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Bailey v. Bailey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 19, 2007

RICHARD I. BAILEY, PLAINTIFF-APPELLANT,
v.
DAWN D. BAILEY, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FM-08-960-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2007

Before Judges Parrillo and Sapp-Peterson.

Plaintiff Richard I. Bailey appeals a final judgment of divorce (FJD) entered on June 27, 2006. According to plaintiff, prior to the entry of judgment, the court (1) failed to give him an opportunity to fully develop his case, (2) failed to equitably distribute the marital assets, and (3) in making custody and support determinations, failed to consider the best interests of the minor child. We affirm.

The parties were married on November 26, 1988. One child, Victor, was born of the marriage on August 13, 1989. The couple resided in Sewell in a home that plaintiff purchased in 1987 along with his mother, Louise Link. During the course of the marriage, defendant claimed that plaintiff subjected her to acts of domestic violence. On May 19, 1993, as a result of the issuance of a domestic violence restraining order, plaintiff was ordered to vacate the marital home. Defendant was awarded custody of Victor as part of the restraining order. Defendant continued to reside in the Sewell home with Victor after the separation until May 1996 when she and Victor relocated to Pennsylvania after defendant obtained employment with the Philadelphia school district. Eventually, Victor returned to New Jersey to reside with plaintiff. The parties remained separated for an aggregate thirteen years with neither party contributing spousal support to the other during this time.

On June 16, 2005, plaintiff, pro se, filed a complaint for divorce. On September 27, 2005, defendant filed an answer and counterclaim. On June 27, 2006, the court entered the FJD.

On appeal, plaintiff raises for our consideration the following points:

POINT I

THE PLAINTIFF WAS NOT AFFORDED THE RIGHT TO FULLY DEVELOP[] HIS CASE AS WERE THE DEFENDANT AND HER ATTORNEY.

POINT II

PLAINTIFF WAS DENIED THE RIGHT TO ACTIVELY PARTICIPATE IN THE EQUITABLE DISTRIBUTION MATTER.

POINT III

PARTIES['] MINOR CHILD RIGHTS AND INTEREST WERE NOT ADDRESS[ED].

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is against these standards that we review the decision below.

We have carefully considered plaintiff's arguments in light of the record and applicable law, and we conclude that they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge McMaster in her oral opinions of March 22, 2006, June 13, 2006, and June 27, 2006. We add the following comments.

I.

Plaintiff argues that during the pretrial conferences and discovery phase of this matter, he was not provided with information he requested and, consequently, was unable to fully develop his case prior to trial. The record does not support plaintiff's contention.

During a March 22, 2006 review of the case, Judge McMaster learned that it was plaintiff who had failed to meet his discovery obligation. Specifically, plaintiff had not supplied defendant with his pension and 401k plan information and, as a consequence, was ordered to sign authorizations allowing counsel for defendant to personally obtain the information. Also, plaintiff failed to provide requested information regarding rental properties he owned, and had not provided defendant with a list of personal property, nor did he provide the bank statements or W-2s, as required by the February 22, 2006 order.

Additionally, although the complaint had been filed a year earlier, plaintiff had not yet propounded interrogatories upon defendant nor answered interrogatories that defendant had served upon him. The court characterized defendant's conduct as a "delaying tactic":

[S]ir, I think you have, from what I see here, you have consistently frustrated the process.

That is my true impression here. When I review this, there are so many things that they need that a Court should not have to micro-manage it to this extent. The attorney knows the procedure. She is telling me as an officer of the court that she served interrogatories on you and, quite frankly, at this point I believe her.

She's going to prove it to me[.]

We review the actions of a trial judge during the discovery phase of a proceeding under an abuse of discretion standard. See Panitch v. Panitch, 339 N.J. Super. 63, 71 (App. Div. 2001). We discern no abuse of discretion here. Any deficiencies in the discovery available to plaintiff were caused by plaintiff.

II.

In his challenge to the court's determination of equitable distribution, plaintiff first claims he was precluded from participating in discussions concerning the value of his retirement plan and that the court gave defense counsel "complete control over Plaintiff['s] pension." To bolster this claim, plaintiff contends that defense counsel prepared and submitted the pension documents to the pension appraisers without plaintiff's input. Plaintiff essentially argues that his participation was limited to paying a portion of the cost for the appraisal, for which he claims he was intentionally overcharged by defense counsel.

Next, plaintiff argues that based upon an appraisal ordered by the court, defendant was improperly awarded $23,055 for the marital home. Plaintiff contends defendant should not have received any equitable distribution related to an interest in the martial home because only he and his mother paid a down payment on the home in 1987 and they, not defendant, were responsible for the mortgage note. Additionally, plaintiff argues defendant is not listed on the deed.

In our review of issues related to the valuation of assets and includability of assets in the marital estate, we typically apply the "adequate credible evidence" standard of review. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978). Consequently, the manner of allocation of marital assets is addressed to the trial judge's broad discretion and will not be disturbed on appeal as long as the allocation falls within a reasonable exercise of the trial judge's discretion. Wadlow v. Wadlow, 200 N.J. Super. 372, 377 (App. Div. 1985); see also La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).

Here, Judge McMaster divided plaintiff's pension "on a 50-50 basis by way of a QDRO." The order indicated that the "evaluation was jointly obtained by the parties through Pension Appraisers, who shall also prepare the QDRO" (emphasis added). The court did indicate that defense counsel was to prepare the forms for submission to the appraisers, but the actual evaluation was to be performed by the appraisers. Thus, plaintiff's claim that defense counsel was given "complete control over Plaintiff['s] pension" is not supported by the record.

Likewise, contrary to plaintiff's contentions, the record indicates that it was plaintiff, not defendant, who selected the real estate appraiser. The property was appraised by Cardinal Real Estate Services at $360,000 as of April 2006, and $173,000 in 1996. Judge McMaster made specific findings relative to the valuation of the marital home that she incorporated into her June 27, 2006 order. The order provided in pertinent part:

3. Defendant shall receive the sum of $23,055 from the Plaintiff representing her interest in the marital home at the time of separation. This figure was determined after subtracting the Plaintiff's mother's interest (13% or $6,890) and then dividing the net equity of $46,110 on a 50-50 basis.

This amount shall be paid to Defendant within 90 days of the date of this Order or reduced to Judgment thereafter if not paid.

All Equitable Distribution issues were determined based upon the proofs presented, the credible testimony offered and a review of the statutory factors as contained on the record.

Further, the fact that defendant was not listed on the deed and that the home was a pre-marital asset does not mean that defendant had no marital interest in the home. Weiss v. Weiss, 226 N.J. Super. 281 (App. Div.), certif. denied, 114 N.J. 287 (1988); Coney v. Coney, 207 N.J. Super. 63 (Ch. Div. 1985); Mol v. Mol, 147 N.J. Super. 5 (App. Div. 1977). The property was purchased six months before the marriage and both parties agreed that it was intended to be the marital home. Under these circumstances, the court's division of the marital residence is amply supported by "adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12.

III.

Plaintiff additionally argues that the trial court failed to consider the best interests of the parties' minor child presumably in rendering the child support award and/or maintenance award. Specifically, plaintiff alleges that the trial court overlooked "Section 6" of his divorce complaint, which plaintiff claims requested that both parties maintain health and dental insurance for Victor. Plaintiff contends that he lost his job during the divorce proceedings and that fact was relevant to the ultimate outcome.

Plaintiff, however, concedes that he did not raise this issue before the trial court. Accordingly, plaintiff is precluded from doing so here. Savage-Keough v. Keough, 373 N.J. Super. 198, 209 (App. Div. 2004); see Monek v. Borough of South River, 354 N.J. Super. 442, 456 (App. Div. 2002). We note, however, that plaintiff's contentions on this issue lack substantive merit.

First, plaintiff's complaint does not contain "Section 6" as he alleges. Rather, Section 6 is located within a proposed settlement agreement which was submitted by plaintiff. The agreement, however, was never executed by the parties.

Second, Judge McMaster, without objection or correction by plaintiff, delineated the issues outstanding before the court. She found "the pension, bank accounts, the marital home, the E bonds, the rental property, . . . and the personal property" as the remaining issues for resolution at trial.

Lastly, plaintiff's claim that he lost his job is contrary to the record. Judge McMaster found that plaintiff retired from his job and is capable of working.

In summary, we are satisfied Judge McMaster's findings and conclusions are supported by substantial, credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Co., 65 N.J. 474, 484 (1974).

Affirmed.

20070619

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