Opinion
DOCKET NO. A-2319-13T3
11-02-2015
AMIRA EL-GOGHEL, Plaintiff-Respondent, v. AMR SHEBITA, Defendant-Appellant.
Susan B. McCrea, attorney for appellant. Dalya Youssef, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-948-11. Susan B. McCrea, attorney for appellant. Dalya Youssef, attorney for respondent. PER CURIAM
Defendant Amr Shebita appeals from certain provisions of the final judgment of divorce (JOD) entered in this matter on October 29, 2013, as well as the order denying his motion for reconsideration. He challenges the court's determinations regarding his imputed income, child support, alimony, equitable distribution, counsel fees and other matters. We have considered the arguments presented, the record and the applicable law. We affirm.
I.
Defendant earned a bachelor's degree in Egypt and came to the United States in 1979 as a student. In 1987, he married plaintiff, Amira El-Goghel, in Egypt. In January 1988, the parties moved to New Jersey. Three children were born of the marriage, the oldest of whom is emancipated. The younger children were born in 1995 and 2004, respectively.
In the early 1980s, prior to the parties' marriage, defendant began purchasing Newark airport taxi medallions, which were permits for driving cabs at the airport. Defendant maintained that in 1981, he purchased medallion number 490 for $4000; in 1982, he purchased number 498 for $4500 or $5000; in 1983, he purchased number 9 for $5500; in 1985 or 1986, he bought number 574 for $5500. Defendant was only able to produce documentary evidence that he owned one medallion prior to the marriage, and plaintiff believed that defendant acquired most of the medallions after they were married. Each medallion permitted a driver to operate a taxi at Newark airport, and defendant rented them to other drivers for a weekly fee.
In August 1992, the parties were involved in an argument while vacationing in Egypt. As a result, they separated for one year. As a condition for plaintiff agreeing to return to New Jersey, defendant gave her 40,000 Egyptian pounds (EP), which at the time was equivalent to $18,000, to purchase an apartment in Egypt. This amount was partially paid by defendant's mother. Defendant also placed $5000 for safekeeping with plaintiff's cousin in the United States in the event that plaintiff wished to return to Egypt.
In 1995, plaintiff began studying for her master's degree, and used the $5000 to pay part of her tuition. Also in 1995, defendant purchased medallion number 313 for $30,000. Each summer the family spent two months vacationing in Egypt. Defendant paid for the vacations and during that two-month period he did not work.
In 1997, defendant's mother died and left him three apartments in a building in Egypt and 100,000 EP. One of the apartments was known as "the marriage apartment" and the parties stayed there when they vacationed in Egypt. With the help of his sister, Azza Shebita (Shebita), defendant refurbished the other two apartments and rented them for between 3000 - 5000 EP per month.
Over time, defendant's medallions increased in value and he used them as security for loans (the medallion loans). In 1996, he took three loans, including one for $70,000. In June 1998, he took loans of approximately $53,000 and $25,000 against medallion 313. In December 1999, he took a loan for $76,388. From January 1996 through September 2007 he took medallion loans totalling $900,107. Defendant gave various reasons why he took the loans, including that he needed the money to support his lifestyle, and that if something happened to the business or the medallions were to decline in value, he would have money.
It is not clear from the record which medallions defendant encumbered or how much he received. Many of the loans involved refinances.
On September 30, 1998, Shebita, defendant's sister, wired approximately $67,000 to defendant because she wanted to invest in a medallion. Defendant did not purchase a new medallion for her, but instead gave her an interest in one of his medallions.
It is again unclear from the record which medallion was involved in this transaction.
In 1999 or 2000, defendant used the funds he inherited from his mother to purchase a ten percent share in a private American school in Alexandria, Egypt (the school). Also in December 1999, without telling plaintiff, defendant married another woman in Egypt. The woman became pregnant shortly after their marriage, and their child was born in September 2000. This marriage ended in divorce that same year. At the time of the trial, the child was twelve years old and defendant paid child support and private school tuition for her.
In 1999, plaintiff earned her master's degree and began to work full-time during the day as a math teacher for the Jersey City public schools. Throughout the marriage, defendant drove a taxi during the night shift at Newark airport. In 2001, he began leasing an Elizabeth taxi medallion. He also earned income from renting his Newark medallions to other drivers.
In June 2001, the parties purchased the marital home in Colonia for $335,000. Defendant provided the deposit of $85,000, which came from refinancing a medallion. At trial, the marital home was listed for sale for $479,000 and was encumbered by two mortgages of $160,000 and $83,000.
In April 2003, defendant took a loan of $180,000 against medallion 313, but he did not explain how he used the loan proceeds. In 2005 or 2006, with defendant's consent, plaintiff sold her Egyptian apartment for 90,000 EP, and on October 11, 2006, purchased another apartment in Le Jardin, Egypt (Le Jardin) for 400,000 EP or $66,000. Beginning January 1, 2007, she was obligated to make sixteen payments, once every three months, for the balance of the mortgage on Le Jardin. Defendant consented to plaintiff sending money via friends and relatives to her sister in Egypt who made the payments on plaintiff's behalf.
The payments for Le Jardin totaled between $47,500 and $57,000. At the time of trial, the apartment was still under construction and plaintiff owed one payment. Defendant introduced an Arabic document which purportedly indicated that an apartment similar to Le Jardin had a value of either $219,000 or $142,000, but the document contained no official English translation. Plaintiff did not believe the apartment had any value because it was uninhabitable and was not connected to water or electricity. At trial, plaintiff's sister and another witness testified that the construction of Le Jardin was not complete and the apartment was not habitable.
In 2007, on the advice of Shebita's son-in-law, Ahmed Mansour, defendant purchased three acres of vacant commercial property (the commercial property) in Egypt for approximately 15,000 EP per acre. Mansour managed the commercial property.
In July 2008, Shebita informed defendant that she wished to sell her interest in his medallion. At the time, each of the medallions were valued at $350,000. Defendant did not want to sell any medallions, so instead, he refinanced them. On October 2, 2008, he received $58,873 from the refinance of medallion 498, $9985 from medallion 9, and $58,797 from medallion 313. In October 2008, he sent Shebita $220,000.
Defendant believed that he owed his sister an additional $160,000, which included $130,000 for the balance of the medallion's value plus $30,000 for the work Shebita had done on the renovation of defendant's Egyptian apartments. Defendant could not document any financial transactions with his sister because he claimed that the papers he needed had gone "missing."
On November 1, 2008, defendant purportedly transferred to Shebita his interest in the Egyptian school and the commercial property. She paid him 50,000 EP for his interest in the school and 900,000 EP for the commercial property. Defendant profited $10,000 from the sale of the commercial property.
The price for the commercial property alternatively appears as 800,000 EP in the record.
The parties disputed who had been responsible for paying household expenses during the marriage. Defendant initially claimed that because plaintiff was the primary wage earner she paid most of the household expenses, including the mortgage. However, defendant later conceded that he paid all household expenses including the mortgage, and plaintiff paid for clothes and entertainment for herself and the children.
The parties shared tuition of $1400 per month for the two younger children to attend a private Islamic school in Jersey City. Originally defendant paid the entire tuition, but eventually they split this cost. Defendant paid for the oldest child's car and his first two years' college tuition. Thereafter, plaintiff paid one semester of his $7000 tuition, and the parties took a $30,000 loan to pay the remainder.
In September 2008, plaintiff began to contribute $1000 per month for nine months to a financial "pool" with her co-workers. Each expected to receive $9000 in return. Plaintiff did not disclose when she received the money or how she spent it.
In 2009 and 2010, defendant received $3000 and $5000 from a bank account in Egypt that he shared with his sister. The record is unclear as to what these amounts were for or how much money was in the shared account.
By March 2010, defendant was behind in his payments on the medallion loans. That month, he sold medallion 13 for $320,000 and medallion 498 for $315,000. Because of his significant debt, he realized no profit on the sales, and when the transactions were complete, he owed $6762 in fees. In addition to taking the medallion loans, defendant also took loans from friends. In April 2010, he took either a $20,000 or $26,000 loan, which he repaid in July 2010. In October 2010, he took a $25,000 loan that he apparently repaid one year later.
Loan documents indicated he had realized a profit of approximately $34,000, but he claimed he paid this amount for late fees and penalties.
In March 2010, defendant used a Chase bank account (the Chase account) for large deposits and withdrawals, but he could not state with certainty the source of these funds. He claimed that they were proceeds from refinancing a medallion but lacked any documentation to support this. He also could not recall why he wrote himself a check for $29,000.
In July 2010, defendant stopped paying the mortgage on the marital home, and it fell into arrears. He also told plaintiff that he could not afford to pay for the family's yearly summer vacation in Egypt. That year, plaintiff paid approximately $10,000 for the family vacation. In March 2011, defendant stopped paying the younger children's tuition at the Islamic school, claiming he could no longer afford it.
Plaintiff filed for divorce in October 2010. In June 2011, the parties each filed a case information statement (CIS). The Family Part entered a pendente lite order on August 19, 2011. The parties were required to share Schedule A expenses, the cost of car insurance, and custody. Each party was responsible for his or her own Schedule B and C expenses. Defendant was not required to contribute to the younger children's private school tuition, but the court ruled that this expense might be allocated at a later date.
In 2010 and 2011, defendant claimed all three children as dependents on his income tax return, while only reporting an income of $22,489. In September 2011, defendant sold medallion number 9 for $350,000 but realized a profit of only $34,783 because of the various loans. He did not inform plaintiff about the sale, nor did he disclose it on his 2011 tax return. On December 8, defendant refinanced medallion 574 and received $31,871. At trial, 574 was his only remaining medallion. Its value was approximately $360,000 or $370,000, but it was encumbered by a $241,000 loan. On September 20, 2012, defendant refinanced 574 again and received $36,911.
It was later established that defendant's June 2011 CIS did not include: child support he paid for his child in Egypt; his real estate interests in Egypt; outstanding personal loans; his business income from renting medallions; the Chase account; or the Egyptian bank account he shared with his sister. He also failed to provide his taxi log book or his records for paying gas, tolls, and taxi repairs.
Plaintiff eventually obtained defendant's business records, including the taxi log book that disclosed defendant's daily earnings from 2008 to 2011. The records included a document establishing that defendant still owned the commercial property in Egypt despite his claim that he had sold it to his sister in 2008. Defendant certified that he "forgot" about the taxi log book.
During trial, the judge chastised defendant for being "evasive," for "not answering the questions," and for "changing the topic." When defendant later gave his reasons for not providing his taxi log book, the court responded "[y]ou're not telling the truth." At one point, the court threatened to jail defendant, saying "[y]ou have not been responsive. You want to filibuster. You want to say whatever you want to say. You don't want to answer the questions. I have given you a lot of leeway. It ends as of now."
As a consequence, defendant's true earnings were difficult to ascertain. This difficulty was compounded by the fact that he preferred to keep his money in a safe deposit box or hidden in the house instead of in a bank account. Defendant testified that his take home pay before paying for gas and repairs could be as high as $700 per week. Other than his tax returns, he provided no documentation to establish his income. From 1986 to 2009, he reported to the IRS only approximately $20,000 yearly income from driving a taxi. He submitted the 2010 Occupational Employment Statistics as evidence that the mean income for a Newark taxi driver was $29,860.
In addition to his earned income, defendant also received three personal injury awards: $6,382 in 1988; $9,800 in 1989; and $14,066 in 2004. --------
As noted, plaintiff submitted defendant's taxi log book that documented each fare he earned for the years 2008 through 2012. The log book showed higher earnings for defendant than those he reported to the IRS. According to the log book, defendant earned approximately $83,200 in 2010, even though he only reported income of $18,500 to the IRS. The $83,200, however, did not reflect the cost of gas and taxi repairs.
With respect to the rental income from the medallions, defendant claimed that he earned $500 per week per medallion, but there were slow months when he only received $400 per week. In 2008, his corporation earned approximately $78,000 in rental income from the medallions but reported rental income of only $21,264 to the IRS. According to defendant, his company paid car insurance for the vehicles, and the drivers who rented the medallions were responsible for repairs and gas. In 2009, when he owned four medallions, he reported corporate rental income of $83,200. In 2010, medallion 498 was rented for $500 per week, but he reported to the IRS a rental income of less than $15,000. His 2012 corporate tax return showed rental income of $26,000.
Defendant made large deposits into his bank accounts throughout the marriage, but, as noted, the source of these funds was unclear and neither party provided expert testimony to explain these transactions. Between 2008 and 2011, defendant made deposits totaling more than $800,000 into his business and personal accounts.
At trial, Shebita testified at length about defendant's financial dealings in Egypt. She discussed her 1998 investment in defendant's medallion; the 2008 transactions whereby defendant paid her $220,000 as a return on her investment; and her purchase of his interests in the school and the commercial property. She also testified that she managed defendant's money in Egypt, and paid 500 EP monthly child support on his behalf for his child there plus 10,000 EP per year for the child's tuition, which came from defendant's apartment rentals. The apartment rentals had also partially funded the parties' Egyptian vacations.
Shebita had difficulty recalling the details of her purchase of the school and the commercial property from defendant. With respect to her testimony, the court stated, "she's either unwilling or unable to properly explain." Also, the court noted that it had "doubt" about Shebita's credibility because she asked for a translator but clearly understood "a lot more English than she lets on" given that she answered questions before hearing the translation.
Plaintiff believed that defendant was supporting Shebita in Egypt and that Shebita had no independent income other than the small rental income she received from the apartments she inherited from her mother. According to plaintiff, Shebita was not in a financial position to buy the medallion or the land.
Both parties called taxi drivers as witnesses to testify to their earnings and the cost of renting medallions. Plaintiff presented Emad Abdelhmid, a Newark airport cab driver, who paid $600 per week to rent an Elizabeth medallion for the morning shift only. According to Abdelhmid, rent for the evening shift was 25% higher. Medallion rent was generally paid in cash. The net pay of a cab driver after paying rent, gas, and tolls was approximately $600 per week.
Defendant presented another Newark cab driver, Habib Deif, who worked from morning until airport closing and earned only $500 per week. He paid $500 per week to rent a medallion.
Mohamed Kamel, defendant's childhood friend and a taxicab owner and driver, testified that defendant owned medallion 490 as of 1981, and by 1986, owned a total of four medallions. A driver was able to earn $700 per week and could rent a medallion for $500 per week. Car insurance cost $4000 per year. Kamel worked the night shift using an Elizabeth medallion and rented his medallion to another driver during the day.
Lee Williams, a retired police officer and director of cabs for Newark airport, testified that medallions today sell for more than $300,000. Williams agreed that defendant had owned medallion 490 as early as 1981. Between 1981 and 1986, Williams believed that defendant had owned other medallions, but was not sure how many or which numbers.
Robin Silver Newman (Silver) is a medallion broker whose family owned Newark Funding Corp., which arranged the buying and selling of medallions. She first met defendant around 1992, at which time he owned medallions 9, 313, 498, and 574. Silver had assisted defendant in refinancing his medallions, from which he received proceeds as follows: $76,388 in December 1999; $12,700 in 2008; and $138,000 in October 2008.
According to Silver, defendant closed on the sale of medallions 313 and 498 on April 8, 2010, for $320,000 and $315,000. However, because of all the refinancing, he did not receive any proceeds from these sales. On October 6, 2011, defendant sold medallion 9 for $350,000, from which he netted only $34,783. A typical rental for a medallion was $500 per week, and Silver estimated that a person driving his or her own medallion would earn $700 to $1000 per week. At the time of trial, the price of a medallion was $370,000.
As to plaintiff, by 2010 she was earning $76,635 as a math teacher. At the time of trial in 2012, her salary was nearly $90,000, and she provided health insurance for the family. She had contributed $26,989 to her pension, but the parties provided no evidence as to the present value of her retirement funds. She also had group life insurance through her employer in the amount of approximately $262,000. In addition, plaintiff sent unexplained amounts of money to Egypt. In 2010, the payments due for Le Jardin were $12,000, but she sent $15,200. Between 2008 and 2011, she gave $8,924 to her nephew and $4,450 to her brother. Defendant believed that plaintiff was utilizing her nephew to send money to her sister to invest in real estate on her behalf.
Trial of the matter spanned nine non-consecutive days between February and July 2012. On November 26, 2012, plaintiff filed a motion to supplement the record upon finding defendant's financial records that he had failed to provide in discovery. The court granted the motion on February 13, 2013, and on April 11, it conducted a hearing to address the new evidence. On October 29, 2013, the court entered the JOD, which incorporated its written opinion. On November 19, defendant moved for reconsideration, which the court denied on January 2, 2014. This appeal followed.
II.
Defendant raises the following issues on appeal:
POINT I
The Court abused its discretion by inappropriately providing a retroactive award of child support while the parties were sharing the marital home, financial responsibilities and child care
POINT II
The Court improperly imputed income to the Defendant
POINT III
The Court improperly denied alimony to the Defendant
POINT IV
The Court improperly apportioned college costs, private school, unreimbursed medical expenses and extracurricular activities of the children
POINT V
The Court failed to make proper findings and division of assets in Egypt
POINT VI
The Court failed to require Plaintiff to provide life insurance for the benefit of the children and Defendant
POINT VII
The Court failed to make proper findings as to the Premarital nature of the Defendant's taxi medallions
POINT VIII
The Court improperly distributed proceeds from the sale of Defendant's taxi medallion #009
POINT IX
The Court improperly failed to award counsel fees
POINT X
The Court failed to identify all of the marital assets subject to equitable distribution and made a grossly improper and unfair distribution to the parties
POINT XI
The Court failed to reconsider the Judgment of Divorce by failing to consider competent and credible evidence and testimony adduced at trial and failed to use proper income information for the calculation of child support
We begin by setting forth the principles that guide our analysis of a Family Part bench trial. It is important to note that at the outset of his written opinion, the judge observed that: "[d]istilled to its essence, the focus of the trial was determining the financial status of [defendant]; not a simple task."
Having reviewed the record, we find no basis to conclude that the trial judge erred in his credibility determinations. Our standard of review requires us to give considerable deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (additional citation omitted)). When the judge has made findings of fact after considering the testimony and documents the parties have presented during a non-jury trial, those findings are generally "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1979)).
That is so "[b]ecause of the family courts' special jurisdiction and expertise in family matters . . . ." Id. at 413. Just as important, the trial judge is in the best position to make judgments as to whether witnesses are believable. Clark v. Clark, 429 N.J. Super. 61, 71 (App. Div. 2012). Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007). For those reasons, we will not reverse a trial judge's findings of fact unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Clark, supra, 429 N.J. Super. at 70 (quoting Rova Farms Resort, Inc., supra, 65 N.J. at 484 (internal quotation marks and additional citation omitted)).
Unlike a trial judge's fact and credibility findings, the judge's "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, (1995) (internal quotation marks omitted)). A trial judge "is in no better position than we are when interpreting a statute or divining the meaning of the law." D.W. V. R.W., 212 N.J. 232, 245 (2012). We review the legal issues anew. Id. at 245-46.
The judge in this case heard the live testimony of the parties and evaluated their relative credibility. Although he did not accept plaintiff's testimony wholesale, he found it more credible than defendant's testimony on key issues. The judge noted:
By way of example, following the trial of this case, [plaintiff] discovered financial documents that were in [defendant's] control and possession and were discoverable . . . and were not produced by [defendant]. It is against this backdrop the [c]ourt will address the issue of equitable distribution and its impact on the issue of spousal support.
After hearing the various witnesses and examining the evidence, the court further found that
during the time [defendant] was drawing money from his medallions, he was redirecting a portion of the proceeds to Egypt, denying [plaintiff] access to the same and her fair share at the time. This is especially true with respect to the funds allegedly transferred to repay his sister for her alleged interest in one of the medallions. The [c]ourt does not find [defendant's] testimony or the testimony of [defendant's] sister to be credible on this point.The judge's conclusions were adequately explained and find ample support in the record. Accordingly, we do not disturb them, and go on to address defendant's various claims of error.
A.
Utilizing the Child Support Guidelines, the court ordered defendant to pay $199 weekly child support for the two minor children. This support award was retroactive to August 19, 2011, the date of the pendente lite order. Defendant argues that the court erred in making its award of child support retroactive. Rather, he contends that child support should not have begun until he moved out of the marital home because when the parties lived together they shared the children's expenses.
Child support awards and modifications are left to the sound discretion of the trial court, and appellate review is limited to determining whether there was an abuse of discretion. Innes v. Innes, 117 N.J. 496, 504 (1990); Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006). Pendente lite support is typically decided on the basis of affidavits without conducting a plenary hearing. Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995). The purpose of pendente lite support is to maintain the situation that the parties were in prior to the inception of the litigation. Ibid. Pendente lite support orders are subject to modification prior to and at the time of entry of final judgment. Ibid.
Here, we agree with defendant that the judge did not make specific findings as to why he ordered a retroactive adjustment of the pendente lite support award. Indeed, "[t]rial judges are under a duty to make findings of fact and to state reasons in support of their conclusions." Heinl v. Heinl, 287 N.J. Super. 337, 347; R. 1:7-4(a). "Meaningful appellate review is inhibited unless the judge sets forth the reasons for his or her [own] opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990) (internal quotation marks omitted)).
Nonetheless, on this record, we conclude that the retroactive award does not constitute an abuse of discretion. The August 19, 2011 pendente lite order directed the parties to share home responsibilities, child care, Schedule A (shelter) expenses, and the cost of car insurance. Each party was responsible for his or her own Schedule B (transportation) and C (personal) expenses. Defendant was not required to contribute pendente lite to the younger children's private school tuition, but that issue was expressly left open for future reallocation.
Importantly, at the time the court entered the pendente lite order, the parties' financial picture was both incomplete and inaccurate. As noted, defendant failed to provide key information on his CIS that formed the basis for the court's initial support award. Defendant continued to withhold relevant financial documentation throughout the course of discovery and trial. Even at the conclusion of the case the judge found that "due to defendant's obsession with secrecy . . . the [c]ourt is significantly hampered in drawing an accurate picture of the parties' true financial status."
Plaintiff testified that she paid for food, clothing, entertainment expenses, sports activities, school tuition and school supplies for the younger children. Once the trial court had a more accurate picture of defendant's financial status, it had a valid basis to re-examine and properly compensate plaintiff for these expenses via a retroactive child support award. We discern no error in the court doing so.
B.
With respect to alimony, the judge analyzed the factors set forth in N.J.S.A. 2A:34-23. He determined that plaintiff earned $91,000 annually. He also reviewed the testimony of the various witnesses that testified regarding a medallion's rental value and a taxi driver's earning potential. In attempting to accurately estimate defendant's income, the court, citing Larbig, supra, 384 N.J. Super. at 23, noted that because defendant is "self-employed, he is in a better position to present an unrealistic picture of his actual income than a W-2 earner." The judge concluded:
[b]ased on [defendant's] testimony in this case, this concern is not theoretical. The [c]ourt will impute an annual salary of $96,000 . . .; this is based on leasing medallion number 574 for $52,000 a year, and an imputed average salary as a taxi driver of $44,000 a year.
The second part of the analysis is the parties' ability to pay. Since their salaries are essentially the same, neither party has a need for spousal support to maintain their respective lifestyles. Consequently, the [c]ourt will not require that spousal support be paid by either party to the other. This decision is based also on the [c]ourt's determination with respect to equitable distribution.
Defendant challenges the court's failure to award him alimony. He argues that the court improperly imputed income to him. He also contends that plaintiff's present earnings vastly exceed his and that he cannot duplicate the marital standard of living on his income alone. We do not find these arguments persuasive.
For purposes of calculating alimony and child support awards, a trial court may impute income to one or both spouses. Mowery v. Mowery, 38 N.J. Super. 92, 104-05 (App. Div. 1955), certif. denied, 20 N.J. 307 (1956); see Tannen v. Tannen, 416 N.J. Super. 248, 261 (App. Div. 2010) (noting that a trial judge "may impute income" in the process of "determining an appropriate alimony award"), aff'd o.b., 208 N.J. 409 (2011); Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002) ("Both the [child support] guidelines and the case law of this State explicitly permit the imputation of income where earnings cannot be determined [for child support purposes].").
In determining the amount of income to impute to a party, the court considers the party's potential employment and earning capacity, based on that individual's "work history, occupational qualifications, educational background, and prevailing job opportunities in the region." Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2635 (2015). Unearned income, i.e., income that can be generated from assets, may also be used to determine the appropriate support obligation. Stiffler v. Stiffler, 304 N.J. Super. 96, 101 (Ch. Div. 1997).
"Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). Accordingly, "[a] trial judge's decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence." See Overbay v. Overbay, 376 N.J. Super. 99, 106-07 (App. Div. 2005) (quoting Storey, supra, 373 N.J. Super. at 474-75 (internal quotation marks omitted)).
We are satisfied that the trial judge properly considered these factors in arriving at the amount of earned and unearned income to impute to defendant. The court's determination finds additional support in defendant's earnings history and earnings capacity, as well as the court's evaluation of defendant's credibility.
We similarly review a Family Part judge's decision on alimony for abuse of his or her discretionary authority. Innes v. Innes, 117 N.J. 496, 504 (1990).
To vacate a trial court's finding concerning alimony, we must conclude that the trial court clearly . . . failed to consider all of the controlling legal principles, or we
must otherwise be satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering all of the proofs as a whole.
[Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340, 354 (App. Div. 2009).]
"[T]he goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). "Alimony relates to support and standard of living; it involves the quality of economic life to which one spouse is entitled, which then becomes the obligation of the other." Gnall v. Gnall, 222 N.J. 414, 429 (2015) (citations omitted). Trial judges may award such alimony "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just . . . ." N.J.S.A. 2A:34-23.
Measured against these standards and the judge's credibility and factual findings, we conclude that the trial judge did not abuse his discretion in denying defendant alimony. The judge balanced all of the statutory factors enumerated in N.J.S.A. 2A:34-23(b) and arrived at a determination that finds ample factual support in the record and accords with the applicable law. The judge correctly found that replication of the parties' marital lifestyle was "not possible in light of the current financial realities." He also correctly determined that "based on the income earned by [plaintiff], there is no need for spousal support from [defendant]. The same is true for [defendant], based on the income imputed to him." There is no factual or legal basis for us to conclude that "the [judge's] determination could not reasonably have been reached on sufficient credible evidence present in the record after considering all of the proofs as a whole." Gonzalez-Posse, supra, 410 N.J. Super. at 354.
C.
We next turn to defendant's arguments pertaining to the judge's determinations with regard to equitable distribution. The goal of equitable distribution is to bring about a "fair and just division of marital assets." Steneken v. Steneken, 183 N.J. 290, 299 (2005) (internal quotation marks and citation omitted). When distributing marital assets, a court must: (1) identify the property subject to equitable distribution; (2) determine the value of each asset; and (3) decide how to allocate each asset most equitably. Rothman v. Rothman, 65 N.J. 219, 232 (1974). "In every case, . . . the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution . . . ." N.J.S.A. 2A:34-23.1. A court should apply all the factors set forth in N.J.S.A. 2A:34-23.1 and distribute marital assets consistent with the parties' unique needs. DeVane v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995).
"Equitable" does not necessarily mean "equal." Rothman, supra, 65 N.J. at 232 n. 6. An appellate court will affirm an equitable distribution provided "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).
Defendant first argues that the court failed to make proper findings about the assets in Egypt, including Le Jardin, defendant's apartments, the commercial property, and the school. The court found that there was no reliable testimony that provided a valuation of the Egyptian assets or clarity regarding the true ownership of the school and the commercial property. Moreover, the court did not credit the testimony or the records defendant submitted at trial that he no longer had an interest in the school or the commercial property. He provided no documentation that he sold the school or the commercial property to his sister. He thus failed to satisfy his burden of proving that he no longer owned those assets. The court was "significantly hampered in drawing an accurate picture of the parties' true financial status" because of defendant's "obsession with secrecy," which undermined any claim he may have had regarding valuation and distribution of these assets.
The only evidence that defendant provided regarding the value of Le Jardin was an Arabic language document with an unsubstantiated English translation that indicated that an apartment similar to Le Jardin had a value of either $219,000 or $142,000. Defendant provided no expert appraisal or even a certified translation of the Arabic document. We agree that defendant's proofs were also insufficient for the court to accurately make findings on the value of Le Jardin.
Defendant next argues that the court ignored large sums that plaintiff diverted to Egypt including $7,300 in 2008, $8,000 in 2009, and $7,500 in 2011, as well as amounts she sent to her nephew and brother. However, it was impossible to ascertain from this record how much each party diverted for his or her individual use. Both parties had diverted funds to Egypt. Nevertheless, it is readily apparent that whatever amount plaintiff had diverted to Egypt or her family members was minor compared to the amounts defendant had diverted. For example, defendant refinanced his medallions and received proceeds of nearly $1 million, yet he provided no clarity as to how or when those funds were used. Moreover, the majority of funds plaintiff sent to Egypt went to pay for Le Jardin, which defendant knew of and consented to. We conclude that it was reasonable for the court to ignore plaintiff's diversion of relatively small amounts of money, especially given defendant's lack of candor with respect to significant marital assets that he had diverted to Egypt.
Defendant also argues that the court erred by distributing pre-marital assets, namely the medallions, that were not subject to equitable distribution. In denying defendant's motion for reconsideration, the court found that the medallions "were used throughout the marriage for the benefit of the marriage and thus constituted marital assets subject to equitable distribution." Additionally, "the medallions were regularly refinanced to provide cash that was used to support the marital lifestyle, including annual expensive trips to Egypt." The court noted that part of its decision in this regard was "based on the untrustworthy nature of [] defendant's testimony."
Property acquired during the marriage is subject to equitable distribution. N.J.S.A. 2A:34-23. However, pre-marital property which was owned at the time of the marriage remains separate and is not eligible for equitable distribution. Painter v. Painter, 65 N.J. 196, 214 (1974). The spouse who asserts that an asset is immune bears the burden of establishing such immunity. Ibid. An asset purchased prior to the date of the marriage may be subject to equitable distribution if it was intended to be a marital asset. Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div.), certif. denied, 114 N.J. 287 (1988).
Defendant contends that the evidence clearly established that all the medallions with the exception of 313 were acquired prior to the marriage. Defendant presented three witnesses who he believed established this fact. Kamel, defendant's childhood friend, remembered defendant purchasing the medallions when he first came to New Jersey in the early 1980s and he testified that defendant owned four medallions by 1986. According to Williams, the retired police officer and cab director, defendant had owned 490 by 1981, but subsequent to that, Williams did not know when or how many medallions defendant acquired. Silver, the medallion broker, testified only that defendant owned his medallions prior to 1992. Defendant also possessed a document that showed he owned medallion 490 as of 1986, but no documents in the record established defendant's ownership of any other medallion prior to the parties' 1987 marriage.
It was defendant's burden to prove the medallions were premarital and not subject to equitable distribution. Painter, supra, 65 N.J. at 214. His childhood friend Kamel was the only witness who asserted that he owned the medallions prior to the marriage, and the court was not required to accept that testimony. On the record presented, defendant did not satisfy his burden of proof that the medallions were premarital. Moreover, the court properly found that all the medallions were refinanced to provide funds for the marital lifestyle. It was thus within the court's discretion to find that the medallions were subject to equitable distribution. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978).
In the end, citing Rothman, supra, 65 N.J. at 232 n. 6, the trial court declined to "apply[] a mechanistic division of assets." It awarded defendant the Egyptian properties in his name, as well as medallion 574 that had a net worth of approximately $130,000. Plaintiff received the marital home, which was listed for sale for $479,000 and was encumbered by two mortgages of $160,000 and $83,000, for an apparent net value of $240,000. She also retained Le Jardin, the value of which could not be determined. The court also found that medallion number 9 "was sold after the divorce proceedings commenced and without notice to [plaintiff]. This medallion is deemed marital property and [plaintiff] is entitled to one-half of the proceeds [defendant] received." Accordingly, defendant was ordered to pay plaintiff $17,391, representing fifty percent of the sale proceeds. Plaintiff retained her retirement plan, as to which neither party had presented any evidence regarding its value.
In light of the difficulty in evaluating the Egyptian assets, the lack of any competent proof regarding the value of the marital home and plaintiff's retirement plan, and defendant's diversion to Egypt of significant funds from the medallion loans, we conclude that the court made a reasonable distribution. Accordingly, we decline to disturb it.
D.
Defendant argues that the court erred in failing to award him attorney's fees. He contends that he requested fees while plaintiff did not, and that he requires them because he earns far less than her.
A judge in a matrimonial action may award a party reasonable attorney's fees and costs. In making that determination, a judge "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. See R. 5:3-5(c). The decision to award counsel fees "in a matrimonial action rests in the discretion of the trial court[,]" Addesa v. Addesa, 392 N.J. Super. 58, 78 (App. Div. 2007), and will be disturbed "only on the 'rarest occasion,' and then only because of clear abuse of discretion." Strahan, supra, 402 N.J. Super. at 317 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)).
Here, the court found that the parties' incomes were similar with both of them earning in excess of $90,000 per year. The court declined to award fees because it determined that the parties had the ability to pay their own counsel fees, and neither was in a financial position to pay the other's fees. Notably, also, the court did not sanction defendant for his discovery violations. Under these circumstances, we find no abuse of discretion in the court's decision to deny him counsel fees.
The remainder of defendant's arguments on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION