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Yarbrough v. Yarbrough

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 19, 2007

RONALD WAYNE YARBROUGH, PLAINTIFF-RESPONDENT,
v.
PAMELA JOY YARBROUGH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, FM-17-173-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2007

Before Judges Winkelstein and LeWinn.

On June 12, 2006, defendant filed her notice of appeal from the final judgment of divorce entered by the Family Part on April 28, 2006, after a trial held on April 12, 2006.*fn1 On June 30, 2006, the trial judge filed a letter opinion that he denominated an "amendment of judgment pursuant to Rule 1:13-1" to correct "clerical mistakes" and to amplify the decision in response to defendant's appellate filings. This opinion also reduced the amount of spousal support previously awarded to defendant as a lump sum payment in the April 28 judgment. It does not appear that the judge issued an amended final judgment reflecting his June 30 opinion.

On November 16, 2006, defendant also filed a motion with this court seeking a "change of case facts on home value not decreased due to lake dam repair costs." This court reserved on defendant's motion pending resolution of the plenary appeal.

Defendant's notice of appeal identified the following issues as "mistakes made in the judgment": (1) the amount and duration of alimony awarded; (2) equitable distribution of home and contents; (3) 401K, lawyer not producing evidence at trial; and (4) debt. Defendant filed a letter brief along with her notice of appeal but included no point headings or appendix. R. 2:6-1,-2. Defendant thereafter filed a brief in support of her pending motion, on November 16, 2006, that contains some appendix documents such as her pay stubs that were in evidence at trial, but does not include her case information statement or any documentation related to her equitable distribution claims.

Review of the record presented to this court convinces us that the trial judge's reasoning and rulings on all issues raised are "supported by adequate, substantial and credible evidence" and, therefore, are "binding on appeal." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). An appellate court should not overturn the factual findings of a trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. . . ." Ibid. An appellate court should accord particular deference to a family court's fact finding, in recognition of that court's special jurisdiction and expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Regarding defendant's spousal support claim, a July 8, 2005, pendente lite order by the motion judge required plaintiff to pay defendant $418.00, in Canadian dollars, per week. The trial judge subsequently reduced the amount of support to $150.00 per week, in Canadian dollars, in a pendente lite order on March 24, 2006. Defendant never moved for reconsideration of either order. In fact, in proceedings before the trial judge on March 24, defendant's attorney stated:

We were willing to accept the court's tentative decision. I think the court struck a proper balance here. Under the circumstances I think the court recognized that Mrs. Yarbrough has improved her situation and much to her credit she's gone out and she's gotten a job and she's making a little money.

Thus, it appears defendant acquiesced in the March 24 modification of her pendente lite support amount which, in turn, was the amount upon which the trial judge based the spousal support awarded in the final judgment.

Because plaintiff had never complied with either pendente lite support order, the trial judge provided for retroactive compliance with those orders by way of a lump sum alimony award in his April 28 decision; the judge did subsequently reduce the amount of the award in his June 30 opinion, by reducing the extent of the retroactive period covered because of his mistaken understanding of defendant's employment situation pendente lite.

As for defendant's request for prospective spousal support, the trial judge denied same for the reasons set forth at length in his April 28 decision, that included a comprehensive analysis of the statutory factors in N.J.S.A. 2A:34-23. This was a short-term marriage. The parties were married on January 1, 2000. In extensive findings of fact based on the parties' testimony and evidence, the trial judge described their marital relationship as "long distance." They maintained separate homes-plaintiff in New Jersey and defendant in Canada. This was defendant's second marriage; her first marriage had lasted seventeen years and she had one child who was thirteen years old at the time of her first divorce in 2000. Defendant's email to plaintiff of March 23, 2004, convinced the trial judge that "the marriage was troubled and in serious jeopardy in March of 2004." Defendant's own attorney acknowledged in her summation that, at most, a two-year term of alimony would be appropriate. The modified retroactive support award in the amendment of judgment is for a period of forty-four weeks (June 6, 2005 to April 12, 2006), slightly more than one year shy of the two-year period defendant sought.*fn2 The record amply supports the judge's alimony decision and the reasons given. Therefore, we reject defendant's appeal on this issue.

Regarding equitable distribution of the residential property, the trial judge accepted plaintiff's formula of awarding defendant fifty percent of the increased value in the residence from the time of purchase to the present. The judge expressly rejected defendant's claim, raised for the first time in her attorney's summation, that plaintiff "gifted" the property to her. It was undisputed that defendant put absolutely no money into any aspect of this residence; therefore, equitable distribution of a share of the total net equity, either as of date of purchase or as of date of judgment, would constitute an improper windfall to her, especially under the circumstances in this case. At no time during trial did defendant's counsel raise any objection to the appraisal on which the current value was based. In fact, plaintiff first gave defendant a copy of his appraisal at the outset of the day of trial, and defendant raised no objection to this appraisal at any time during trial.*fn3 Here again, the record amply supports the trial judge's equitable distribution decision. Defendant has failed to address the judge's reasoning on this point. We find no merit to her appeal of this issue.

In her pending motion, defendant appears to seek an increase in the property's value for equitable distribution purposes, based on a claim that a purported repair that had reduced that value was, in fact, never done or needed. However, as with most of her issues raised, she provided no documentation of this claim either before this court or at the trial level. The trial judge's equitable distribution of this property was squarely based on the only competent evidence before him, namely, plaintiff's appraisal, which defendant did not contest at trial. Therefore, her pending motion is denied.

Regarding the issue of marital debt, review of the trial transcript reveals (at best) ambiguous testimony about defendant's credit card debt, and discloses no clear evidence of when or for what purposes she incurred such debt. None of defendant's appellate filings provides any further clarification of this issue. Therefore, to the extent she seeks relief on this issue before us, it must be denied.

Regarding the issue of equitable distribution of plaintiff's 401(k), although defendant included this in her notice of appeal, she has failed to address this issue in her briefs before this court. Therefore, the court deems this issue also waived and will not address it in this opinion.

For the foregoing reasons, we conclude that the trial judge's decisions of April 12 and June 30, 2006, are based on substantial credible evidence of record. We affirm the judgment of April 12, 2006 as modified by the June 30 opinion. We remand this matter to the trial court for entry of an amended judgment consistent with the June 30 opinion.


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