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Granate v. Sharav

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 27, 2007

BARBARA GRANATE, PLAINTIFF-RESPONDENT,
v.
YACOV SHARAV, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FM-04-985-05C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 21, 2007

Before Judges Lisa and Holston, Jr.

Defendant, Yacov Sharav, appeals the Family Part's August 2, 2006 supplemental final judgment of divorce which determined issues of child custody, alimony, child support, equitable distribution and attorneys' fees.

Plaintiff, Barbara Granate, and defendant were married on June 16, 1995. One child was born of the marriage, Cheyenne, born November 10, 1995. The parties have been separated continuously since July 1, 2003. Plaintiff filed a complaint for divorce on January 10, 2005. A final judgment of divorce was entered on March 21, 2006. After a three day proof hearing over a three-month period, on August 2, 2006 the court, by letter opinion, decided the issues of custody/parenting time, equitable distribution, alimony, child support and counsel fees. This opinion was memorialized in the order of the same date from which defendant appeals.

Defendant is a citizen of Israel. Plaintiff is an American citizen and resided in Haddon Township with the parties' minor daughter when the cause of action accrued. Plaintiff filed a complaint based on the parties' continued separation of eighteen months with no reasonable prospect for reconciliation. The trial court dismissed defendant's answer and entered default against defendant on February 17, 2006, for his failure to comply with the discovery schedule established in prior court orders. Defendant's motion to vacate the default order was denied as a result of his continuing failure to comply with plaintiff's discovery requests. Consequently, an order was entered precluding defendant at the proof hearing from testifying and presenting any proofs, but he was permitted to defend by challenging plaintiff's proofs by evidential objections, cross-examination and closing argument. Defendant was personally present on two of the trial dates. His counsel was present on all three trial dates.

Plaintiff's first attorney propounded interrogatories and a sixty-nine paragraph notice to produce documents upon defendant's attorney. There were incomplete responses to both the interrogatory questions and to the items requested to be produced. The six documents referenced in defense counsel's belated letter of April 1, 2005, as being supplied were far short of the document request demanded.

Over a ten month period, plaintiff made repeated demands for defendant's compliance with her discovery requests but only partial compliance was provided. Case management orders were entered May 10, 2005, and November 4, 2005. The November 4, 2005 order required fully responsive answers to the interrogatories and notice to produce be served upon plaintiff by December 5, 2005. The order further provided that if defendant were not in compliance with the order, defendant was subject to having his answer struck and defenses suppressed. The order additionally provided for a conference with the court on December 6, 2005 relative to the parties' compliance with the order.

On December 29, 2005, after plaintiff had complied with defendant's discovery requests, plaintiff through substituted counsel inquired of defendant, who had discharged his attorney and was proceeding pro se, regarding the outstanding discovery defendant owed plaintiff.

On January 27, 2006, plaintiff filed a motion to dismiss defendant's answer for failing to produce discovery. By order dated February 17, 2006, the court dismissed defendant's answer. The order noted that defendant had failed to comply with the discovery schedule of prior court orders. While some interrogatory answers had been supplied, they were neither signed nor certified. Defendant had not completely answered some interrogatory questions and had not answered at all other interrogatory questions. Additionally, defendant had not complied with most of the requests contained in the Notice to Produce. The court, as a result, entered a default judgment against defendant.

Thereafter, defendant reengaged his prior counsel, who moved to vacate the default judgment prior to the March 21, 2006 scheduled proof hearing. The court denied the motion by order dated March 16, 2006. The order recited that defendant had failed to comply with plaintiff's discovery requests.

Plaintiff's brief in opposition to defendant's motion to vacate detailed the discovery that still had not been produced. Plaintiff had propounded ninety-seven general interrogatories, forty-five custody interrogatories and a sixty-nine paragraph notice to produce documents. Although defendant's uncertified responses to the custody interrogatories reflected little disagreement regarding parenting issues, the uncertified answers to the general interrogatories were incomplete and the answers given were not numbered to correspond to the appropriate question. As respects the notice to produce, defendant produced no business records, ledger, bank statements, documents evidencing business loans, copies of leases, 2004 and 2005 tax returns, or documents concerning his new business operation at Suburban Station. Many of the documents that were produced were in Hebrew and bore no English translation.

The trial commenced on March 21, 2006 and continued on April 7 and May 24, 2006. Despite defendant's default, defendant participated by cross-examination of his counsel. Documents were accepted from defendant in evidence, and he was permitted to make clarifying statements without first being sworn, which resulted in rulings favorable to defendant as explained in the court's letter opinion. For example, the court noted that one of the two condominium apartments owned by plaintiff in Israel was not proved by wife to be subject to equitable distribution. The court also determined that no marital funds were proved to have been used to maintain a rental property owned by defendant which he stated he acquired prior to the marriage, and thus, the court determined was not subject to equitable distribution. The court also determined that there was a failure of proof as to any pensions, 401K retirement accounts, annuities or profit sharing plans owned by defendant. Therefore, the court found only that "[p]laintiff is entitled to fifty percent of the marital coverture portion of any accounts that may be disclosed [or] discovered."

Defendant asserts, however, that as a result of his preclusion from presenting proofs and affirmative defenses to plaintiff's proofs, plaintiff was awarded a "windfall" based on erroneous estimates of defendant's earning capacity, which was not supported by competent evidence. Additionally, defendant claims he has been denied any definite right to visit with his daughter in Israel, where he lives, despite the parties' agreement that plaintiff should be awarded sole custody of their daughter and he should enjoy liberal visitation with her when he is in New Jersey and visitation in Israel when Cheyenne is accompanied by plaintiff.

Defendant contends that after the parties separated, he returned to live in Israel, where he was salaried as an employee of EL AL Airlines. Defendant claims that in addition to the Haddon Township marital home, the parties owned two small businesses that sold retail food, one at the Cherry Hill Mall and one at the Gallery Mall in Philadelphia. Defendant owned one condominium with equity of $9000 in Israel in the Kofar Hyam project and another piece of farming real estate in Israel, which the judge determined because it was acquired prior to marriage was an asset exempt from equitable distribution.

After separation and after plaintiff filed for divorce the parties agreed by consent order dated May 4, 2005, that defendant would transfer to plaintiff the Cherry Hill business and defendant would retain the Gallery business. Post-separation, defendant contended he tried, without success, to start a third business at Suburban Station in Philadelphia. According to plaintiff, defendant invested $75,000 to start that business. Defendant contends there were no proofs to support plaintiff's contention. Wife testified the start up monies came from marital funds.

Plaintiff stated in her initial testimony she anticipated earning $25,000 from the Cherry Hill store. The court accepted that testimony although by the third day of trial, she contended she intended to terminate the business because she could not afford the lease and because of competition from another "hot dog vendor" in the mall. The court concluded that each of the stores had the ability to yield $25,000 per year in net income. Thus, the court attributed $86,000 in income to husband, $50,000 from the two businesses operated by him and another $36,000 traceable to his employment as a security manager at EL AL Airlines. The court attributed $25,000 in income to plaintiff.

Defendant contends the court erred in only attributing $25,000 in income to plaintiff. Defendant contends the 2004 business tax return indicated the Cherry Hill Mall store, which plaintiff had been operating since June 2005, obtained a profit of $72,000, thus contradicting plaintiff's testimony that the store could be projected to only earn $25,000 per year. However, that tax return reflected corporate income that predated plaintiff's taking over the Cherry Hill Mall operation. Plaintiff contends there was an ample basis for the judge to accept the $25,000 figure. Plaintiff testified that profits were being placed back into the business to expand its product line. Defendant's own statements were that he earned $21,000 from the Gallery and Suburban Station stores combined and that each of the three stores owned by the parties had the same income producing capacity. Additionally, plaintiff testified the business was handed over to her with broken equipment, which required replacement and $10,000 in bills owed to vendors. The pendente lite order providing for the transfer of the Cherry Hill business to plaintiff required defendant to satisfy the debt against the business before transferring the business but he did not do so.

Defendant contends that plaintiff had a work history as a station manager for EL AL Airlines earning in her last year of employment $45,000 and a several month work history with a marketing firm in 2000 at a $35,000 annual salary. Plaintiff explained her reasons for terminating both positions. Both required extensive travel, the airline job was no longer available except at a minimum wage of $7.00 per hour, and with defendant not available to care for the parties' daughter, because he is only in New Jersey three to four days a month, she was unable to continue in a position that required multiple nights away from home each week because of her responsibility to care for Cheyenne.

In addition, plaintiff testified to the standard of living maintained by the parties. She stated that from defendant's earnings they were able to maintain monthly expenses totaling $6990 per month. Defendant's income was attributable to the three stores that defendant maintained as of the parties' 2003 separation, his employment at EL AL and from his rental properties in Israel. It was plaintiff's estimate that total gross income of defendant in 2003 was $120,000 to $125,000. Plaintiff testified that if her projected income of $25,000 were subtracted from the parties' previous income of $125,000, defendant would be left with earnings of $100,000. Thus, plaintiff contends there was a reasonable basis for the court's award of limited duration alimony for five years in the amount of $350 per week based on defendant's combined income from two businesses and his EL AL Airlines salary at $86,000 per year.

Defendant contends the record does not support plaintiff's claim that she incurred $33,000 in household bills from defendant's failure to pay child support for fifteen months and the court's awarding $26,000 of this amount to plaintiff as a credit against his equity in the parties' Haddon Township house. Plaintiff testified that the bills were for mortgage payments, groceries, clothing and other necessaries.

Defendant further contends that the court's equitable distribution award is not supported by the evidence. Even though the court allocated fifty percent of the equity in the marital home to husband and exempted assets owned by him in Israel from equitable distribution, defendant objects to credits given to plaintiff against his net equity in the marital home of $68,500 based on the parties' total equity of $137,000. In the court's oral opinion in a post-judgment motion brought by plaintiff for enforcement of the August 2, 2006 order which is the subject of this appeal, the court explained the court's reason for its assignment of credits to plaintiff from defendant's equity rather than ordering him to pay plaintiff money directly. Thus, his obligations to plaintiff were payable from the fifty percent equity which he was awarded in the marital home. The court explained:

I gave her the house. He owed her money from different things that he had done which I then turned around and said okay rather than have him pay her money we're going to chip away at his equity in the house. So the numbers that were used were $37,500 which was her half of the seed money for the Suburban Station food station, okay? He used [$75,000]. I gave her back [$]37,[600] of that. He owed her $26,000 per her calculation for prior court orders that had not been met, and they had to do with child support, payment of household expenditures, that equated to [$16,000] that he owed her, took that out of the [$]68,500. I awarded her $10,500 in counsel fees for a number of reasons, as I set forth in my decision, the primary one was the disparity in the parties' incomes and the fact that he had been so uncooperative in production of documents that it made her case so much more expensive because of the additional work that we had to go through and that Mr. Craig had to do in order to present the Plaintiff's case.

In addition, he owed her half of the value of the Kofar [Hyam] Condominium, her half was $4500, that came off. So once I added up the [$]10,500 for the counsel fees, the $4500 he owed her for the condo, the [$16,000] he owed her for the expenditures, and the [$37,500] he owed her for the start money for the Suburban Station, that equaled [$]68,500. It used up all of his equity.

The court then applied the factors for alimony set forth in N.J.S.A. 2A:34-23b in determining both the type and amount of alimony. The court explained:

The term of alimony shall be in the amount of $350 per week for a period of five years. The Court is setting a limited duration alimony due to the fact that the parties have been married less than 10 years, that the Plaintiff is relatively young and in good health, that the plaintiff was gainfully employed for years prior to marrying the Defendant and is presently an owner of an asset that could generate income to her. The Plaintiff will then have a period of 5 years in order to grow that business or to make a decision as to another business venture or educational training that she would seek to pursue.

The fact that the Plaintiff will have to obtain health insurance for herself at a monthly cost of between $300 and $500 was an additional consideration of the Court in setting the alimony amount.

As respects the child support award, the court in its letter opinion stated:

Child support can only be calculated after the Court determines alimony. After calculating the Plaintiff's income at $480 per week gross, the Defendant's income at $1,663 per week gross, and the $350 payable to the Plaintiff by the Defendant, the weekly child support obligation is $152.

This shall be paid through the Camden County Probation Department by wage execution through the Defendant's employer at El Al Airlines.

Plaintiff sought counsel fees of $20,000. The court awarded her $18,000 in fees, $10,500 payable from defendant's equity in the marital home and $7500 at the rate of $500 per month beginning October 1, 2006. Fees were awarded based on the bad faith of defendant in failing to pay $10,000 in Cherry Hill business debts, failing to provide discovery in a timely manner and based on the parties' disparity in income.

In its award of custody and parenting time the court explained:

The testimony disclosed that the Plaintiff has been the primary care giver for Cheyenne since birth. At present, the child lives with the Plaintiff on a full time basis while [defendant] has not had hands-on daily contact and involvement/responsibility in raising this child since separation 3 years ago.

The Defendant does not seek an award of custody of the child. He would like to have joint legal custody defined as the ability to participate in the decision making regarding the health, education and welfare of the child. Defendant . . . also seeks to have parenting time with the child and in fact requests an allowance to take the child back to Israel to visit with his side of the family.

The Defendant resides in Israel and when not in Israel, spends time here in New Jersey. Joint custody goes hand in hand with the ability to communicate and cooperate regarding matters relating to the child. Not only do these parties live too far apart from one another to establish an open line of communication, but the testimony clearly demonstrated that there was no past history of communication between the parties and certainly none at the present time. It does not seem that the parties have the ability to confer with one another let alone attempt to cooperate or agree. Because this spirit of cooperation and communication is critical to a joint custodial arrangement, this case would be one where the Plaintiff will be the sole legal and residential custodial parent and the Defendant will have open and liberal parenting time here in the United States on a basis to be determined between counsel. The Plaintiff did indicate her willingness to allow parenting time here in the United States and recognizes the importance of Cheyenne spending time with her father. The parties should have an open and liberal parenting arrangement to enable the Defendant to visit with the child when he is here in the United States. The parties have worked out their parenting time over their two year period separation and the Court is confident that they will continue to work together in this regard.

The Defendant's request to have parenting time with the child in Israel is granted to the extent that the Plaintiff shall accompany the child on these trips to ensure the child's safe return. The reason for this additional element of caution is because of the dual citizenship of the daughter because she has been born to an Israeli national citizen. The Plaintiff expressed concern that it would be difficult if not impossible to get the child back to the United States in the event that the Defendant failed to return the child.

The custody dispute centered on defendant's request for parenting time in Israel without the requirement that plaintiff accompany the child. Defendant asserts that the court abused its discretion in basing its decision on plaintiff's uneducated belief that the child had dual citizenship and, therefore, if Cheyenne entered Israel without her mother, plaintiff would be unable to remove the child from Israel after a visit. Defendant claims, without any historical basis to support his contention, that because plaintiff can simply decline to accompany their daughter to Israel he will be precluded from exercising parenting time with his daughter in Israel. The court noted that the parties had worked out their parenting time without incident during their two year separation and was confident the parties would so in the future. While imposing as a condition of parenting time visits that plaintiff accompany the child to Israel, it did not require plaintiff's presence during defendant's exercise of parenting time in Israel. Plaintiff expressed the desire that Cheyenne maintain a relationship with her father and be able to visit defendant's family in Israel. The court stated that the requirement plaintiff accompany their daughter to Israel also provides a practical solution to the child traveling alone. "Since defendant is working most of the time in Israel, he doesn't have to come to the United States, get the child, fly back, and then fly the child back and go back to Israel again." The court noted that parenting time has never been a problem and plaintiff has taken Cheyenne out of school to insure defendant's ability to spend time with her.

Defendant presents the following arguments for our consideration:

A. THE DEFAULT AND FAILURE TO VACATE DEFAULT CONSTITUTED ERROR

1. STANDARD OF REVIEW.

2. HUSBAND DID NOT VIOLATE ANY ORDER COMPELLING DISCOVERY.

3. TRIAL COURT DID NOT IMPOSE LESSER SANCTIONS FIRST.

4. HUSBAND DID PROVIDE DISCOVERY.

B. TRIAL COURT'S DECISION NOT SUPPORTED BY THE EVIDENCE

1. INCOME IMPUTED TO HUSBAND.

2. THE $75,000 LOAN.

3. INCOME ATTRIBUTED TO WIFE.

4. OTHER CONCLUSIONS NOT SUPPORTED BY THE EVIDENCE.

5. THESE ERRORS NECESSITATE A NEW TRIAL.

C. NO EVIDENCE AS TO BEST INTEREST OF CHILD WAS INTRODUCED AT TRIAL AND THE TRIAL COURT ERRED IN RULING ON CUSTODY AND VISITATION ABSENT SUCH EVIDENCE

D. THIS COURT SHOULD REVERSE BECAUSE THE TRANSCRIPTS ARE NOT ACCURATE AND EXHIBITS WERE NEVER ADMITTED INTO EVIDENCE

E. THE ERRORS COMMMITTED BY THE TRIAL COURT CONSTITUTED PLAIN ERROR

F. THE CASE SHOULD BE REMANDED TO A DIFFERENT JUDGE

I.

Defendant contends the court abused its discretion when it suppressed his answer and entered default against him. Rule 4:23-2, titled "Failure to Comply with Order," grants a court several options for the imposition of sanctions when a party fails to comply with a court order. Rule 4:23-2(b) in applicable part states:

If a party . . . fails to obey an order to provide or permit discovery, including an order made under R. 4:23-1, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;

(3) An order striking out pleadings or parts thereof, . . . or rendering a judgment by default against the disobedient party.

"While a trial judge has broad discretion in the formulation of sanctions under R. 4:23, any sanction imposed must be just and reasonable." Pressler, Current N.J. Court Rules, comment 1 on R. 4:23-2 (2007); see Conrad v. Robbi, 341 N.J. Super. 424, 441 (App. Div.), certif. denied, 170 N.J. 210 (2001). Thus, absent an abuse of discretion, a reviewing court must give deference to the ruling of a trial judge's disposition of discovery matters.

Our Supreme Court has recognized the importance of a litigant's recourse to discovery. In Abtrax Pharmaceuticals, Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512 (1995), the Court stated: "If the discovery rules are to be effective, courts must be prepared to impose appropriate sanctions for violation of the rules." The court continued, "[a]s with all rules it is necessary that there be adequate provisions for the enforcement of the rules [regarding] discovery against those who fail or refuse to comply. Sanctions are particularly necessary in matters of discovery[,] and the power to invoke them is inherent in our courts." Id. at 513 (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333 (1951)).

In Casinelli v. Manglapus, 181 N.J. 354, 365 (2004), the Court advised:

In each case, the court should assess the facts, including the willfulness of the violation, the ability of plaintiff to produce the certification, the proximity of trial, and prejudice to the adversary, and apply the appropriate remedy. That methodology provides judges with discretion to choose a response that is proportionate . . . and allows dismissal of cases in which a plaintiff cannot or will not supply a certification or in which a plaintiff's conduct has irremediably prejudiced the defendant.

When the disobedient party is the defendant, the striking of defendant's answer and affirmative defenses and rendering a judgment by default is the functional equivalent of dismissing a plaintiff's complaint. See Pron v. Carlton Pools, Inc., 373 N.J. Super. 103, 112 (App. Div. 2004). In Abtrax Pharmaceuticals, Inc., supra, the Court advised that "imposition of the severe sanction of dismissal is imposed not only to penalize those whose conduct warrants it, but to deter others who [might] be tempted to violate the rules absent such a deterrent." 139 N.J. at 518 (quoting Zaccardi v. Becker, 88 N.J. Super. 329, 332 (App. Div. 1987)).

The Court also stated, "the standard of review for dismissal of a complaint for discovery misconduct is whether the trial court abused its discretion, a standard that cautions appellate courts not to interfere unless an injustice appears to have been done." Id. at 517. An abuse of discretion arises when a decision is made "without a rational explanation, inexplicably departed from established policies or rested on an impermissible basis." Flagg v. Essex County Prosecutor, 171 N.J. 561, 571-72 (2002) (quoting Achacoso-Sanchez v. INS, 719 F.2d 1260, 1265 (7th Cir. 1985)).

The court in striking defendant's defenses and entering default stated:

It seems to me that [plaintiff] made a valiant effort to try to encourage [defendant] to comply with the Court Rules and to -- and you've also been lenient I think in allowing him to bend the rules a little bit just to get the information. And he doesn't seem to want to cooperate, as I said despite the fact that when I looked at your requests for discovery they're pretty straightforward, there's nothing legalese about them, he can't use the excuse that he doesn't understand what you're asking for. Any lay person who can read could understand what it is in discovery that you need to prepare your case. So -- and I think you've given him more than enough time and consideration to do that.

I am going to enter an Order today dismissing the Defendant's answer for failure to respond to the discovery, and also enter a default.

We are satisfied that the court's sanction for defendant's flagrant violation of the court's discovery orders was well within the broad discretion vested in the trial court. In addition, the sanction was substantially modified in defendant's favor during the three-day proof hearing.

II.

Defendant contends the trial judge's factual and legal conclusions as contained in Judge Famular's eleven-page letter opinion are not supported by the evidence and should be reversed. we disagree.

"The scope of appellate review of a trial court's factfinding 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.

We have carefully detailed in this opinion the trial testimony of plaintiff, the statements of defendant, the arguments of counsel on the issues of alimony, child support, equitable distribution, custody/parenting time, and the findings of the court contained in the court's letter opinion memorialized in the August 2, 2006 supplemental final judgment. We are satisfied the court's findings are supported by adequate, substantial credible evidence. Accordingly, we affirm the August 2, 2006 supplemental final judgment substantially for the reasons articulated by Judge Famular in her written opinion of August 2, 2006 as supplemented by the Judge's oral opinion of October 13, 2006, clarifying her decision on equitable distribution and parenting time in Israel. We add the following:

The judge's imputing of $25,000 in income to plaintiff from her operation of the Cherry Hill store based on plaintiff's testimony as to her expectation of net earnings from the Cherry Hill business was supported by the evidence. The court determined that plaintiff's former earning capacity with EL AL Airlines and with the marketing incentive firm for which she was employed for a short time was no longer feasible given the travel requirement of her positions with those employers and her child care responsibilities. Defendant's contention that the judge erred in not concluding that $72,000 in net income was recoverable from the Cherry Hill business based on a business tax return which predated plaintiff's acquiring the business is without merit in light of plaintiff's testimony that inoperable equipment required her to buy new equipment and that $10,000 in debts from creditors required her to make arrangements with suppliers and creditors to pay off past-due debt, thus reducing net profit. Additionally, plaintiff testified she needed to use earnings from the business to finance new product lines and to make substantial monthly lease payments to the mall.

We are equally satisfied that evidence in the record supported the court's attribution of $86,000 in earnings to defendant based on defendant's EL AL earnings of $36,000 and $25,000 in projected profit from both the Gallery and Suburban Station businesses. The court relied on defendant's statement that each of the three businesses were capable of producing the same income based on the similarity of each of the business operations.

In arriving at a five-year award of limited duration alimony, the court carefully applied the alimony factors in N.J.S.A. 2A:34-23(b) to the factual findings which she determined from the testimony. The court discounted plaintiff's submitted monthly budget of $6990, finding the expenses to be excessive, thus reducing plaintiff's budget to $4520, on which she based the $350 weekly award of alimony. The court considered the duration of the marriage, the parties' ages, their education, work experience, the marital standard of living, the health of the parties, and the wife's ability to make the Cherry Hill business grow or embark on a new business venture or educational training. The court took into account defendant's income from EL AL, his retention of two businesses and defendant's income producing properties in Israel. We find no error in the court's findings.

The court's child support award was based on its findings of income attributable to both parties including the alimony income to be received by plaintiff. We find no error in the court's child support calculation.

As to the equitable distribution award, the assets subject to equitable distribution, their value, and how such allocation can most equitably be made are subject to a sufficient credible evidence standard of review. Rothman v. Rothman, 65 N.J. 219, 232-34 (1974). The statutory factors are enumerated in N.J.S.A. 2A:34-23.1. The court is not restricted in ordering distribution in kind of the eligible assets or awarding a monetary equivalent thereof. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443 (App. Div. 1978).

We are satisfied there was sufficient credible evidence to support the court's equitable distribution award. The evidence which the court considered in its equitable distribution decision included the loan receivable of $10,000 reported on defendant's case information statement (CIS), the $10,000 in business debt plaintiff testified she owed various suppliers and vendors, and which a pendente lite order required defendant to satisfy, the Commerce Bank loan which plaintiff testified she had paid, pendente lite child support totaling $33,000 owed by defendant but never paid, future orthodontist bills for the parties' daughter, and partial reimbursement for the daughter's participation in the Ambassador Program, a student exchange program for which Cheyenne had been chosen to participate. Equity of $9000 in defendant's condominium in Israel was determined based on defendant's trial representations. The property in Israel which defendant stated he purchased prior to the parties' marriage and is used as a "safe haven for donkeys" was exempted from distribution. Defendant was provided a fifty percent distribution of plaintiff's 401K. No distribution was made of purported retirement accounts, annuities, profit sharing plans, bank accounts and vehicles alleged by plaintiff to be owned by defendant because the court determined there was a failure of proof.

The court provided for satisfaction of defendant's equitable distribution obligation to plaintiff by crediting enumerated portions against defendant's fifty percent equity in the marital home which the court awarded to him. The judge precisely described the four awards to plaintiff which offset husband's equity in the marital home in her clarifying oral opinion on wife's post-judgment enforcement motion. We are satisfied that the court's determination of assets subject to distribution, the allocation of the amount of each parties' distribution at fifty percent and the credits against equity to enable the effectuation of the distribution award conforms with Rothman and Borodinsky and was based on substantial evidence in the record.

As respects custody and parenting time, plaintiff's parenting plan was submitted without objection from defendant. The plan essentially conformed with the actual parenting time plan which the parties had successfully utilized without incident since their 2003 separation. It provides for open and liberal parenting time rather than a fixed schedule. The court granted defendant's request for parenting time in Israel, stipulating only that wife accompany their daughter on the trips. There was no requirement that plaintiff supervise defendant's visits with his daughter while in Israel. Plaintiff testified to her concurrence with defendant's retention of a close relationship with his daughter and the desirability of Cheyenne maintaining a relationship with her paternal relatives in Israel. Both parties were granted equal right to medical and school records. No legal authority was presented to the trial judge as to whether or not Cheyenne enjoys dual citizenship. Nor has any legal authority been supplied to this court on that issue. Further, defendant is able to seek enforcement of the parenting time order if requests for visitation in Israel are resisted by wife. We find no abuse of discretion in the court's thoughtful decision on the issues of custody and parenting time.

We are satisfied there was ample evidence for the judge to have made the factual determinations made by her. Accordingly, the Family Party's August 2, 2006 supplemental final judgment is affirmed.

20070827

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