July 20, 2007
KIM A. FANDEL, PLAINTIFF-RESPONDENT,
STEPHEN J. FANDEL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-428-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 14, 2007
Before Judges S.L. Reisner and C.L. Miniman.
Defendant Stephen J. Fandel ("the husband") appeals from portions of the Final Judgment of Divorce entered in this matter on June 5, 2006, following a bench trial on the issues that he and plaintiff Kim A. Fandel ("the wife") were not able to resolve by agreement. Those issues were equitable distribution of a Toms River shore house, equitable allocation of debt to the husband's parents and various credit card companies, alimony, and child support.*fn1 We affirm.
The parties were married on November 8, 1982, when the wife was twenty-four and the husband was almost twenty-eight. The wife was a high school graduate who was employed in retail positions prior to her marriage. Two children were born of the marriage, one on April 24, 1986, and the other on March 10, 1990. The parties separated on May 4, 2004, and the complaint for divorce was filed in October of that year. At that time, the wife was working at the Crim School in Martinsville, New Jersey, and consequently was home with her children during the summer months. The husband was self-employed at Fandel Construction in Raritan, New Jersey.
During the pendency of the divorce proceedings, the parties were able to resolve the issues of custody, health insurance and costs. They also agreed to equitable distribution of: (1) the husband's twenty-five percent interest in a condominium in Fort Lauderdale, Florida; (2) the husband's 4.16% interest in Seven Acres Land Corporation, Incorporated, and Colorado Café, Incorporated; (3) the wife's interest in two TFS Securities accounts; (4) the husband's account with Wachovia Securities; (5) the wife's teacher's pension and annuity fund; (6) five vehicles owned variously by the wife, the husband, or both; and (7) the husband's business, known as Fandel Construction.
The parties also stipulated to certain facts relating to the shore house. They agreed that on December 12, 1980, the husband had purchased land located at 3323 Long Pointe Drive in Toms River for $54,000. They agreed that the value of the land was $525,000 and the value of the house was $325,000. The principal balance on the mortgage at the date of separation was $216,454.81. All other facts respecting equitable distribution of the shore house, equitable allocation of debt to the husband's parents and various credit card companies, alimony, and child support were tried before the Honorable Ann R. Bartlett on February 7, 8, and 27, 2006. The judge decided the issues by a Dual Judgment of Divorce on May 31, 2006, to which she attached a twenty-five-page opinion of the court.
Judge Bartlett found the following facts regarding the shore house:
The parties became engaged to marry in November 1981. Sometime before their engagement [the husband], who had an abiding desire to live on the water, had found an area in Toms River where he thought he would like to build. He took [the wife] to show her a lot that he was thinking of buying and in the course of looking around they found another lot that he liked better. He received a $54,000 gift from his mother to purchase the lot, to which he took title on December 12, 1980. In May 1981 he received the go-ahead from the EPA and a permit to erect a bulkhead on the property's shoreline. He obtained a permit on July 1, 1981 and drew up plans for the design of the house with the aid of an architect. [The husband] framed the house and did the masonry work himself. He subcontracted out the electrical and plumbing. [The husband] applied for an electrical inspection on February 17, 1982. The first inspection took place that day.
The parties married on November 8, 1982. The house was fully enclosed by then but the interior work was still at the rough stage. According to [the wife] the home was finished approximately a year after the parties got married. However the final electrical approval was not obtained until April 13, 1984.
According to [the husband], whose testimony was laced with facts that appeared to fit the purpose of the moment with no regard for truthfulness, he had saved up $28,000 to build the home. The implication of his testimony was that this was pre-marital money. His assertion is supported by the fact that he lived with his mother and paid no shelter or even food costs to her, while he conducted his construction business from their home, but his general level of earnings in the last five years of marriage suggests that he never made enough to save up $28,000 in even the three year period from when he bought the lot until the house was essentially finished. Both parties testified that they contributed their earnings to a household account. [The wife] worked at General Motors as an administrative assistant full-time in the first few years of the parties' marriage. Her income was not provided in testimony. She believes that the parties paid the balance of the cost of building the home from their joint income.
[The husband] testified that he borrowed the funds from his mother to complete the home. His list of funds borrowed from his mother does not support his testimony. The only amount borrowed from her during the period when the house was being built was $10,000 in January 1983 for the purposes of a "loan payment." He did testify, glibly, that he bartered for services in the construction of the shore house but his smirking remark that "it was a very good year for bartering" hardly lent credibility to his testimony. He also testified, without giving a time frame, that he worked full-time at his business and three nights a week as a disc jockey and snow-plowed in the winter to raise enough money for the shore house.
The court finds that [the husband] did barter for some or all of the electrician's work, the plumber was allowed to charge on [the husband]'s materials account at Somerville Lumber in payment for some or all of his services, the [husband] did the roof himself and he bartered for the windows. The rest of the funds came from [the husband]'s savings and the parties' joint income.
The shore house contains 2000 square feet and has seven rooms and three full bathrooms. [The husband] added the third bathroom sometime during the marriage and also converted a sunroom into a dining room. [The wife] testified that the shore house was completely renovated twice during the marriage. When asked about [the wife]'s contributions to the shore house [the husband] answered, "She cleaned good." According to [the wife], the parties jointly maintained the shore house interior, exterior, yard and bulkhead. She caulked and painted the interior, kept it clean and did decorating and detail work.
The parties lived throughout the marriage with [the husband] mother in Raritan. According to [the wife] they spent every weekend at the shore house from April to the end of the season, and she and their children stayed there during the week after school was out. [The husband] agrees that they spent summer weekends there but did not stay there during the week. [The wife] described it as the parties' home and stated that she could not have tolerated the arrangement of living with her mother-in-law all those years if she didn't have the shore house to go home to on the weekends. She also described it as the home to which the parties intended to retire. [The husband] denied that it was their retirement home.
Judge Bartlett then made fact findings regarding the marital lifestyle and the wife's employment history. With respect to the Florida condominium, the judge found:
During the marriage the parties vacationed in Florida and, according to [the husband], talked about retiring there. At [the husband]'s suggestion, his parents purchased a penthouse on the intercoastal waterway with views of the ocean and Fort Lauderdale. The deed to the Florida property was put in the name of [the husband], his mother and his sister. The [husband] later changed his testimony to imply that he went to Florida alone looking for a retirement home to purchase. Finally, in response to cross-examination which apparently suggested to [the husband] that his interest in the Florida property might be subject to equitable distribution, [the husband] again changed his story and said that the parties never talked about retirement before he purchased the Florida property. It is clear to the court from [the husband]'s testimony on this issue that he gave whatever answers he believed would serve his interests in preserving this asset for himself and his family. It is also apparent that [the husband] had no intention of making the Florida residence a retirement home for [the wife] and himself, and was engaged in keeping any real estate he owned, alone or with his family members, beyond the reach of [the wife]. [The husband]'s testimony on this subject was incredible.
The judge then made various findings of fact respecting the parties' income and debts and various assets acquired during the marriage. In doing so, the judge found:
In sum the [husband]'s testimony as to his income and his motives and intent in purchasing the assets described above is not worthy of belief. His smirking, laughing, off-handedness and oppositional reactions to question on cross-examination support the court's impression that his testimony was for the most part unreliable.
Judge Bartlett then explained at length her reasons for concluding that the shore house, but not the land on which it sat, was subject to equitable distribution. She then appor- tioned the mortgage between the land and house and concluded that "the equity in the house, for equitable distribution purposes, is $325,000 less $82,772 equals $242,228." The judge then determined that the total marital credit card debt was $26,742.78. She also found that the parties owed the husband's mother $71,943.60 for loans and $2,290.85 that she advanced for the third-quarter 2004 taxes on the shore house.
After finding the facts, the judge considered all the statutory equitable distributions factors found in N.J.S.A. 2A:34-23.1 and made findings of fact relevant thereto. She noted that the parties had agreed to divide the undisputed assets equally with the exception of the husband's business. She also found that the wife was not underemployed but that the husband failed to clearly demonstrate his income. As a consequence, the judge imputed income to him of $61,510 by relying on the New Jersey Department of Labor Occupational Wage Survey.
Judge Bartlett awarded equal distribution of the net equity in the shore house and equal allocation of the debt to the husband's mother. Because the husband and his mother had control over liquidation of the Florida condominium and the Colorado Café properties from which the wife was entitled to equitable distribution, the judge determined that the wife's duty to repay the mother would abide liquidation of those assets.
With respect to the credit card debt, the judge allocated responsibility for the task of actual payment of the balances of various credit cards to the party who had control of the card following their separation. As to equitable allocation of the $26,742.78 marital credit card debt, the judge concluded that 75% should be paid by the husband and 25% by the wife based on their respective incomes and marital lifestyle, which resulted in a net payment to the wife of $9047. The judge also awarded the wife alimony of $1900 per month in light of the parties' twenty-two-year marriage, their marital lifestyle, and their respective earnings and income potential. Finally, the judge calculated child support under the Child Support Guidelines based on the parenting time agreement reached by the parties and awarded $133 per week to the wife.
The husband raises the following issues for our consideration:
POINT I --
THE DEFENDANT/APPELLANT'S PREMARITAL BEACH HOUSE WAS NOT PURCHASED IN CONTEMPLATION OF THE MARRIAGE UNDER THE FACTS OF THIS CASE AND UNDER THE PRESENT CASE LAW.
POINT II --
THE FACTS IN EVIDENCE DO NOT SUPPORT A FINDING THAT PLAINTIFF IS ENTITLED TO PERMANENT ALIMONY AND PLAINTIFF FAILED TO DEMONSTRATE A NEED FOR SAME.
POINT III --
THE TRIAL COURT ERRED WHEN IT DID NOT IMPUTE INCOME TO THE PLAINTIFF FOR PURPOSES OF CHILD SUPPORT WHEN PLAINTIFF WAS EMPLOYED PART TIME AND THE INCOME WHICH THE COURT UTILIZED IS LESS THAN MINIMUM WAGE IN NEW JERSEY.
POINT IV --
THE TRIAL COURT ERRED WHEN IT ALLOCATED RESPONSIBILITY FOR THE CREDIT CARD DEBT 25% TO PLAINTIFF AND 75% TO DEFENDANT AS THE ALLOCATION WAS BASED ON A MISTAKE OF FACT AS TO DEFENDANT'S INCOME AND, CONSIDERING THE ALLOCATION OF THE DEBT DUE DEFENDANT'S PARENTS, THERE WAS NO BASIS FOR AN UNEQUAL ALLOCATION OF THE CREDIT CARD DEBT.
POINT V --
THE TRIAL COURT ERRED WHEN IT DID NOT ALLOW FOR SET OFFS AGAINST PLAINTIFF/ RESPONDENT'S PORTION OF THE MONIES DUE DEFENDANT'S PARENTS FOR MONIES LOANED BY THEM BY THE MONIES DUE PLAINTIFF/RESPONDENT FROM DEFENDANT/APPELLANT.
Our review of the record in the light of the written arguments advanced by the husband discloses that these contentions are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A), (E). We affirm substantially for the reasons articulated by Judge Bartlett in her thorough and insightful opinion delivered on May 23, 1996. We add the following.
"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). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Here, the record discloses that there was adequate, substantial, credible evidence to support the findings made by the trial judge.
As the husband acknowledged, he bore the burden of establishing that the shore house was immune from equitable distribution. Weiss v. Weiss, 226 N.J. Super. 281, 291 (App. Div.), certif. denied, 114 N.J. 287 (1988). In light of the multiple credibility determinations made adversely to the husband by the judge, it is readily apparent that the husband failed to carry his burden of proof. The testimony offered by the wife was more than adequate to support Judge Bartlett's ultimate conclusion that the shore house, as distinct from the land, was subject to equitable distribution. We also note that the judge, indeed, considered all of the statutory factors in determining alimony, and we find no error in this regard.
Finally, with respect to repayment of loans due the husband's mother, it was entirely equitable to make the wife's repayment of her share of those loans conditioned on the sale of the two properties because neither property is in the wife's name and her equitable interest in the net equity can be held hostage indefinitely as a result. Burdening her with repayment when the asset cannot be ordered liquidated would be clearly unfair.