On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, C-158-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges Lintner and Sabatino.
In this partition case, plaintiff Gaetano V. Bracco, and his wife Annette Bracco*fn1 ("Bracco"), appeal a final judgment entered by the Chancery Division on August 4, 2006, after a non-jury trial. The partition action concerned real estate in Stafford Township that Bracco and the now-deceased Stephen L. Oreto had purchased as tenants in common in 1974. After a trial, the chancery judge divided the parties' interests in the premises, and awarded Oreto's estate ("the Estate") $102,624 as Oreto's net adjusted interest in the property.
On appeal, Bracco argues that the trial judge misapplied his discretion in awarding the Estate any interest in the property, contending that he exclusively deserves its full value. Alternatively, Bracco asserts that the trial judge used an incorrect date in valuing the Estate's separate interest. Bracco finally argues that the judge erred in not requiring the Estate to pay his counsel fees. We affirm.
Here are the pertinent facts, as developed at trial. Bracco and Oreto met one another in the late 1960s, when they were both single and working in Manhattan. A mutual friend informed them about a house for sale in Stafford Township, near the Jersey Shore. Bracco and Oreto decided to buy the property together, initially as an investment and also to use on weekends. On December 13, 1974, Bracco and Oreto purchased the Stafford property for $23,125. Each of them contributed one- half of the down payment and closing costs. The deed, which was never amended, listed Bracco and Oreto as tenants in common.
In or about 1976, Bracco and Oreto moved into the Stafford house as their primary residence. Shortly thereafter, the parties temporarily relocated back to New York for about six months, with Bracco residing with his parents in Staten Island and Oreto living in Brooklyn. They both resumed permanent residency at the Stafford house in 1977.
According to Bracco's testimony, the parties contributed about equally to the costs of the house until some time in 1977. Around this time, the parties began to have disagreements. Oreto had difficulty maintaining steady employment, and was plagued by alcohol and substance abuse. From that point forward, Bracco solely paid the mortgage, realty taxes, utilities, insurance, and other expenses for the house. Bracco also paid for various improvements to the property, including plumbing, fixtures, a new roof, new windows, new siding, an enclosed porch, and landscaping. Oreto, meanwhile, made no contributions except for occasional yard work.
In or about 1986, Oreto was admitted to a rehabilitation facility. After his discharge from that program, Oreto lived in Pennsylvania for awhile. When he returned to the subject premises, Oreto resumed drinking and remained unemployed. Oreto accumulated substantial debts, including unpaid DUI penalties, and borrowed funds from Bracco.
Bracco testified that he and Oreto discussed amending the deed to the property in 1989. At their request, an attorney prepared a new deed that would have changed their tenancy in common to a joint tenancy with a right of survivorship. However, Oreto came to the attorney's office intoxicated and refused to sign the deed. The new deed was never executed or recorded. After this incident, Oreto stopped residing at the house, although he continued to receive his mail there.
On November 13, 1991, Oreto showed up at the house intoxicated. An argument ensued. Oreto struck Bracco with a brass object and then threatened him with a knife. Bracco called the police, and both parties were arrested. Although no criminal charges were apparently filed, Bracco did obtain a Final Restraining Order (FRO) from the Family Part. The FRO, which remained in force for the rest of Oreto's life, prohibited Oreto from having contact with Bracco and barred him from the house. After the FRO was issued, Bracco never saw Oreto again. Bracco did not ask Oreto's parents, who happened to live two doors away, about his whereabouts.
Bracco married on September 15, 2001. He has lived at the subject premises with his wife since that time. Oreto died intestate on December 15, 2002. His parents are his sole heirs. His father, Benjamin Oreto, was appointed administrator of the Estate. Oreto left behind substantial debts.
After Oreto's death, Bracco and his wife brought this action in partition against the Estate, seeking clear title to the premises. The Estate filed a counterclaim, seeking a declaration that the Estate is entitled to a one-half share of the property. ...