On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County.
Michels, Gaulkin and Deighan. Deighan, J.A.D.
Plaintiff Nicholas R. Monte, Jr., appeals from an award of equitable distribution and support in a final divorce judgment entered on December 12, 1984. The trial court divided the assets equally but did not obligate defendant Virginia Monte to repay loans from plaintiff's family. Also, $250 per week was awarded for unallocated support of defendant and Kristine, the parties' 17 year old daughter who was living with defendant. The parties had been in financial straits, not only at the time of the divorce, but for several years prior thereto. Plaintiff's real estate business had been failing for many years and he borrowed excessively; at the time of the divorce the debts apparently exceeded the marital assets, and many of the outstanding obligations were to plaintiff's family. Defendant claimed she had no knowledge of and received no benefit from any of the funds borrowed from plaintiff's family.
On this appeal plaintiff contends that the trial court (1) failed to make findings of fact and conclusions of law to support its determinations; (2) failed to apply proper legal standards for apportionment of the marital debts in holding him solely responsible for the loans, and (3) erred in awarding defendant alimony where the record indicates that her earnings were comparable to those of plaintiff and that she was essentially self-sufficient.
Subsequent to this appeal, defendant moved to enforce litigant's rights and plaintiff responded with a cross motion for discovery of defendant's financial circumstances, for an order to compel defendant to file a case information statement and for a plenary hearing on support and defendant's needs. After
a hearing on May 15, 1985, the trial court both granted and denied the defendant's applications and denied all of the applications of plaintiff. On this appeal, defendant filed an appendix which consists of the transcript of the hearing on the motions held May 15, 1985 and submits that the transcript is a part of the record because the trial court "continued its jurisdiction of this matter, and as such the record below was expanded." Plaintiff vigorously objects to the use of the motion transcript to supplement the record to defeat his contentions that the trial court failed to make findings of fact and conclusions of law in support of its determinations. From our review of the transcript of the hearing held on May 15, 1985, there is no indication that the trial court was elaborating on the determinations made at the original divorce hearing. Also, no statement was filed after a notice of appeal was served upon the trial court. R. 2:5-1(b). Although the trial court retains jurisdiction, R. 2:9-1(a), to enforce judgments and orders pursuant to R. 1:10, nevertheless defendant failed to move to supplement the record as required by R. 2:5-5(a).
We deem it unnecessary to pass upon the issue of whether the transcript hearing on May 15, 1985 to enforce litigant's rights is a part of the record. The facts developed at the enforcement hearing are not relevant to the issue of equitable distribution. Unlike an award of alimony which can be adjusted after divorce to reflect unanticipated changes in the parties' circumstances, a property division or equitable distribution may not be adjusted. Mahoney v. Mahoney, 91 N.J. 488, 498 (1982). Further, in our view, the findings and conclusions, even as supplemented, are deficient.
The parties were married on November 16, 1957 and two daughters, Karen and Kristine, who at the time of the divorce hearing were 23 and 17 years of age respectively, were born of the marriage. Plaintiff, who was engaged in various aspects of real estate transactions throughout the marriage, purchased a real estate corporation known as L & M Realty in 1967. All
shares of stock of the corporation were either issued or transferred to him. The real estate office was located in a building owned by plaintiff and defendant.
Initially, the business prospered and in 1974 two additional offices were opened but were subsequently closed the following year because they were a financial detriment. Plaintiff ascribes financial difficulties of his real estate business to a general depression in the real estate market and a prolonged illness which befell him in 1978. In that year he came down with what was later diagnosed as a hymoglebic migraine, causing him to be hospitalized and unable to work for over one year. L & M was struggling and, although plaintiff's accountant states in a financial report that plaintiff did not receive any income since 1980, plaintiff contends to have taken no salary from the company since 1979. During most of the marriage plaintiff supported defendant who was a homemaker; however, she was also a bookkeeper for the business for a short time after they were first married. Also, during and after plaintiff's illness she worked at L & M offices on a half-day basis for two or three years. While defendant denies it, plaintiff asserts that defendant kept the books of the company while he was ill.
Beginning in the late 1970's plaintiff began to borrow money heavily and, up to the time of the separation between the parties, had borrowed large sums of money from banks, friends, relatives and mortgage companies. He testified that he borrowed for personal reasons as well as business. Plaintiff contends that he borrowed an aggregate of approximately $58,000 from various members of his family. He also borrowed $5,500 against a life insurance policy. At the time of the trial there was an outstanding judgment against plaintiff and defendant in the sum of $6,000 for loans from plaintiff's mother and sister. These obligations were eventually satisfied out of the proceeds of the sale of the marital home.
While none of the loans from plaintiff's family were evidenced in writing, plaintiff nevertheless testified that he agreed
to repay the loans to members of his family if he sold his business or office building or if he got on his feet again financially. Plaintiff indicated that all the funds from the various loans were deposited in a joint-checking account in a bank in Edison in the names of both parties and were used for family expenses. However, he could not recount which expenses had been paid with the money from those loans.
Defendant sought to relate the increased borrowing to an extramarital affair plaintiff was having with an employee. She produced letters written in 1980 indicating that the employee became pregnant and that plaintiff had set aside $5,000 for himself and the employee. Plaintiff admitted to having an affair and conceded that he had taken the employee to Vermont ...