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Pascarella v. Pascarella

Decided: January 31, 1979.

IRENE PASCARELLA, PLAINTIFF-RESPONDENT,
v.
VICTOR PASCARELLA, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County.

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

Michels

Defendant Victor Pascarella appeals from several portions of a judgment of the Chancery Division dealing with equitable distribution, alimony and counsel fees.

Plaintiff Irene Pascarella and defendant were married to each other for about 8 1/2 years when plaintiff instituted this action for a divorce on the ground of extreme cruelty. This was the second marriage for both plaintiff and defendant, each having children by a previous marriage. While no children were born to plaintiff during her marriage to defendant, plaintiff's youngest daughter lived with her and defendant in the marital residence, and defendant's three daughters visited frequently and spent weekends with their father and plaintiff.

The trial judge granted plaintiff a divorce on the ground of extreme cruelty. Thereafter a plenary hearing was held with respect to the financial aspects of the divorce. At the conclusion the trial judge among other things, (1) ordered defendant to pay plaintiff $138,008 as her equitable share of the marital property, less credits for furniture; (2) ordered defendant to pay plaintiff $269 a week alimony for the next nine years, and $134.50 a week thereafter, and (3) awarded plaintiff counsel fees of $8,880 to be paid by defendant. This appeal followed.

I

Defendant challenges the equitable distribution, contending that the award to plaintiff of 40% of the marital property was inequitable and unfair since this was the second marriage for both parties, no children were born during the marriage, and the marriage only lasted 8 1/2 years. Additionally, defendant argues that the trial judge erred (1) in determining the value of the marital residence for purposes of distribution by refusing to give him a credit for either the original purchase price of the property or its fair market value at the time he married plaintiff; (2) in calculating the total value of the

marital property available for distribution because it failed to deduct a $33,000 debt he owed to his mother, and (3) by requiring him to pay the $138,008 to plaintiff in a lump sum rather than by periodic payments. He also contends that the awards of alimony and counsel fees were excessive.

We are satisfied from our study of the record that the trial judge gave undue weight to "the education of plaintiff, present non-employability, and her mental condition" in awarding her 40% of the marital property. The judge did not properly weigh and evaluate other equally appropriate criteria in reaching its decision as to how to most fairly distribute the marital property. See Painter v. Painter , 65 N.J. 196, 211-212 (1974). Illustrative in this regard is the judge's failure to consider that (1) this was the second marriage for both parties, (2) no children were born during the marriage, (3) the marriage lasted only 8 1/2 years, and (4) plaintiff did not bring any money or property into the marriage. When these factors are properly weighed and evaluated together with all of the other pertinent factors concerning these parties, it is evident that the award of 40% of the total marital assets was excessive and constituted a mistaken exercise of discretion on the part of the trial court. Accordingly, we reverse that portion of the judgment awarding plaintiff $138,008 and remand the matter to the trial court to redetermine the proportion of the marital assets to be awarded plaintiff in accordance with the criteria established in Painter v. Painter, supra , and reaffirmed in such cases as Carlsen v. Carlsen , 72 N.J. 363, 368-369 (1977), and Esposito v. Esposito , 158 N.J. Super. 285, 298 (App. Div. 1978), and on the basis of a valuation which shall be recalculated in accordance with the views expressed hereinafter.

II

The trial judge found that the marital property consisted of ...


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