MARIA A. ROTH v. STANLEY ROTH

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0609-17T1

MARIA A. ROTH,

                    Plaintiff-Appellant,

v.

STANLEY ROTH,

          Defendant-Respondent.
______________________________

                    Argued October 1, 2018 – Decided October 15, 2018

                    Before Judges Sabatino, Haas and Mitterhoff.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Monmouth County,
                    Docket No. FM-13-0078-16.

                    Maria A. Roth, appellant argued the cause pro se
                    (Stephanie Palo, on the briefs).

                    Ronald H. Carlin argued the cause for respondent
                    (LaRocca Hornik Rosen Greenberg & Patti, LLC,
                    attorneys; Ronald H. Carlin, on the brief).

PER CURIAM
      Plaintiff Maria Roth appeals from the Family Part's August 21, 2017 order

denying her motion for reconsideration of the trial judge's equitable distribution

determinations in the June 8, 2017 Final Judgment of Divorce (FJOD)

concerning an eyeglass store the couple operated during their marriage. We

affirm.

      The parties married in 1980. Both of their children are emancipated.

During their marriage, the parties operated Monte Eyewear, LLC, a franchisee

of the national Cohen's Fashion Optical chain (Cohen's). The business was

located in the Bronx. Defendant was the sole shareholder in the company, and

managed the store's daily operations. Plaintiff acted as a bookkeeper, and

handled the business's finances as well as the parties' personal bills.

      Toward the end of the marriage, plaintiff began removing funds from the

company's accounts in the early morning hours, ostensibly to pay the family's

bills. When defendant learned of these transactions in April 2015, he stopped

depositing the company's cash receipts in the business account, and assumed

responsibility for paying the parties' bills. Between April 2015 and March 2016,

when defendant dissolved the company, plaintiff alleged that defendant

dissipated $126,733 of the business's receipts for his own purposes.




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        Plaintiff filed her complaint for divorce in July 2015. Although defendant

filed an answer, he thereafter failed to comply with his discovery obligations,

and refused to provide plaintiff with Monte Eyewear's franchise close-out

sheets, invoices, and cash receipts. As a result, the trial court suppressed

defendant's defenses and the matter proceeded to a default hearing pursuant to

Rule 5:5-10.

        Judge Angela White Dalton presided at the hearing.           She permitted

defendant to cross-examine plaintiff concerning her testimony at the hearing,

and the documents upon which she relied. However, the judge did not permit

defendant to present evidence or witnesses, offer affirmative defenses, or be

directly examined by his own attorney.

        At the time of the hearing, the parties were still residing in the marital

home.        During   cross-examination       by   defendant's   attorney,   plaintiff

acknowledged that prior to April 2015, when she was using Monte Eyewear's

business account to pay the family's bills, "there wasn't a whole lot left over" at

the end of each month.




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       According to plaintiff, the business earned $188,432.59 1 for the twelve-

month period between April 1, 2015 and March 11, 2016. From this amount,

plaintiff alleged that defendant siphoned off $126,733 for his own purposes. As

part of her Notice of Proposed Final Judgment (NPFJ), plaintiff asked that

defendant be ordered to pay her half of this amount ($63,386) in equitable

distribution.

       Plaintiff was not questioned about the family's monthly bills on direct

examination. However, she provided this information in response to defendant's

attorney's questions on cross-examination. Although plaintiff stated she was

uncertain as to amounts she normally paid for all the couple's bills, plaintiff was

able to provide details concerning most of them.

       Plaintiff testified that when she was in charge of using the company's

funds for the family's bills, she took approximately $7000 in cash each month

to cover the family's regular expenses, including the mortgage, food, and other

routine obligations. Plaintiff also stated that each month she paid: $1400 for

health insurance; $350 for car payments; $700 for car insurance; $2000 for rent

for the business; and $350 for gas so defendant could drive back and forth to the



1
    This averages to $15,702.71 per month.


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Bronx. These expenses alone totaled $11,800 per month, which was $141,600

per year. She also conceded that after defendant took over this responsibility,

these bills continued to be paid, although she claimed she did not know how this

occurred.

       Through her testimony, plaintiff accounted for all but $46,832.59 2 of the

store's total gross proceeds of $188,432.59 between April 2015 and March 2016.

When defense counsel questioned plaintiff about the amounts paid each month

to vendors for the eyeglasses and other merchandise sold by Monte Eyewear,

and for business equipment, business insurance, and the note on the store,

plaintiff stated she was not familiar with these expenses. However, she did

acknowledge that the company was required to pay a 10% franchise fee on its

proceeds each month to Cohen's, but she was unaware whether defendant had

continued to do so.

       On the basis of plaintiff's testimony and the documentation she supplied

on this issue as part of her NPFJ as required by Rule 5:5-10,3 Judge White Dalton



2
    $188,432.59 - $141,600 = $46,832.59.
3
  Plaintiff was the only witness at the default hearing. She did not present any
expert testimony.



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rendered a detailed oral decision denying plaintiff's claim that defendant

dissipated funds from Monte Eyewear. 4 The judge found that plaintiff failed to

demonstrate that defendant took the funds for his own use rather than for the

payment of the family's personal and business expenses.

      In so ruling, the judge stated she had consulted an industry manual of the

type used by "CPAs [and] forensic accountants" who determine the value of

businesses. According to this manual, "the cost of goods sold in an optical goods

store making a gross of less than $250,000 a year in revenue, the percentage of

the cost of goods sold is [61%] of the revenue that comes in. . . ." Plaintiff

alleged that Monte Eyewear had $188,432.59 of gross revenues between April

2015 and March 2016. Using the 61% figure identified by the judge, this meant

that the business would have paid $114,943.88 of that amount for the eyeglasses

and merchandise it sold, leaving only $73,488.71 to cover the other $141,600 in

monthly expenses identified by plaintiff at the hearing.

      Under these circumstances, the judge found that even if defendant had

taken money from the business, "the money had to have been going back to pay

for household expenses. And as a result, . . . plaintiff benefitted from that . . .


4
   The judge granted most of plaintiff's other requests in her NPFJ, including
alimony, other equitable distribution of marital assets, and counsel fees.


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because the bills were paid. The mortgage was paid. Things were paid."

Therefore, the judge concluded that the now-closed business clearly had no

value, and plaintiff was not entitled to recover any additional fund s from

defendant concerning this former marital asset. The judge then entered a FJOD

detailing her determinations on all of the issues resolved by her at the default

hearing.

      Plaintiff thereafter filed a motion for reconsideration of the portions of the

FJOD denying her claim for half of the funds defendant allegedly took from the

business for his own uses. Plaintiff alleged she was unprepared to answer

defense counsel's questions about the bills she paid when she was in charge of

paying the family and business's bills and, therefore, she could not be sure that

the answers she gave at the hearing were accurate. She also produced records

of her personal bank account and the parties' joint account, which were not

submitted into evidence at the hearing, but were the subject of questioning.

      Judge White Dalton denied plaintiff's motion. In a thoughtful written

decision, the judge found that plaintiff failed to show "that this court's decision

was based on [a] palpably incorrect basis, or did not consider or failed to failed

to appreciate the significance of probative, competent evidence." This appeal

followed.


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      On appeal, plaintiff reiterates the same arguments she unsuccessfully

pressed before Judge White Dalton on her motion for reconsideration. She

argues that the judge abused her discretion by rejecting her claim that even

though the household and business bills continued to be paid, defendant really

took the funds and used them for his own purposes. Plaintiff also argues that

the judge erred in permitting defendant's attorney to cross-examine her at the

default hearing. We disagree.

      Established precedents guide our task on appeal. We owe substantial

deference to the Family Part's findings of fact because of that court's speci al

expertise in family matters. Cesare v. Cesare,  154 N.J. 394, 411-12 (1998).

Thus, "[a] reviewing court should uphold the factual findings undergirding the

trial court's decision if they are supported by adequate, substantial and cr edible

evidence on the record." MacKinnon v. MacKinnon,  191 N.J. 240, 253-54

(2007) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v.

M.M.,  189 N.J. 261, 279 (2007)).

      While we owe no special deference to the judge's legal conclusions,

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995),

"we 'should not disturb the factual findings and legal conclusions of the trial

judge unless . . . convinced that they are so manifestly unsupported by or


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inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice' or when we determine the court has palpably

abused its discretion." Parish v. Parish,  412 N.J. Super. 39, 47 (App. Div. 2010)

(quoting Cesare,  154 N.J. at 412). We will only reverse the judge's decision

when it is necessary to "ensure that there is not a denial of justice because the

family court's conclusions are []clearly mistaken or wide of the mark." Id. at 48

(alteration in original) (internal quotations omitted) (quoting N.J. Div. of Youth

& Family Servs. v. E.P.,  196 N.J. 88, 104 (2008)).

      Further, we review the denial of a motion for reconsideration to determine

whether the trial court abused its discretion. Cummings v. Bahr,  295 N.J. Super.
 374, 389 (App. Div. 1996). "Reconsideration cannot be used to expand the

record and reargue a motion." Capital Fin. Co. of Delaware Valley, Inc. v.

Asterbadi,  398 N.J. Super. 299, 310 (App. Div. 2008).                A motion for

reconsideration is meant to "seek review of an order based on the evidence

before the court on the initial motion . . . not to serve as a vehicle to introduce

new evidence in order to cure an inadequacy in the motion record." Ibid.

      For these reasons, reconsideration should only be granted in "those cases

which fall into that narrow corridor in which either 1) the [c]ourt has expressed

its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious


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that the [c]ourt either did not consider, or failed to appreciate the significance

of probative, competent evidence[.]"        Cummings,  295 N.J. Super. at 384

(quoting D’Atria v. D’Atria,  242 N.J. Super. 392, 401-02 (Ch. Div. 1990).

Therefore, we have held that "the magnitude of the error cited must be a game-

changer for reconsideration to be appropriate." Palombi v. Palombi,  414 N.J.

Super. 274, 289 (App. Div. 2010).

      After reviewing the record in light of these principles, we discern no basis

for disturbing Judge White Dalton's reasoned determination denying plaintiff's

motion for reconsideration. We therefore affirm the August 21, 2017 order

substantially for the reasons that Judge White Dalton expressed in her

comprehensive written opinion. We add the following brief comments.

      Contrary to plaintiff's contentions, the judge did not ignore the facts

developed by plaintiff at the default hearing, or the legal arguments she

presented concerning them. It is well established that "[w]hen a defaulting

defendant fails to participate in a divorce proceeding, the plaintiff is not

automatically entitled to a default judgment granting all requests regarding

equitable distribution." Clementi v. Clementi,  434 N.J. Super. 529, 532 (Ch.

Div. 2013). Instead, the "plaintiff still has an ongoing obligation to persuade




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the court, by a preponderance of the evidence, that the proposal for equitable

distribution is fair and equitable under the specific facts of the case[.]" Ibid.

       The judge properly found that based on the testimony and documentary

evidence she presented at the hearing, plaintiff failed to meet this burden of

proof. As detailed above, plaintiff's own testimony established that $141,600 in

bills were paid, although she alleged she did not know how this occurred. The

judge concluded that the $46,832.59 difference between that amount, and the

$188,432.59 gross proceeds plaintiff alleged the business brought in during this

one-year period, was more than accounted for by the amounts the company had

to pay the vendors that sold it the eyeglasses and other merchandise it in turn

marketed to its customers. Plaintiff argues the 61% cost-of-goods percentage

applied by the court was too high. But even if, hypothetically, a percentage of,
                                                         5
say, only half that 61% level were applied instead,          the math would have

yielded the same conclusion and fully account for the use of the $46,832.59

balance. Moreover, no forensic expert proof was presented to the contrary.

       Thus, plaintiff simply failed to meet her burden of proof by a

preponderance of the evidence that defendant took business funds, and used

them for his own purposes rather than paying the family's bills that plaintiff


5
    .305 X $188,432 = $57,471.76.
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acknowledged were paid. Therefore, the judge did not abuse her discretion by

denying the equitable distribution plaintiff sought on this issue, Borodinsky v.

Borodinsky,  162 N.J. Super. 437, 443-44 (App. Div. 1978) (stating that we apply

an abuse of discretion standard when a party challenges an equitable distribution

award), or the motion for reconsideration that is the only subject of this appeal.

Palombi,  414 N.J. Super. at 288.

      Plaintiff argues that the judge failed to consider that defendant received a

$100,000 settlement from a former employer arising out of a dispute over unpaid

commissions, and may have used those monies to pay the personal expenses

while he was allegedly dissipating business funds. This argument fails for two

reasons. First, plaintiff's theory is nothing more than speculation, unsupportable

by any evidence in the record. Perhaps more importantly, the judge ordered

defendant to pay half of the settlement ($50,000) to plaintiff in equitable

distribution from his share of the proceeds from the sale of the former marital

home or another property owned by the parties. 6

      Plaintiff also contends that the judge improperly gave short shrift to her

allegation that she, rather than defendant, was still actually paying some of the



6
  The judge also ordered defendant to take full responsibility for paying $44,000
that the business owed Cohen's. However, Cohen's eventually forgave the deb t.
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family's expenses after defendant took over this responsibility. However, this

claim, and the documents plaintiff presented for the first time with her motion

in an attempt to support it, could have reasonably been gathered and presented

by plaintiff and her attorney at the default hearing. Moreover, none of this

information was a "game changer." Palombi,  414 N.J. Super. at 289. Therefore,

the judge properly denied plaintiff's motion for reconsideration. Cummings,  295 N.J. Super. at 384.

      Finally, we reject plaintiff's argument that the judge erred by permitting

defendant's attorney to cross-examine her at the default hearing. As noted

above, although the entry of default ordinarily precludes a defendant from

offering testimony or other evidence at the Rule 5:5-10 hearing, it does not

obviate the plaintiff's obligation to furnish proof on the issues. Scott v. Scott,

 190 N.J. Super. 189, 195-96 (Ch. Div. 1983). And, in most cases, our courts

have permitted a defaulting defendant to cross-examine the plaintiff and his or

her witnesses to assist the trial judge in determining whether the plaintiff's

proofs are "insufficient in law or fact to support the judgment which the plaintiff

seeks." Fox v. Fox,  76 N.J. Super. 600, 604 (Ch. Div. 1962).

      Under the circumstances presented in this case, we discern no abuse of

discretion by Judge White Dalton allowing defendant's limited participat ion at


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the hearing. Plaintiff did not even object to defense counsel's cross-examination

until the second day of the hearing, and did not raise this argument in her motion

for reconsideration. Contrary to plaintiff's contention, the judge did not reward

defendant for his recalcitrance in providing discovery, because she prevented

him from presenting any testimony or evidence of his own, making an opening

or closing statement, or offering any affirmative defenses.         Plaintiff was

successful on most of the requests she made in her NPFJ, and was unsuccessful

on her dissipation claim only because the proofs she provided did not establish

her right to equitable distribution by a preponderance of the evidence.

      Affirmed.




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