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Jacobitti v. Jacobitti

Decided: April 27, 1993.


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

J.h. Coleman, Arnold M. Stein and Conley. The opinion of the court was delivered by Arnold M. Stein, J.A.D.


We consolidate these appeals for Disposition.

In A-3840-90T1, we affirm the order declaring the parties' antenuptial agreement to be unconscionable and therefore unenforceable. We affirm the judgment of divorce in the award of $75,000 to defendant-wife as equitable distribution, representing her 50% interest in the marital dwelling and determination that the money which defendant withdrew from a joint account and from a money market fund in her own name belonged to her, against which plaintiff was to receive no credit. We modify the alimony and support provisions of the judgment, and remand the matter to the trial Judge for the limited purposes which we set forth below.

Finally, in A-1600-91T1, we affirm the order awarding the $60,000 counsel fee to defendant.

The marriage of the parties lasted approximately sixteen years. At the time of trial, plaintiff, a retired physician, was eighty-five years old, apparently in good health. Defendant is nineteen years younger, suffering from progressively deteriorating multiple sclerosis and wheelchair bound.

We review the relevant rulings of the trial Judge.

The Judge first concluded that the antenuptial agreement was unenforceable because it was unconscionable, in that the divorce would leave plaintiff a wealthy man, and defendant virtually penniless. He also determined that plaintiff failed to completely disclose his worth when the agreement was executed. The agreement stated that plaintiff had "assets in excess of ONE MILLION THREE HUNDRED TWENTY FIVE THOUSAND and 00/100 ($1,325,000.00) DOLLARS with a yearly income in excess of ONE HUNDRED THOUSAND and 00/100 ($100,000.00) DOLLARS" and that defendant had assets "in excess of TWO THOUSAND and 00/100 ($2,000.00) DOLLARS and an income of approximately TWELVE THOUSAND FIVE HUNDRED and 00/100 ($12,500.00) DOLLARS per year." Defendant would receive nothing if the parties were separated or divorced at the time of plaintiff's death. If defendant survived plaintiff while the parties were living in a marital relationship, she would receive $50,000 less any money in a joint bank account or in trust for her benefit. Money in excess of $50,000 in either account would belong to plaintiff's estate. The agreement was amended after marriage to increase defendant's inheritance to $250,000 if the parties were living in a marital relationship at plaintiff's death. The trial Judge's factual findings and Conclusions are supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(A); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974). His decision is consistent with case law. DeLorean v. DeLorean, 211 N.J. Super. 432, 436-38, 511 A.2d

1257 (Ch.Div.1986) (there must be detailed disclosure of financial worth by parties executing agreement, and enforcement of agreement should not leave one spouse destitute or a public charge); Marschall v. Marschall, 195 N.J. Super. 16, 30-31, 477 A.2d 833 (Ch.Div.1984).

We affirm the $75,000 equitable distribution award to defendant, representing a 50% interest in the marital dwelling in Maywood. The house was custom built during the marriage for approximately $108,000. Defendant participated in decorating the home. The parties treated the house as if they expected to live there together for the rest of their lives. Defendant also contributed to plaintiff's status in the community, to his medical practice and to the family unit prior to the onset of her debilitating illness. These findings are based upon substantial credible evidence in the record and should not be disturbed. Rova Farms, supra, 65 N.J. at 484, 323 A.2d 495. Considering defendant's contributions to the marriage, a 50% award of the value of the marital dwelling as defendant's equitable share of the marital assets was therefore well within the trial Judge's discretion.

Plaintiff contends that the Judge arbitrarily fixed the market value of the marital residence at $150,000, without an appraiser's expert testimony to support this figure. See Bowen v. Bowen, 96 N.J. 36, 49, 473 A.2d 73 (1984); Orgler v. Orgler, 237 N.J. Super. 342, 357-58, 568 A.2d 67 (App.Div.1989). We caution trial Judges against fixing market value of real property without the benefit of expert appraisal evidence. Id. at 358, 568 A.2d 67. It is at least partly plaintiff's fault that no appraisal proofs were offered. In any event, it would be an inJustice to remand this matter for proof of the marital dwelling's value where so little is at stake. It is inconceivable that the $150,000 value fixed by the trial Judge would be off by more ...

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