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Gemignani v. Gemignani

Decided: January 11, 1977.

BARBARA GEMIGNANI, PLAINTIFF-RESPONDENT,
v.
ROBERT GEMIGNANI, DEFENDANT-APPELLANT



Crane, Michels and Pressler.

Per Curiam

In this matrimonial action defendant Robert Gemignani appeals from those portions of the judgment of the Superior Court, Chancery Division, dealing with the distribution of assets acquired during his marriage to plaintiff Bargara Gemignani. No appeal is taken from the provisions of the judgment respecting the dissolution of the marriage, support and alimony (modified in defendant's favor on post-judgment application), custody and visitation and counsel fees awarded to the wife.

The equitable distribution problem here raised is one with which the trial courts deal regularly but to which the appellate

courts of this State have not yet directly addressed themselves. That problem is the appropriate distribution to be made of a marital residence which constitutes the primary asset of parties of relatively modest means and where the age and situation of the children of the marriage are such as to suggest the desirability of their being able to continue to live there with the custodial parent until their emancipation.

The factual context in which the issue here arose was substantially undisputed. The parties were married in 1958 and three children were born to them, now 13, 11 and 7 years of age. The wife, who has secretarial training and work history, has not, however, been employed since the eldest child was born. The husband is employed as a fireman by Union City where the parties, until their separation in 1973, resided in a two-family house which they purchased as tenants by the entirety in 1966. The wife has continued to reside there since the separation with the children, who have continued in her custody. Defendant's annual gross income from his municipal employment is approximately $14,000. He also works part time as a tractor-trailer driver, and his annual gross income from the source has been approximately $3,500 in the last several years.

Prior to trial the parties shared equally the balance in their joint checking and savings accounts and the wife obtained title to the family automobile. The remaining assets available for equitable distribution, in addition to the house, consisted of defendant's credit union balance of $1,724.82; his contributions to his pension fund which, less a loan and plus interest, amounted to $5,833.21, and 22 shares of General Motors common stock valued at between $1,000 and $2,000. The house was purchased, as noted, in 1966 for $23,500, with a down-payment of $5,000. Another $10,000 to $15,000 has been spent in improvements. The proofs as to the current market value of the house were, however, patently inadequate. The wife relied exclusively on the assessed valuation, $33,000. Despite the fact that Union City

was represented as assessing its real property at 100% of true value, we are satisfied that as a matter of economic reality, assessed valuation is not necessarily reflective of true market value. The husband testified to having been offered $45,000 for the house by a prospective purchaser several years prior to the trial. Neither party, however, contrary to the obligation imposed upon them by Rothman v. Rothman , 65 N.J. 219, 232-233 (1974), to fully cooperate in the court's task of fairly determining asset value, offered the testimony of a real estate expert or even a written real estate appraisal by an expert. It is, however, undisputed that the mortgage balance at the time of trial was approximately $12,500 and that the second apartment is rented to plaintiff's widowed mother for $170 a month, an arrangement which predates the parties' separation. There was some suggestion by the husband that that rental was below fair market value, although again no expert proofs were proffered by either party on that question.

The judgment here appealed from awarded ownership of the house to the wife and all of the other assets, namely, the credit union account, the pension fund and the common stock, to the husband. In addition, he was relieved of accumulated arrearages in the amount of $900 on the pendente lite support order previously entered.*fn1 The trial judge's expressed

basis for his distribution was his finding, first, that the wife should be permitted to continue to reside in the house with the children "* * * so as to be able to continue to properly rear the children and to take care of herself," and second, that the evident animosity and hostility between the parties realistically precluded the possibility of the more typical arrangement whereby title would be retained jointly until the youngest child's emancipation, the house then being sold, with an equal division between the parties of the net proceeds. We agree with both of these findings and are satisfied that post-divorce peace would be highly unlikely if the parties were required to maintain a continuing financial relationship for the next 10 or 11 years.

While we agree, however, with the trial judge's rationale, we cannot agree with the method by which he attempted to implement it, particularly in view of his apparent inclination to have divided the marital assets equally between the parties but for the circumstances involving the house. We certainly do not intend to suggest that a distribution which awards less than 50% of the distributable assets to a husband who is the sole wage earner is prima facie inequitable. We are, however, satisfied, without here repeating the relevant factors enumerated in Painter v. Painter , 65 N.J. 196, 211 (1974), that a fair consideration of all of these factors compels the conclusion that the distribution here was inequitable, and that the ...


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