On appeal from Superior Court, Chancery Division, Camden County.
Botter, Antell and Furman. The opinion of the court was delivered by Botter, P.J.A.D. Antell, J.A.D. (dissenting).
[186 NJSuper Page 412] The parties were divorced by judgment dated September 22, 1980. On this appeal plaintiff challenges rulings of the trial judge (1) fixing the terminal date of the marriage for the purpose of identifying property eligible for equitable distribution under N.J.S.A. 2A:34-23 as having been acquired "during the marriage," and (2) rejecting plaintiff's offer, as a declaration
against interest admissible pursuant to Evid.R. 63(10), of an out-of-court statement allegedly made by defendant's brother which pertained to defendant's ownership of a townhouse in Philadelphia, title to which was in defendant's brother's name.
Plaintiff and defendant were married on September 24, 1960 and one child was born to them in 1964. In August 1974 defendant left the marital home in New Jersey and moved to Philadelphia where his business was located. On November 6, 1974 this action was begun by the filing of a complaint for separate maintenance based on a claim of desertion and nonsupport. An order for support pendente lite was entered on February 24, 1975.
On August 26, 1975 defendant filed a complaint for divorce in Pennsylvania. That action was ultimately dismissed for lack of prosecution after it became apparent that defendant was unable to prove a cause of action under Pennsylvania law. Later, after moving from Philadelphia to Delaware, defendant filed an action for divorce in Delaware, but relief was "denied" to him in that action also, and he returned to Philadelphia. On December 11, 1979 plaintiff amended her complaint in this action to seek a divorce on the ground of separation for 18 months, and defendant counterclaimed for a divorce on the same ground. On these facts the trial judge determined that the marriage was "dead" for all intents and purposes when the parties separated in 1974 and that assets thereafter acquired were ineligible for distribution. The principal significance of this conclusion was that a townhouse in Philadelphia in which defendant resided would not be subject to equitable distribution even if defendant and not his brother was the true owner, since it was acquired in 1977.
The Supreme Court has sought a practical rule for determining the end of a marriage for equitable distribution purposes. The date of the divorce judgment was rejected in Painter v. Painter, 65 N.J. 196, 217-218 (1974), in favor of the date the divorce complaint was filed. However, Smith v. Smith, 72 N.J. 350, 361-362 (1977), held that a separation agreement
accompanied by separation of the parties in fact, even without a property settlement, would mark the terminal date of the marriage for these purposes. The same result would apply when the agreement is the basis for a separate maintenance decree. Carlsen v. Carlsen, 72 N.J. 363, 370-371 (1977); see Smith v. Smith, supra, and Brandenburg v. Brandenburg, 83 N.J. 198, 205 (1980). Separation of the parties accompanied by the physical division of a substantial portion of their assets, without a formal separation agreement, also fixes the date for determining when the parties are deemed to have gone their separate ways for the purpose of sharing in property acquired thereafter. DiGiacomo v. DiGiacomo, 80 N.J. 155 (1979). However, an oral agreement involving support payments only will not signal the end of the marriage since it is not "a clear expression that both parties no longer consider themselves a partnership. . . ." Brandenburg v. Brandenburg, supra, 83 N.J. at 209.
Applying these principles to the case at hand we conclude that the filing of a separate maintenance action and the entry of an order for support pendente lite will not be deemed to end the marriage for equitable distribution purposes. These events do not signify acceptance of the separation by both parties but merely reflect a spouse's need for support, as in Brandenburg, supra. Nor was it an unequivocal signal of the termination of the marriage by the party bringing the action, as in the case where a divorce is sought.
The subsequent filing of an action for divorce by defendant in Pennsylvania signaled his rejection of marital ties and should be taken to mark the end of the marital partnership for the purpose of sharing in after-acquired property. The reasons given in the cases for using the commencement date of a divorce action in this State apply as well to an action for divorce brought in a sister state. Equitable distribution is the division of assets accumulated through the joint efforts of the parties during "the shared enterprise" of marriage. Smith v. Smith, supra, 72 N.J. at 361. Regardless of the date on which the
divorce action is commenced, the purpose of equitable distribution is to divide fairly assets acquired when both parties contributed to the marital enterprise, whether by earned income or as a homemaker. Brandenburg v. Brandenburg, supra, 83 N.J. at 210. Thus, using the date when the Pennsylvania divorce action was commenced comports with the object of excluding property acquired after the parties cease to contribute as a team to common marital goals. The fact that defendant was unsuccessful in his Pennsylvania divorce action does not alter this result, since termination of the action was not followed by reconciliation of the parties. What followed, in fact, was defendant's move to Delaware and the prosecution of a new divorce action for a period of time not clearly revealed in the record before us. This was consistent with his earlier attempt to end the marriage.
Thus, we conclude that the date determining the division of assets in this case is August 26, 1975. Ordinarily, this would not alter the result reached below since the principal undistributed asset allegedly owned by defendant, the Philadelphia townhouse, was not acquired until 1977. Distribution of that asset was excluded by the trial judge at the end of the trial on the ground that plaintiff failed to carry the burden of ...