DONA M. DONALDSON v. RICHARD L. DONALDSON 14, 2010 -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5927-07T2

DONA M. DONALDSON,

Plaintiff-Respondent,

v.

RICHARD L. DONALDSON,

Defendant-Appellant.

___________________________________________________________

April 5, 2011

Submitted September 14, 2010 - Decided

Before Judges Graves and Messano.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Camden County

Docket No. FM-04-1292-07-Y.

Weber Gallagher Simpson Stapleton Fires &

Newby LLP, attorneys for appellant (Christian

V. Badali, on the brief).

Sherman, Silverstein, Kohl, Rose & Podolsky,

P.A., attorneys for respondent (Matthew

Podolnick, on the brief).

PER CURIAM

In this matrimonial matter, defendant Richard Donaldson appeals from part of an amended dual judgment of divorce that awarded plaintiff Dona Donaldson one-half of the value of four parcels of real property with a stipulated value of $310,000. On appeal, defendant contends the matter should be remanded with instructions to determine equitable distribution without including the three properties defendant purchased in his name alone, prior to the parties' marriage on October 20, 1984.1 The judgment was entered following a six-day trial in which only the parties testified. For the reasons that follow, we affirm.

Plaintiff was born in 1952, and is now fifty-eight years old. Defendant was born in 1937, and is seventy-three. The parties met in 1970, when plaintiff was eighteen and living with her parents. On May 5, 1971, plaintiff gave birth to the parties' first child.

In 1972, at defendant's request, plaintiff and the child moved out of her parents' home into an apartment located in close proximity to defendant's residence. Plaintiff testified that defendant proposed to her on New Year's Eve in 1972 and gave her an engagement ring. She also testified that defendant slept at her apartment "throughout the week" and when her mother took the child on weekends, plaintiff stayed at defendant's apartment.

According to plaintiff, she was employed "[m]ost of the time" and gave defendant the money she earned. Plaintiff testified that defendant gave her "an allowance" and she thought the arrangement "made sense" because defendant "paid the bills" and told her "the benefits would be greater if he controlled the finances."

Plaintiff also testified that defendant "was an excellent father," and the parties always "did everything together" as a family. Their second child was born on April 9, 1979.

The first property at issue, 528 Royden Street, Camden, New Jersey (528 Royden), was purchased by defendant on July 25, 1978, for $3500. Plaintiff testified defendant told her that her name "was on the deed." In addition, plaintiff testified she moved into 528 Royden with the parties' child while defendant "rehabbed the whole house" because it was "cost effective," and the parties thought that it would benefit them "down the line." The parties resided at 528 Royden after their marriage in 1984, and they stipulated at trial that the fair market value of the property was $87,000.

Defendant also purchased and rehabilitated three additional properties. On August 1, 1983, he purchased 524 Royden Street, Camden, New Jersey (524 Royden), for the sum of $1550; and on September 19, 1983, he purchased 609 Williams Street, Camden, New Jersey (609 Williams) for $2500. The parties agreed that the fair market value of 524 Royden was $85,000, and the value of 609 Williams was $69,000. In addition, on November 1, 1985, after the parties were married, defendant purchased a fourth property in his name alone located at 611 Williams Street, Camden, New Jersey (611 Williams) for the sum of $1200. The stipulated value for this property was $69,000. Thus, the stipulated value of all four properties was $310,000.

After the parties were married, they formed Donaldson Builders, a home improvement construction company in 1992. Both parties were authorized to write checks from the business account. In addition, plaintiff started a daycare business in 2000 known as Brownstone Academy at 524 Royden Street. The Brownstone Academy was still active at the time of trial, but Donaldson Builders had ceased operating after defendant retired in 1999.

In a letter to plaintiff, defendant acknowledged he "would take the stand and admit" that she gave him checks dating back to whatever year "[she] would want." Nevertheless, defendant claimed he had taken care of plaintiff "from the very first day" because she always spent more than she earned. He further stated: "There is no cash money for you to get, nor would I give it if I had it, and do you actually believe that I would give something for you and another to enjoy? I would die before I give in to that."

At trial, defendant argued that all four properties were exempt from equitable distribution because they were purchased with defendant's "own funds"; plaintiff did not contribute to the improvements to the properties; and three of the properties were purchased prior to the parties' marriage. The trial court rejected these arguments, however, and its findings and conclusions regarding each of the properties included the following:

Although the parties did not live together until their marriage in 1984, during this time they maintained a committed relationship, lived in close proximity to each other, saw each other daily and continued their committed relationship . . . after the birth of their children.

Although the parties maintained separate residences until 1984 the year they were married, the parties during the time leading up to their marriage engaged in a marriage type relationship. They socialized together, ate out together, traveled together and took care of their children.

From the beginning of the parties' relationship they commingled their earnings. The plaintiff gave her income to the defendant and in return the defendant gave the plaintiff an allowance, kept the remainder and paid for living expenses for plaintiff and the children. This practice continued during the course of the marriage.

Eventually the plaintiff moved into an apartment located . . . approximately 5 minutes from defendant's residence with the parties' daughter, Felicia. The defendant paid the rent and the utilities for the apartment.

On July 25th, 1978, during the time that the parties were in a relationship, but before they married, 528 Royden Street, Camden, New Jersey was purchased for $3,500. Although the property was titled solely in defendant's name, the defendant consulted with the plaintiff regarding the purchase and was lead to believe by the defendant that her name was on the deed. At the time 528 Royden Street was purchased plaintiff was pregnant with the parties' second child who was born approximately 9 months after the property was purchased. The plaintiff and the parties' daughter moved into 528 Royden Street shortly after its purchase. The Court finds that 528 Royden Street was purchased in contemplation of the parties' continued relationship and/or marriage. That the decision to purchase the property was a joint one. That the parties conferred regarding rehabilitation of the property, and in light of the fact that plaintiff would give the defendant her entire paycheck, it was purchased with joint funds, thus this property is subject to equitable distribution.

On August 1st, 1983, before the parties married, the property located at 524 Royden Street, Camden, New Jersey was purchased for $1,550. After the plaintiff started Brownstone Academy in 2000, located in this property, extensive improvements were made to this property from funds in the Donaldson Builder's account. On September 19th, 1983 prior to the parties' marriage 609 Williams Street, Camden, New Jersey was purchased for $2,500. Although both properties were purchased in defendant's name, the Court finds that the parties consulted on the purchase. The defendant lead the plaintiff to believe that her name was on the deeds and the properties were purchased with joint funds. Accordingly these properties are subject to equitable distribution.

In 1984 when the parties married the defendant moved into 528 Royden Street and lived there with the plaintiff and the parties' children. Ultimately it became the marital residence.

Following the parties' marriage . . . the property located at 611 Williams Street, Camden, New Jersey was purchased for $1,200. Despite the fact that this property was purchased after the marriage, it is also titled in the defendant's name only. The Court finds that the plaintiff believed that her name was on the deed, that the parties conferred about the purchase and rehabilitation of the property and it was purchased and rehabilitated with joint funds. Accordingly it is subject to equitable distribution.

. . . .

Although during the relationship the plaintiff remained the primary caretaker of the children and homemaker, she was employed during most of the parties' relationship. The fact that she was the primary caretaker for the children enabled the defendant to run Donaldson Builders and to have time to rehabilitate and maintain the properties.

On appeal, defendant presents the following issues:

POINT I

MAY NON-MARITAL PROPERTY BECOME MARITAL PROPERTY BASED UPON A THEORY THAT THE MARRIAGE ACTUALLY BEGAN PRIOR TO THE ACTUAL MARRIAGE DATE UNDER NEW JERSEY LAW?

POINT II

WAS IT AN ABUSE OF DISCRETION FOR THE TRIAL JUDGE TO APPORTION NON-MARITAL PROPERTY TO PLAINTIFF AND TREAT SAME AS MARITAL PROPERTY?

After reviewing these contentions in light of the entire record and the applicable law, we are satisfied defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We add only the following comments.

When reviewing equitable distribution decisions, our role is "to determine whether the court has abused its discretion." La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). We must decide "whether the result could reasonably have been reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence." Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978).

Generally, "property owned by a husband or wife at the time of marriage will remain the separate property of such spouse and in the event of divorce will be considered an immune asset and not eligible for distribution." Valentino v. Valentino, 309 N.J. Super. 334, 338 (App. Div. 1998) (citing Painter v. Painter, 65 N.J. 196, 214 (1974)). However, when property is purchased in contemplation of marriage and the parties have adequately expressed their intention to create a marital partnership prior to the marriage ceremony, the property will be subject to equitable distribution. Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div.), certif. denied, 114 N.J. 287 (1988); accord Berrie v. Berrie, 252 N.J. Super. 635, 646 (App. Div. 1991). In addition, if a non-owner spouse contributes to the appreciation of premarital property, then he or she will be entitled to share in the increased value. Valentino, supra, 309 N.J. Super. at 338.

In this case, the trial court found that the parties engaged in a marital-type relationship after the birth of their first child and that all four properties were eligible for distribution. In addition, the court expressly considered and applied the statutory factors enumerated in N.J.S.A. 2A:34-23.1 before deciding that the total value of the properties should be equally shared by the parties. We are satisfied that there is sufficient credible evidence to support the trial court's findings and that the matter was correctly decided. Accordingly, we affirm substantially for the reasons stated by Judge Fox in her comprehensive oral decision on June 24, 2008.

1 Although defendant raised additional issues in his amended notice of appeal, those issues have been withdrawn and the sole issue on appeal is whether the real estate defendant acquired prior to the parties' marriage is subject to equitable distribution.