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Esposito v. Esposito

Decided: March 20, 1978.

MURIEL ESPOSITO, PLAINTIFF-APPELLANT,
v.
DANIEL JOSEPH ESPOSITO, DEFENDANT-RESPONDENT



On appeal from Superior Court, Chancery Division Essex County.

Halpern, Larner and King. The opinion of the court was delivered by Larner, J.A.D.

Larner

In this matrimonial action the wife appeals from the order of equitable distribution and the alimony award.

The parties were married in 1942 and had three children, all of whom were over 21 and emancipated as of the time of decision below. The marriage was apparently a harmonious one until their separation in 1969. Plaintiff filed her complaint for divorce in late 1971 alleging desertion, and defendant filed a counterclaim based on 18 months' separation. The trial judge granted each litigant a divorce on the respective grounds asserted by them in a judgment dated December 5, 1972. Issues of equitable distribution and support were reserved and ultimately were heard in a series of hearings between January and October of 1975. The court's decision was rendered in a letter opinion dated March 25, 1976, wherein the marital assets were distributed by allocating to the wife a new automobile and two parcels of real estate consisting of the marital home in Livingston and a summer home in Point Pleasant, and awarding all other assets to the husband. The judgment additionally provided for a weekly alimony of $275.

Plaintiff attacks the propriety of the equitable distribution order on two grounds: (1) the judge erred in arriving

at the valuation of some of the assets, and (2) the division of the same was disproportionate and inequitable. There is no dispute on appeal as to the assets which are eligible for distribution. She also contends that the alimony award is inadequate.

I

In the presentation of the valuation of the marital assets the parties indicated their accord on the value of the following items, based upon an agreed valuation date for all eligible property as of March 31, 1975:

Asset Value

Cash $10,024

Marketable securities 145,000

Life insurance policies (cash value) 7,353

Precision Planning, Inc. -0-

Livingston residence (net) 112,658

Point Pleasant residence (clear) 62,000

Florida condominium (net) 16,500

Defendant's pension 8,000

Less: Accounts payable (4,500)

-------

Net total of undisputed items $357,035

The items whose valuation was in dispute involve the following:

Mutual funds

Limited partnership interests in real estate

Defendant's interest in automobile dealership known as Dan Esposito Olds, Inc.

Real estate holdings designated as Nassau Central Corp., Nassau Rose Holding Corp. and 355 Central Avenue, East Orange

Stock interest in Airmet, Inc.

The trial judge's finding on the valuation of these disputed items is limited to a mere statement: "I adopt as my fact findings * * * the values as set forth in defendant's memorandum on pages 8 through 20 * * *." This was a written summation submitted by counsel for defendant after the completion of the hearings.

It is noteworthy that there is no articulation by way of factual preference or analysis to support the carte blanche acceptance of defendant's contentions as to values. It is no more nor less than the purported findings in the case of Nochenson v. Nochenson , 148 N.J. Super. 448, 450 (App. Div. 1977), where the judge simply stated that he was in "agreement with the defendant's summation of the evidence submitted at the trial." As we noted in that opinion, such a finding is not an adequate finding of fact which can stand judicial scrutiny on appeal. See also, Benjamin Moore & Co. v. Newark , 133 N.J. Super. 427 (App. Div. 1975).

In a complex financial case of this type it is particularly important that the judge make specific findings so that the parties and the appellate court may be informed of the rationale underlying his conclusion. Because of the absence of adequate articulation the following questions come to mind. Why did the judge accept each of the valuations advanced by defendant? Why were they more reliable evidentially than those submitted by plaintiff? What were the elements in the evidence which led to such a wholesale acceptance of the argument of one side of the controversy versus the other side? And furthermore, which of defendant's values did the judge accept as to those items where defendant vacillated between differing proposed valuations? The conclusory reliance upon a party's argumentative position relating to a series of disputed valuations of several different property interests renders the judge's findings in this respect valueless. As a consequence, we cannot and will not apply the normal standard of review which limits us to the determination whether there is sufficient credible evidence in the record to support the trial court's finding. See State v. Johnson , 42 N.J. 146, 162 (1964). Accord, Close v. Kordulak Bros. , 44 N.J. 589, 598-599 (1965). See also, Benjamin Moore & Co. v. Newark, supra.

Normally, the nature of these findings would require a remand to the trial judge to make meaningful findings of fact. However, since the ...


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