Opinion
DOCKET NO. A-2450-12T4
07-15-2014
MICHAEL A. ZAMORSKY, Plaintiff-Appellant, v. JOYCE P. ZAMORSKY, Defendant-Respondent.
Beverly A. Plutnick argued the cause for appellant. Pamela M. Copeland argued the cause for respondent (Pamela M. Copeland, attorney; Meredith E. Allen, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Hayden.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-261-11.
Beverly A. Plutnick argued the cause for appellant.
Pamela M. Copeland argued the cause for respondent (Pamela M. Copeland, attorney; Meredith E. Allen, of counsel and on the brief). PER CURIAM
Plaintiff Michael A. Zamorsky appeals from the December 20, 2012 Family Part entry of a final dual judgment of divorce (JOD). Specifically, he claims the court erred in the inclusion of the former marital home as a marital asset subject to equitable distribution, the distribution percentage of the home's value awarded to defendant Joyce P. Zamorsky, and the award of counsel fees to defendant. After a review of the record and contentions raised on appeal in light of the applicable legal principles, we affirm.
The record reveals that plaintiff and defendant met in September 1999 and became engaged in November 1999. Plaintiff signed a contract of sale for a house in Manville on November 13, 1999, and the closing occurred on December 20, 1999. Plaintiff paid a $68,000 deposit on the property using his own funds and was the only person named on the sales contract, deed, and mortgage.
The parties married on December 31, 1999, and resided at the Manville property for the duration of their marriage. It was the third marriage for each party, and no children were born of the marriage. The parties separated on August 9, 2010. Plaintiff filed a divorce complaint on August 23, 2010, based on irreconcilable differences.
Prior to trial, the parties reached agreement on most financial issues. At the time, plaintiff was unemployed, and defendant was receiving Social Security Disability (SSD) benefits and temporary workers' compensation benefits totaling $3709 per month. Only three issues remained for the judge to determine in connection with the dissolution of the marriage: the equitable distribution of the former marital residence, the distribution of their vehicles, and counsel fees.
At the September 25, 2012 trial, plaintiff asserted that the former marital residence was his pre-marital asset whereas defendant asserted that the property was purchased in contemplation of marriage. In particular, plaintiff testified that he purchased the property prior to the marriage, they did not live there until weeks after the wedding, defendant never even saw the home until after they were married, he planned to leave the residence to his children, and he never intended to put the home in defendant's name. He further testified that the couple kept their finances separate throughout the marriage, and he alone paid for the mortgage, property taxes, and repairs on the home, as well as the majority of the household bills. Plaintiff maintained that the only bill defendant paid was the satellite television bill.
In contrast, defendant testified that shortly after their engagement, plaintiff showed her the Manville property and asked her opinion of the property. She then visited it several times with plaintiff before the closing. Defendant also stated the parties moved into the house on Christmas Day with the help of recalled that plaintiff asked how her credit was and she informed him it was not good. As a result, according to defendant, plaintiff did not ask her to apply for a mortgage, but he promised that after they were married, he would put her name on the deed for the property. For many years, defendant claimed she repeatedly asked plaintiff to add her name to the deed, and he always had an excuse why the addition had not yet happened.
Defendant further testified that she contributed to the marital residence by paying for a new furnace, buying all the furniture and appliances, making some mortgage payments, and helping pay the utilities and other expenses. Defendant presented numerous copies of checks as proof of her payment. She also testified that she was required by the mortgage lender to sign documents related to the 2003 mortgage refinance of the marital home and understood that the home would be held jointly.
Plaintiff's May 12, 2003 refinance application stated that the title was going to be held in fee simple as a joint tenancy with a right of survivorship. According to the judge's written decision, defendant introduced an exhibit at trial showing that the mortgage listed the borrowers as "Michael Zamorsky and Joyce Zamorsky, husband and wife," both parties signed the affidavit of title, both were listed as borrowers on the HUD Uniformed Settlement Statement but plaintiff alone signed the mortgage note and received the monthly mortgage statements. This exhibit is not included in the record.
In the dual JOD, the judge ordered that plaintiff was to retain his $68,000 down payment, and the balance of the stipulated value of the property, minus the balance on the mortgage as of September 1, 2010, was to be divided equally. The judge then determined value and equitable distribution for the parties' three vehicles. Finally, the judge awarded defendant $10,000 in counsel fees, less $1250 defendant owed plaintiff in connection with the equalization of the value of the vehicles.
Plaintiff is not appealing the distribution of the vehicles.
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In reaching her decision, the judge found defendant highly credible and plaintiff "not credible" and "disingenuous." The judge observed that plaintiff did not purchase the property until he met defendant and they had become engaged, they moved in almost immediately, and they lived there for their entire ten and a half years of marriage. The judge found that "although plaintiff may not have wanted to share title with the defendant, he told her he would and she fully believed that the residence was purchased to be their joint possession." The judge also found that plaintiff's assertion that defendant paid no household bills was refuted by defendant's production of checks written for many household expenses. The judge also found that, based on the credible facts, plaintiff's position was "untenable," and concluded "that the house was purchased in contemplation of marriage and thus subject to equitable distribution." As to the award of counsel fees, the judge found that plaintiff had the ability to earn more than defendant, plaintiff's positions were "unreasonable," and defendant was largely successful. This appeal followed.
On appeal, plaintiff first argues that the former marital residence was not bought in contemplation of marriage; rather, it was purchased after his long search for a suitable home in that area. Plaintiff maintains that his marriage to defendant was not typical as it involved no comingling of assets, he paid the bulk of the expenses of the property, and he kept the property in his name alone with the express intent of maintaining it solely as his asset. Thus, plaintiff contends, the property should be deemed a pre-marital asset not subject to equitable distribution, or at least defendant's percentage of the home should be substantially less than the 50% awarded her. Plaintiff also challenges, as erroneous, the trial judge's findings of fact and credibility determinations. We disagree.
We begin by reviewing the well-established principles that guide our analysis. In a divorce action, the court has the authority to "make such award or awards to the parties . . . to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union." N.J.S.A. 2A:34-23(h). "The goal of equitable distribution . . . is to effect a fair and just division of marital assets." Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff'd in part, modified in part, 183 N.J. 290 (2005).
When determining which property is subject to distribution, all "'property owned by a husband or wife at the time of marriage will remain the separate property of such spouse in the event of divorce and will not qualify as an asset eligible for distribution.'" Tannen v. Tannen, 416 N.J. Super. 248, 281 (App. Div. 2010) (quoting Painter v. Painter, 65 N.J. 196, 216 (1974)), aff'd o.b., 208 N.J. 409 (2011). "[T]he burden of establishing immunity from distribution of a particular marital asset or portion of an asset rests upon the spouse who asserts it." Pacifico v. Pacifico, 190 N.J. 258, 269 (2007). However, even pre-marital assets may be subject completely to equitable distribution "where the evidence shows that an asset was purchased in specific contemplation of marriage[.]" Winer v. Winer, 241 N.J. Super. 510, 527 (App. Div. 1990); see also Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div.), certif. denied, 144 N.J. 287 (1988) (recognizing that the "shared enterprise" of marriage may begin before the actual marriage ceremony "where the parties have adequately expressed that intention and have acquired assets in specific contemplation of their marriage").
When considering a fair allocation of marital assets, the court must apply the fifteen statutory factors set forth in N.J.S.A. 2A:34-23.1. See Giovine v. Giovine, 284 N.J. Super. 3, 29 (App. Div. 1995). These factors include, among others, the length of the marriage, the standard of marital living, the economic circumstances of the parties, the earning capacity and income of the parties, each party's contribution to the marital assets, and any other factors deemed relevant by the court. N.J.S.A. 2A:34-23.1. The end result must 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 v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995).
For purposes of distribution, a rebuttable presumption exists "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. Even so, "neither party is automatically entitled to fifty percent of any specific asset, including the marital home." Clementi v. Clementi, 434 N.J. Super. 529, 539 (Ch. Div. 2013). "A decision on equitable distribution of an asset is always subject to the court's discretion following analysis of the specific facts at hand." Id. at 541.
The scope of appellate review of a trial court's equitable distribution of marital property is strictly limited. Genovese v. Genovese, 392 N.J. Super. 215, 222 (App. Div. 2007). The reviewing court only considers whether the trial court's decision was supported by sufficient credible evidence in the record and whether the decision represents a proper exercise of the court's broad discretion to divide the parties' property. Sauro v. Sauro, 425 N.J. Super. 555, 573 (App. Div. 2012), certif. denied, 213 N.J. 389 (2013); Genovese, supra, 392 N.J. Super. at 223.
We give additional deference to the factual findings of family court judges because they have special expertise, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we do not second-guess their exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007). Where our review addresses questions of law, however, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002).
Here, the judge's decision that the Manville property was subject to equitable distribution as an asset purchased in contemplation of marriage was supported by sufficient credible evidence in the record. See Sauro, supra, 425 N.J. Super. at 573; Winer, supra, 241 N.J. Super. at 527. Specifically, plaintiff purchased the property a mere eleven days prior to his marriage to defendant, plaintiff asked her opinion of the residence, plaintiff promised to add defendant to the deed, and the couple began residing there before the marriage ceremony and lived there for the duration of their ten and a half year marriage. Additionally, defendant contributed substantially to the expenses of the residence, including some mortgage payments, during the marriage.
Plaintiff, as the party asserting that the former marital residence was not subject to distribution, had the burden to prove its immunity. See Pacifico, supra, 190 N.J. at 269. He failed to meet this burden. The trial judge found plaintiff's testimony entirely lacking in credibility. And, indeed, plaintiff's assertion that defendant did not contribute to the home or its upkeep was rebutted by defendant's financial evidence. As this court owes deference to the trial judge's credibility determinations when supported by the record, see N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009), we defer to these findings. Based on the credible evidence showing that the property was purchased in contemplation of marriage, we are in accord with the judge's determination to include the former marital residence as a distributable asset.
Since the parties stipulated to the value of the Manville property, the only remaining issue is the apportionment of its value. A rebuttable presumption exists that both plaintiff and defendant contributed equally to the value of the property during the marriage. See N.J.S.A. 2A:34-23.1. The trial judge reasonably determined that, although the parties kept their bank accounts separate, defendant's checks showed they shared various household expenses, and plaintiff's protests to the contrary lacked credibility. Accordingly, the judge's determination that neither party rebutted this presumption is amply supported by the record.
The trial judge performed a thorough fact-sensitive evaluation of all of the statutory factors. See Clementi, supra, 4 34 N.J. Super. at 541 She then equitably awarded plaintiff his down payment and, after deducting the amount owed on the mortgage at the time of the filing for divorce, awarded half the remaining value of the home to each party. This decision was reasonable, was not an abuse of discretion, and is supported by the record; thus, we find no moment to interfere. See Sauro, supra, 425 N.J. Super. at 573.
Next, plaintiff argues that the trial judge improperly analyzed the Rule 5:3-5(c) factors in awarding defendant attorney fees. Specifically, plaintiff asserts that defendant was in a better financial position to pay, and the asset distribution warranted that defendant pay her own counsel fees. Plaintiff also contends that the award of counsel fees was punitive, not equitable. We disagree.
Rule 5:3-5(c), which governs the award of fees in family actions, requires the court to consider nine factors. Essentially, "in awarding counsel fees, the court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees." Mani v. Mani, 183 N.J. 70, 94-95 (2005) (emphasis omitted).
An award of counsel fees is discretionary, and will not be reversed except upon a showing of an abuse of discretion. Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Ibid. (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
Here, the trial judge awarded defendant $10,000 of her requested $14,100 counsel fees. The judge found that defendant had a financial need as she was collecting SSD benefits and workers' compensation only with apparently no foreseeable ability to work. Plaintiff had the ability to pay because, prior to collecting unemployment, he had an earning capacity upwards of $64,000 per year. The judge observed that plaintiff did not assert that he was permanently unemployed or unable to find work and did not present any evidence at trial that he was involuntarily unemployed or unable to find comparable employment. Moreover, he had $12,000 in the bank, retirement funds, and "potentially other assets" as his Case Information Statement was submitted after the close of testimony and thus not subject to cross-examination. The judge further determined that plaintiff took the unreasonable position that the former marital residence was not subject to equitable distribution and supported his claim by incredible and disingenuous testimony, thus unnecessarily prolonging the litigation. Finally, the judge correctly found that defendant had prevailed on the ultimate outcome. As the trial judge's fee award was not an abuse of discretion and was made with a rational explanation, we decline to disturb it. See Barr, supra, 418 N.J. Super. at 46. Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION