachovia and $75,000 was lent to plaintiff's brother, $20,000 of which had been paid back at time of divorce, leaving a $55,000 balance on the loan. Finally, $120,000 of the co-mingled inheritance funds was used by plaintiff to pay down the then existing mortgage on the marital home.

The latter event prompted defendant, upon discovery of the pay-down, to contact the brokerage house to curtail plaintiff's access to the funds by requiring two signatures on all large withdrawals. According to defendant, his intention was to preserve the inherited funds for the benefit of his children and grandchildren in the same manner as his father had done. Defendant's account was not disputed.

Nor was there any dispute over the inclusion of these co-mingled inherited assets in the marital estate or their value. In fact, the parties stipulated that this property was subject to equitable distribution, and the only issue was the percentage allocation to the parties. On this score, following a hearing, the Family Part judge ruled that the $955,000 fair market value of the Cape May house, the $120,000 used to pay off the marital home mortgage, and the $55,000 loan balance were to be divided equally, and there is no challenge to this division on appeal. As to the other assets purchased with co-mingled inheritance funds, namely the two investment accounts, the Wachovia account and the $510,000 fair market value of the plaintiff's house totaling approximately $1,491,500 the court distributed two-thirds to defendant and one-third to plaintiff, reasoning in part:

It is of particular significance that although the monies were held in joint accounts, the defendant attempted to limit the plaintiff's access to those accounts by the requirement of two signatures. The Court finds that this restriction of the use of the asset is significant.

Plaintiff challenges this unequal allocation on appeal as inequitable. We disagree.

A trial court has broad discretion regarding the division of marital assets. Wadlow v. Wadlow, 200 N.J. Super. 372, 377

(App. Div. 1985). An award of equitable distribution will be affirmed "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). An unequal distribution is no basis to disturb the trial judge's division of property. Rothman v. Rothman, 65 N.J. 219, 232 n.6 (1974); DeVane v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995). Moreover, the party challenging the distribution bears the burden of demonstrating an abuse of discretion. See LaSala, supra, 335 N.J. Super. at 6 (App. Div. 2000); Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978).

Our independent review of the record convinces us that the distribution of the assets was well within the judge's discretion and that there is no basis for our interference. Suffice it to say, the judge considered all relevant statutory elements for equitable distribution, see N.J.S.A. 2A:34-23.1, placing significance on defendant's singular contribution, through inheritance, to the acquisition of the marital assets whose division is now in dispute, see N.J.S.A. 2A:34-23.1(i), as well as on defendant's undisputed intention as to their ultimate disposition and the degree of control exercised in the wake of plaintiff's contrary action. We are satisfied that the judge's factual findings were supported by substantial credible evidence, and his conclusions were appropriate.

Affirmed.

(continued)

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A-5306-07T3

September 25, 2009