EDWARD CURLEY v. ROBERTA CURLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EDWARD CURLEY,

Plaintiff-Appellant,

v.

ROBERTA CURLEY,

Defendant-Respondent.

___________________________________

July 9, 2015

Submitted September 30, 2014 Decided

Before Judges Ostrer and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-834-09.

Edward Curley, appellant pro se.

Joseph J. Haskins, Jr., attorney for respondent.

PER CURIAM

This divorce case returns to us after a remand. In our initial decision on the plaintiff's appeal and defendant's cross-appeal, we largely affirmed the trial court's decision, reached after a lengthy trial. Curley v. Curley, No. A-1304-10 (App. Div. May 9, 2012) (Curley I). However, we were not satisfied that the trial court provided adequate findings of fact in support of its resolution of two equitable distribution issues.

The first issue, raised on plaintiff's appeal, pertained to the court's allocation to plaintiff of twenty percent of the retained income from an otherwise exempt rental property in Teaneck gifted to defendant by her family. Plaintiff argued the court should have allocated significantly more to him. In our decision, we sought an explanation of the percentage chosen by the trial court, consistent with Rule 1:7-4 and Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986). Curley I, supra, slip op. at 48.

The second issue, raised on defendant's cross-appeal, involved the court's determination that defendant dissipated $89,606.58 in assets subject to equitable distribution, and plaintiff was entitled to twenty percent of that amount. We were not satisfied the court adequately addressed the factors identified in Kothari v. Kothari, 255 N.J. Super. 500, 507 (App. Div. 1992) for determining whether a spouse has dissipated assets. Curley I, supra, slip op. at 52-55. In particular, the court did not analyze defendant's reasons for the excessive expenditure of marital funds post-separation. Id. at 55-58.

In response to our remand, the trial court issued a supplemental opinion on August 29, 2013, providing additional reasoning for its conclusions as to the two issues. Only plaintiff challenges the trial court's supplemental decision. He renews his contention that he was entitled to more than twenty percent of the income generated by the Teaneck property. He argues the trial judge was biased. He contends the court erred in limiting discovery on remand, and in precluding presentation of new evidence. He also attempts to revisit a 2010 pre-trial protective order that set restrictive conditions for the taking of a de bene esse deposition of defendant. Further, he seeks to revisit the court's dissipation finding and its allocation, arguing that the court should have found $26,000 more in dissipation, and should have charged all of that dissipation against defendant.

Having considered plaintiff's arguments in light of the record and applicable legal principles, we affirm substantially for the reasons set forth in the trial court's decision on remand. We add the following brief comments, addressing first what we may characterize as plaintiff's procedural arguments, and then the court's effort to amplify its rationale for its eighty to-twenty division of the income from the Teaneck property.

On remand, plaintiff served defendant with extensive discovery requests. At the remand hearing, he also sought to offer new evidence in the form of testimony and writings of third-party witnesses, to further prove the extent and value of his contribution to the management and improvement of the Teaneck property, and to establish the nature of his own health problems.

The judge determined that generally, the parties had their full opportunity to conduct discovery prior to trial, and any additional discovery should be supported by "extraordinary reasons." The court then permitted limited discovery directly related to the issues on remand. At the remand hearing, the court precluded plaintiff's witness from testifying about plaintiff's work on the Teaneck property, stating it was duplicative of findings the court made in its initial decision. The court also sustained a hearsay objection to the introduction of a certification, and a doctor's note.

We discern no error in the court's decisions in this regard. We review for an abuse of discretion a court's decisions regarding discovery, see Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011), and its evidentiary rulings. See Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008).

Fundamentally, plaintiff misperceived the purpose of our remand. It was not an invitation to retry issues resolved in the first appeal. The trial court correctly barred plaintiff from revisiting issues that were outside the scope of remand. For the same reason, we reject plaintiff's argument that the court misallocated and underestimated defendant's dissipation. We remanded for additional explanation to assure the court had not overestimated the amount. We found no error in the court's allocation. Defendant does not challenge the court's remand decision on dissipation. In any event, we conclude the court has adequately supported its decision based on its application of the Kothari factors. Therefore, no further comment on the issue is required.

Moreover, we made no finding that the original trial record was inadequate such that it would have prevented the court from providing the explanation we requested in Curley I. Consequently, we did not mandate that the trial judge reopen discovery or allow additional evidentiary submissions. On the other hand, it was within the court's discretion to do so, to the extent it decided that the original trial record was insufficient to enable it to amplify its prior determination in compliance with our opinion. We shall not disturb the court's decisions regarding post-remand discovery and evidence.

We turn next to the court's decision regarding allocation of income from the Teaneck property. We reviewed the relevant facts in our prior decision. Curley I, supra, slip op. at 7-13. Suffice it to say here that defendant was gifted a commercial property a shopping center in Teaneck by her family. We affirmed the trial court's determination that it was an exempt asset. Id. at 30-31. We also affirmed the trial court's determination that plaintiff expended substantial time and energy in the management of the property, and in some cases, in its actual physical maintenance; defendant, because of her disabilities, did not. Id. at 44-45. Thus, the income generated from the property during the marriage was subject to equitable distribution. We discerned no error in the trial court's determination of the value of the income so generated. We recognized that the trial court "analyzed all of the statutory factors set forth in N.J.S.A. 2A:34-23.1, and placed particular significance on husband's age and wife's disability." Curley I, supra, slip op. at 35.

We remanded for amplification of the court's conclusion that plaintiff was entitled to twenty percent of the income generated from defendant's otherwise exempt asset. In particular, we noted that defendant's brother assumed the management of the property after the parties' separation, and received a monthly fee of $1500, which also compensated him for his separate duties as a trustee of a trust for defendant's benefit. We noted that had the court allocated a similar amount for plaintiff's management services, it would have equated to almost twenty-five percent of the $738,592.96 in income from the property, as opposed to the twenty percent awarded.

We reiterate basic principles. Our scope of review of a family court's fact-finding is limited. Genovese v. Genovese, 392 N.J. Super. 215, 222 (App. Div. 2007). Our task is to determine whether the court's decision was supported by sufficient, credible evidence and represented a proper exercise of the court's broad discretion. Sauro v. Sauro, 425 N.J. Super. 555, 573 (App. Div. 2012), certif. denied, 213 N.J. 389 (2013).

A court must avoid a mechanistic division of assets. Rothman v. Rothman, 65 N.J. 219, 232 n.6 (1974); Devane v. Devane, 280 N.J. Super. 488, 493 (App. Div. 1995); Stout v. Stout, 155 N.J. Super. 196, 205 (App. Div. 1977). "[A] trial judge does not fulfill his heavy judgmental obligation by routinely or mechanistically dividing the marital assets equally." Gibbons v. Gibbons, 174 N.J. Super. 107, 114 (App. Div. 1980), rev'd on other grounds, 86 N.J. 515 (1981). Equal division may be appropriate in some cases, See, e.g., Overbay v. Overbay, 376 N.J. Super. 99, 114 (App. Div. 2005)(affirming trial court's finding there was no basis for anything other than equal distribution of both assets and liabilities), but not in others, see, e.g., Winer v. Winer, 241 N.J. Super.510, 522-24 (App. Div. 1990) (affirming a seventy-five percent allocation to husband, and twenty-five percent allocation to wife); Clark v. Clark, 324 N.J. Super. 587, 596-97 (Ch. Div. 1999) (stating that debts may be unequally allocated even where assets are not). The end result need only reflect that the "trial judge . . . appl[ied] all the factors set forth in N.J.S.A. 2A:34-23.1 and distribute[d] the marital assets consistent with the unique needs of the parties." Devane, supra, 280 N.J. Super. at 493.

As it did in its initial decision, the trial court relied substantially on its finding that defendant was permanently and totally disabled; she was twenty-three years younger than plaintiff; and she required more assets in order to fund her care over the long-term. The court also relied on the fact that the income was primarily generated by defendant's exempt asset.

The court explained that it did not place a specific dollar value on plaintiff's efforts as if he were a paid manager because he "performed his services as part of his duties as a husband." The court addressed the amount paid to defendant's brother after the separation, and determined it was irrelevant. The court noted that although the brother received $1500 a month, there was no evidence regarding any allocation between his job function as building manager of the Teaneck property, and his work as trustee of defendant's assets. The court noted that there was no evidence indicating that the amount paid to the brother was an objectively reasonable amount.

We conclude the court in its initial decision, as supplemented by its remand decision, has sufficiently justified its reasoning pursuant to Rule 1:7-4. We therefore affirm the decision, as it is one that the court could reasonably have reached based on the evidence presented. La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).

Plaintiff's remaining arguments, including his challenge to the trial judge's impartiality, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.