LUYEN D. NGUYEN v. CHI T. DUONG

NOT FOR PUBLICATION WITHOUT THE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-3459-16T1



LUYEN D. NGUYEN,

        Plaintiff-Appellant,

v.

CHI T. DUONG,

     Defendant-Respondent.
__________________________

              Submitted April 17, 2018 - Decided May 3, 2018

              Before Judges Hoffman and Mayer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Hudson County,
              Docket No. FM-09-0407-16.

              Luyen D. Nguyen, appellant pro se.

              Steven H. Nguyen, attorney for respondent.

PER CURIAM

        Plaintiff Luyen D. Nguyen appeals from a February 14, 2017

order of the Family Court granting the counterclaim for divorce

filed by defendant Chi T. Duong and equitably distributing the

marital property.         We affirm.
                                   I.

      The parties were married in February 2008, when plaintiff was

fifty-nine years old and defendant was twenty-nine years old.                  The

parties separated in September 2013. Plaintiff filed his complaint

for divorce on the grounds of extreme cruelty and desertion,


N.J.S.A. 2A:34-2(b) and (c).       Defendant filed a counterclaim for

divorce based on irreconcilable differences, 
N.J.S.A. 2A:34-2(i).

      According to plaintiff, defendant used him to obtain United

States citizenship and conspired with her sister to defraud him

of   $230,000   through   the   creation       of   fake    promissory     notes.

Plaintiff declined to consent to a divorce based on irreconcilable

differences     despite   the   judge       explaining     that   the   equitable

distribution determination would be the same regardless of the

reasons for the divorce.        Thus, a trial was held on the grounds

for divorce as well as the equitable distribution issues.                      The

assets subject to equitable distribution included plaintiff's

retirement fund, a parcel of land in Virginia, the parties' tax

refunds for the years 2008 through 2012, and a $230,000 loan to

defendant's sister.

      Beginning in 2000, plaintiff contributed to a fifteen-year

401(k) plan through his employer.              When the parties married in

2008, the value of the 401(k) was approximately $182,500.                     When

plaintiff retired in 2012, the 401(k) was rolled over into a

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Vanguard IRA and the value of the account at that time was

approximately $300,000.        On the date the parties separated, the

retirement account value was approximately $114,600.

      In determining equitable distribution of the plaintiff's

retirement fund, plaintiff testified that he took approximately

$255,000 from that account.           After considering the evidence and

the   testimony,   the   judge   awarded    defendant    one-third   of    the

increase in the account's value during the marriage, factoring in

the amount withdrawn by plaintiff.

      In determining equitable distribution of property in Falls

Church, Virginia (Property), the judge heard testimony that the

parties bought the Property in May 2012, intending to build their

"dream home."      The Property was purchased using five separate

checks to satisfy the total purchase price.               Two checks were

provided by plaintiff, totaling $101,200; one check came from

defendant in the amount of $77,366.67; and two checks were issued

by defendant's sister, Thuy Bich Duong, and her husband, Chinh

Phan, in the total amount of $30,000.

      At trial, defendant testified that the $30,000 from her family

was   a   loan.    According     to    plaintiff,   in   October   2012,    he

transferred $30,000 from his individual bank account to an account

belonging to Chinh Phan, representing repayment of the loan.

However, the evidence presented to the court only showed a $30,000

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transfer to an account number with no evidence that the account

belonged to Chinh Phan, or that the transfer was repayment for the

loan to purchase the Property.

     At the time the parties separated, the Property was valued

at $250,000.    Based on the testimony and evidence at trial, the

judge awarded each party a share of the value of the Property

proportionate to their respective financial contribution toward

the purchase price, with the $30,000 from defendant's family

considered to be a part of defendant's contribution.

     In determining equitable distribution of the parties' tax

refunds, the judge found that the parties filed joint tax returns

from 2008 through 2012.     For each of those years, the parties

received refund checks, which were deposited into plaintiff's bank

account.    The total tax refund amount deposited into plaintiff's

bank account was $41,073.   The trial judge awarded one-half of the

total tax refund amount to defendant.

     The parties testified there was a loan in the amount of

$230,000 to another of defendant's sisters, Tam Tue Duong.         At

trial, defendant presented two signed, notarized promissory notes

identifying Tam Tue Duong as the borrower and defendant as the

lender.     One note was for $80,000 and the other note was for

$150,000.   Plaintiff testified that the promissory notes presented

to the court were fake.     He claimed the original notes listed

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himself as the lender, and defendant must have destroyed them and

conspired with her sister to create the "fake" notes.

      The judge heard conflicting testimony about the amounts and

sources of the funds.    The bank records introduced at trial showed

the parties exchanging sums of money to each other at the same

time the parties were sending money to defendant's sister.                The

trial   judge   calculated   the     total   amount       transferred    from

defendant's bank account to Tam Tue Duong was $145,000 and the

total amount transferred from plaintiff's bank account to Tam Tue

Duong was $85,000.      Therefore, in her equitable distribution of

this asset, the judge awarded $85,000 to plaintiff.

                                   II.

      As an initial matter, before we address the issues appealed,

we note that appellants are required to provide all "parts of the

record . . . as are essential to the proper consideration of the

issues."    R. 2:6-1(a)(1)(I).      The record on appeal consists of

"all papers on file in the [trial] court . . . , with all entries

as to matters made on the records of such court[] . . . , [and]

the   stenographic   transcript    or    statement   of    the   proceedings

therein."   R. 2:5-4(a).   "Without the necessary documents, we have

no basis for determining" the issues on appeal, and may be left

with "no alternative but to affirm."          Soc'y Hill Condo. Ass'n,

Inc. v. Soc'y Hill Assocs., 
347 N.J. Super. 163, 177-78 (App. Div.

                                    5                                A-3459-16T1
2002); see also Cipala v. Lincoln Tech. Inst., 
179 N.J. 45, 54-55

(2004) (affirming the appellate court's refusal to address an

argument raised by appellant, where appellant failed to include

an order or transcript relating to the argument).

     Nor    is   an     appellant    permitted    to   include   "documentary

material which was not before the trial court," as doing so is "a

gross violation of appellate practice."             Middle Dep't Inspection

Agency v. Home Ins. Co., 
154 N.J. Super. 49, 56 (App. Div. 1977).

We may elect to dismiss an appeal if the briefs and appendix do

not comply with the court rules.             See Cherry Hill Dodge, Inc. v.

Chrysler Credit Corp., 
194 N.J. Super. 282, 283 (App. Div. 1984)

(dismissing      appeal     for     procedural    deficiencies,     including

"documents . . . presented in the appendix which were not in

evidence below").

     Plaintiff misunderstands the purpose of an appellate appendix

as he submitted improper new "evidence" on appeal.               In addition,

plaintiff fails to designate which portions of the appendix were

presented   to    the    family     court,   rendering   it   extraordinarily

difficult for this court to determine the records submitted as

part of the evidence considered by the judge in rendering her

decision.     While we have the discretion to dismiss plaintiff's

appeal on the basis of numerous procedural deficiencies, we elect

to review plaintiff's claims on the merits.

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                                  III.

      A family court's order pertaining to equitable distribution

is   reviewed   "to   determine   whether   the   court   has   abused   its

discretion."    La Sala v. La Sala, 
335 N.J. Super. 1, 6 (App. Div.

2000).   In other words, "[w]e must determine 'whether the trial

court mistakenly exercised its broad authority to divide the

parties' property or whether the result reached was bottomed on a

misconception of law or findings of fact that are contrary to the

evidence.'"     Sauro v. Sauro, 
425 N.J. Super. 555, 573 (App. Div.

2012) (quoting Genovese v. Genovese, 
392 N.J. Super. 215, 223

(App. Div. 2007)).

      In conducting such a review, we balance "the need for a check

on unbridled discretion in the trial court against affording a

trial de novo in this court.            An equitable distribution will

be affirmed even if this court would not have made the same

division of assets as the trial judge."           Perkins v. Perkins, 
159 N.J. Super. 243, 247–48 (App. Div. 1978).          "Because of the family

courts' special jurisdiction and expertise in family matters,

appellate courts should accord deference" to the factual findings

of the family judge.     Cesare v. Cesare, 
154 N.J. 394, 413 (1998).

"Deference is especially appropriate 'when the evidence is largely

testimonial and involves questions of credibility.'"            Id. at 412

(quoting In re Return of Weapons to J.W.D., 
149 N.J. 108, 117

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(1997)).      We reverse only if the family judge's conclusions are

"clearly mistaken" or "wide of the mark," to "ensure that there

is not a denial of justice."          Parish v. Parish, 
412 N.J. Super.
 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs.

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

     On appeal, plaintiff argues the family judge erred by (1)

improperly distributing marital property, and (2) denying his

complaint for divorce based on extreme cruelty and desertion.             As

to the equitable distribution award, plaintiff claims the family

judge erred by awarding defendant: (1) a portion of his 401(k);

(2) a portion of the value of the Property; (3) a portion of the

parties' joint tax refunds; and (4) a portion of the $230,000 loan

the parties made to defendant's sister.

      Plaintiff's arguments regarding equitable distribution are

flawed based on his erroneous belief that money earned by him

during the marriage is not a marital asset.          A marital asset "is

that which was earned, or otherwise acquired, during the period

in which the parties acted in pursuit of the shared enterprise of

a marriage."     Thieme v. Aucoin-Thieme, 
227 N.J. 269, 285 (2016).

"[R]un   of    the   mill   marital   assets   [generally   include]   real

estate . . . [and] bank accounts . . . ."         Whitfield v. Whitfield,


222 N.J. Super. 36, 41 (App. Div. 1987).              Property that was

individually owned by one spouse prior to the marriage may become

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a marital asset when gifted to the other spouse or comingled with

marital assets.       See Winer v. Winer, 
241 N.J. Super. 510, 522

(App. Div. 1990) (citing Painter v. Painter, 
65 N.J. 196, 211

(1974)).

     
N.J.S.A.      2A:34-23h   authorizes      the   trial      court    to    divide

marital     assets    by   "mak[ing]    such    award     or     awards       to   the

parties, . . . to effectuate an equitable distribution of the

property."        In accordance with this statute, "[i]t shall be a

rebuttable     presumption     that    each    party      made    a     substantial

financial    or    nonfinancial   contribution       to   the    acquisition         of

income and property while the party was married."                
N.J.S.A. 2A:34-

23.1.     Thus, "all property, regardless of its source, in which a

spouse acquires an interest during the marriage shall be eligible

for distribution in the event of divorce."             Winer, 
241 N.J. Super.

at 525 (quoting Kikkert v. Kikkert, 
177 N.J. Super. 471, 474 (App.

Div.), aff'd o.b., 
88 N.J. 4 (1981)).

     Plaintiff argues his retirement account, the Property, the

parties' tax refunds, and the $230,000 loan are not subject to

equitable distribution because the money constituting these assets

originated from plaintiff.        Plaintiff's argument is contrary to

the governing statute and case law, as well as the documentary and

testimonial evidence presented at trial.               According to the trial

evidence, there was a continuous flow of money between plaintiff

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and defendant, and between the parties and members of their

families.   Based on the trial judge's review of the evidence and

testimony over the course of the seven day trial, we find no abuse

of discretion in her equitable distribution award.               Plaintiff

fails to present any basis to overturn the trial judge's factual

findings, and fails to meet his burden of proving any of the

disputed assets are immune from equitable distribution.

     We reject plaintiff's argument that the judge's equitable

distribution of the $230,000 loan to defendant's sister was flawed

because the promissory notes presented at trial were "fake."

Rather than cite to a specific error in the judge's reasoning on

this issue, plaintiff seeks a trial de novo from this court and

requests that we retrace the money flowing among the parties

regarding this transaction.    Plaintiff's position is procedurally

improper as our review is limited to the record developed at trial

before the family court judge.      See Genovese, 
392 N.J. Super. at
 222 ("[I]t is not the appellate function to . . . substitute our

judgment for that of the lower court." (quoting Gittleman v. Cent.

Jersey Bank & Trust Co., 
103 N.J. Super. 175, 179 (App. Div. 1967),

rev'd on other grounds, 
52 N.J. 503 (1968))).

     Plaintiff   also   contends   the   judge    erred   by   denying   his

complaint for divorce based on extreme cruelty and desertion and

granting    defendant's    counterclaim     for     divorce     based      on

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irreconcilable    differences.    Plaintiff    fails   to   present   any

argument in support of this claim.         Plaintiff merely states he

"would like to leave these issues on hold and . . . come back at

an appropriate time."

     To prove extreme cruelty as a grounds for divorce, the

plaintiff must show "physical or mental cruelty which endangers

the safety or health of the plaintiff or makes it improper or

unreasonable to expect the plaintiff to continue to cohabit with

the defendant."     
N.J.S.A. 2A:34-2(c).     For desertion, plaintiff

must show "[w]illful and continued desertion for the term of

[twelve] or more months, which may be established by satisfactory

proof that the parties have ceased to cohabit as man and wife."


N.J.S.A. 2A:34-2(b).    As plaintiff presents no argument on appeal,

and there is sufficient evidence in the record that the parties

had irreconcilable differences, there is no basis to overturn the

judge's decision.    See Welch v. Welch, 
35 N.J. Super. 255, 255-56

(App. Div. 1955) (declining to reverse trial court's finding that

plaintiff failed to establish extreme cruelty).

     Affirmed.




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