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Scavone v. Scavone

Decided: May 17, 1990.

JACQUELINE J. SCAVONE, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
CARMINE D. SCAVONE, DEFENDANT-APPELLANT AND CROSS-RESPONDENT



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Bergen County, whose opinion is reported at 230 N.J. Super. 482 (Ch. Div. 1988).

Petrella, O'Brien and Havey.

Per Curiam

[243 NJSuper Page 135] In this matrimonial litigation, defendant ex-husband appeals from those portions of the judgment of divorce distributing the

marital assets and awarding alimony. Specifically, defendant contends that the trial court erred in valuing defendant's seat on the New York Stock Exchange (NYSE) as of the date of trial, rather than the date the complaint was filed or in the alternative, as of the date defendant's partner sold his one-half interest. Defendant also argues that the trial court erred in failing to consider the tax consequences of the equitable distribution award and other pertinent criteria in distributing the assets. Finally, defendant argues that the trial court's award of alimony was excessive.

Plaintiff ex-wife cross-appeals, contending that the trial court abused its discretion in denying her application for counsel fees. We affirm.

After 37 years of marriage, the parties were divorced following a lengthy trial by judgment dated November 29, 1988.*fn1 During the course of the marriage defendant acquired a one-half ownership interest in a seat on the NYSE. Both parties agree that the seat is not only marital property, but is an asset which is subject to fluctuations based on "market conditions." As of the date of the filing of the complaint, August 22, 1985, the value of the seat ranged from $350,000 to $400,000. Its value reached in excess of $1,000,000 in 1987. In September 1988, defendant's partner sold his 50% share in the NYSE seat for $250,000. As of the date of the trial, October 12, 1988, it was stipulated that the value of the seat was $700,000.

Judge Krafte fixed the value of defendant's one-half interest in the NYSE seat at $350,000, representing one-half of its value as of the trial date. 230 N.J. Super. 482, 493, 553 A.2d 885. After analyzing conceptual differences between "active" and "passive" marital assets, the judge reasoned that defendant's NYSE seat "is a passive asset acquired during marriage"

whose fluctuation in value from the date of the complaint to the date of trial was due to market conditions, unrelated to any efforts or input by either party. Ibid. Thus, citing Bednar v. Bednar, 193 N.J. Super. 330, 474 A.2d 17 (App.Div.1984) and Wadlow v. Wadlow, 200 N.J. Super. 372, 491 A.2d 757 (App.Div.1985), he concluded that the valuation date should be the trial date, rather than the complaint filing date.

The parties essentially agreed as to the value of the remaining marital assets, including the marital home, which, together with defendant's interest in the NYSE seat, totalled $669,940. The judge concluded that each party was entitled to one-half of the marital assets. He accordingly distributed $334,970 to plaintiff, including proceeds of the sale of the marital residence. Defendant was given his interest in the NYSE seat, various life insurance policies and a balance remaining in his Keogh Plan after distribution of a portion to plaintiff. The judge also awarded alimony to plaintiff in the amount of $1,581 per month from November 1, 1988 through May 31, 1989, and thereafter $1,330 per month.

We find no error in Judge Krafte's method of valuation. In Bednar, we noted that there was no iron-clad rule for determining the date of valuation of marital assets but "use of a consistent date is preferable, such as the filing of the complaint[.]" 193 N.J. Super. at 332, 474 A.2d 17. However, we stated that "[t]he question of enhancement or accretion in value pending distribution is separate[,]" and we distinguished between an increase in value caused by market factors or inflation and an enhancement which is the result of the "personal industry of the party controlling the asset[.]" Id. at 333, 474 A.2d 17. We held that "[i]nterim accretions pending actual distribution due to the diligence and industry of a party in possession of an asset, independent of [the] market forces," should accrue to that person alone, but where the enhanced value is attributable to market factors or inflation, "each party should share equitably in the increment[.]" Ibid.; see also Wadlow, supra, 200 N.J. Super. at 384, 491 A.2d 757 (defendant

entitled to share in increase in value to marital home from date of filing of the complaint to date of hearing, since the increase ...


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