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Elijius v. Elijius


March 11, 2008


On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Essex County, FM-07-759-06.

Per curiam.


Submitted October 17, 2007

Before Judges Payne and Sapp-Peterson.

Defendant Anthony Elijius appeals from the equitable distribution provisions of an amended order of divorce, entered by a judge of the Family Part on October 17, 2006. The contested portions of that order, which equally divided the financial assets and liabilities of the marriage, specifically provided that defendant pay the plaintiff, Christiana Elijius, $50,000 as equitable distribution for plaintiff's share of the value of the marital home, located in Mbaise, Imo State, Nigeria, and $1,750 for plaintiff's share of an adjoining undeveloped piece of land, together with its fence and gate. The order further provided that defendant assume one-half of the marital debt, which portion amounted to $18,822.29.

On appeal, defendant claims that the trial evidence was insufficient to permit valuation of the marital property in the amounts found by the Family Part judge, that the judge should not have employed an adverse inference against him in determining the property's value, and that plaintiff's share should be limited to one-half of the marital funds used to construct the house on inherited land that was exempt from distribution pursuant to N.J.S.A. 2A:34-23. Additionally, defendant claims that the marital debts were erroneously calculated. We affirm.

We are hampered in our review of this matter by the inadequacy of the evidence that was presented during the course of the trial on the issue of the value of the marital property in Nigeria and by the parties' failure to include in the record any proofs of what occurred during the pre-trial period with respect to appraisal of that property. We also note that the marital debt was determined by plaintiff's counsel at the conclusion of trial to be in the amount of $36,110.58, and that the sum of $37,644.58 appears to have been the basis for the requirement in the amended judgment of divorce that defendant pay a fifty-percent share of $18,822.29. We have been offered no explanation for this difference, although we note that, during his oral opinion at the conclusion of testimony, the judge stated that he would permit "adjustments" to the amount following trial. Further, we note that the initial order of divorce did not contain provisions relating to custody, child support or equitable distribution, and that a later date was set for finalization of those terms. If a hearing occurred on that later date, or if negotiations occurred between the entry of the initial and amended orders of divorce, we have been provided no record of it. Equally significantly, we have been provided by defendant with no specifics as to how the judge's or the parties' calculation of the marital debt erred, but rather, we have been presented only with a general complaint that the amount was excessive because of the inclusion of pre-marital debt, and that the marital debt was inadequately proven.

The record discloses that plaintiff and defendant were married in a traditional, civil ceremony in Nigeria on June 24, 1997. Following the marriage, plaintiff returned to the United States where, for a period of time, she was a student at Temple University, studying pharmacology. She did not complete the program. In 1998, defendant came to the United States, where he has remained. The couple have two children, a son born on May 28, 1999 and a daughter born on May 16, 2001. On October 4, 2005, plaintiff filed a complaint for divorce on the grounds of extreme cruelty. At various times, both have been employed as science teachers by the Irvington Board of Education. Defendant has since resigned his position, and he alleges that he is a student at the New Jersey Institute of Technology. However, defendant has hindered verification of that fact by refusing access to his student records.

As we have stated, the home that is the subject of this appeal is located in Nigeria. It was designed by plaintiff's brother, an architect, who also served as general contractor for the project. Its construction commenced in July 2003, and at the time of the divorce trial in September 2006, it apparently remained incomplete. However, the first floor was furnished and inhabited, although the inhabitants were unspecified. Pictures in the record suggest that the exterior walls were complete on the second-floor level. A planned penthouse does not appear to have been constructed. At trial, plaintiff testified that the house had, or was planned to have, eleven or so bedrooms.

Although that fact was never verified, pictures suggest that both the style and detailing of the house were lavish, exceeding that of many American McMansions.

Defendant claimed at trial, without any documentary proof, that the house was constructed on land in a family compound that was willed to him and his siblings by defendant's father. He also claimed that the purchase of adjoining land, also the subject of appeal, was intended as repayment to his siblings for use of land in the compound. Again, no proof of the transfer of the property to joint family ownership was presented, nor was there documentary evidence of the purchase price of the adjacent property or the cost of a fence and gate installed by defendant on it.

Prior to trial, by order dated July 27, 2006, defendant was required to provide plaintiff access to the property for purposes of appraisal. The record suggests that defendant opposed such an appraisal, and it is clear that it did not occur. Proof of value was provided, in part, by plaintiff's testimony that her architect-brother informed her that the house was worth $100,000. Defendant claimed that $20,000 had been spent in its construction, although in his case information statement, he had given the figure of $30,000. Proofs offered by defendant with respect to his expenditures are inadequate to determine the true cost of construction, which in any event, would have been relevant to, but not dispositive of value at the time the divorce complaint was filed. Bank statements, introduced at trial, show withdrawals of $1,000 or more from an account in defendant's name during the period of construction in amounts that well exceed $100,000. Defendant attributes most of these withdrawals to the cost of three trips by the family to Nigeria and to their living expenses during extended stays in that country. However, again, no proof of those expenses was offered. Moreover, defendant's testimony was contradicted by plaintiff's statements that, while in Nigeria, they lived with relatives, and at their expense.

Marital debt was proven by plaintiff at trial by the introduction of documentary evidence. Some premarital debt, consisting of plaintiff's student loans utilized to finance studies leading to her degree from Rutgers University and a credit card balance, was also discussed. Defendant has properly disclaimed responsibility for those premarital debts, but has acknowledged responsibility for interest payments and penalties imposed during the period of the marriage when no payments on those debts were made. The remainder of the debt was principally comprised of student loans utilized to finance plaintiff's educational endeavors at Temple University, commenced after the marriage, a loan from Temple allegedly utilized to bring defendant to the United States, federal and state income tax liabilities incurred by plaintiff as the result of her failure to pay taxes during the period of the marriage, and various small outstanding debts, a judgment, and miscellaneous expenditures. We have not been provided with the calculation utilized by plaintiff's counsel to establish the exact amount of the debt as set forth at the conclusion of the trial, and as we have stated, we have no information regarding the reason for the adjustment in that amount that appears in the amended judgment of divorce. However, our review of the record satisfies us that premarital debt was properly removed from plaintiff's calculations, and the defendant was charged only with debt incurred during the marriage and interest charges on unpaid premarital debt.

Our review of the Family Part judge's factfinding in this matter is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). The judge's factual conclusions are binding on appeal when supported by adequate, substantial and credible evidence in the record. Id. at 411-12 (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). Furthermore, deference is especially appropriate in a case such as this when evidence is largely testimonial, and the resolution of factual disputes must, of necessity, turn on an evaluation of credibility. Id. at 412. In these circumstances, we may disturb the judge's factual findings only if "'they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms, supra, 65 N.J. at 484). Because the Family Part possesses expertise in the area of family law, we afford its fact-finding particular deference. Id. at 413.

In this matter, the Family Part judge was confronted with an absence of expert testimony*fn1 and widely divergent, tenuously supported views by the parties as to the value of the marital home in Nigeria. While we can wish that the proofs were better, in the circumstance of overseas property, and in light of the pictures of the house and the evidence of substantial withdrawals by defendant from his bank account, we find no error on the judge's part in accepting plaintiff's valuation as the more credible.

In determining value, the judge stated that he was drawing an adverse inference against defendant as the result of the impediments he had raised to obtaining an accurate appraisal of the house's value. Such an inference may be drawn in circumstances in which a party intentionally conceals evidence of relevance to pending litigation, particularly in a case such as this in which the cooperation of the parties is essential to an equitable resolution of the pending issue of property distribution. Rothman v. Rothman, 65 N.J. 219, 233 (1974); see also Jerista v. Murray, 185 N.J. 175, 201-02 (2005) and Rosenblit v. Zimmerman, 166 N.J. 391, 401-02 (2001) (discussing the use of an adverse inference). While our information regarding defendant's conduct is derived principally from comments by plaintiff's counsel during trial, we note that, on appeal, defendant has not contested their truth, but merely asserted that an inadequate foundation was laid at trial for their utterance.*fn2 However, that the Family Part judge who had shepherded the case through the pre-trial period concurred in counsel's evaluation of what had taken place gives credence to the representations that were made. In any event, we find the evidence of value offered by plaintiff to have been sufficient, regardless of whether an adverse inference were drawn or not. Ample grounds exist in the record for doubting defendant's credibility on financial and other issues.

On appeal, defendant also objects to the admission of plaintiff's statement that the house was worth $100,000 as hearsay, since the statement was based on the opinion of plaintiff's brother, who was not present at the trial. Defendant did not, however, make such an objection at the trial itself and, since we do not regard the introduction of the hearsay as having been clearly capable of producing an unjust result, in light of the corroborating evidence presented, we decline to consider this argument. State v. Macon, 57 N.J. 325, 337 (1971); see also R. 2:10-2.

Additionally, defendant argues that the court erred in its valuation because the property upon which the house was constructed was inherited by defendant and his siblings and thus exempt from distribution pursuant to N.J.S.A. 2A:34-23. Because this issue was not raised at trial,*fn3 we need not address it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, we note that defendant has again failed to produce any proof, by way of will or property deed, that would demonstrate such to be the case. Moreover, we do not find establishment of a value of $100,000 to have been unreasonable, even if the value of the underlying land is not considered.

As far as the adjoining property is concerned, we find the value assigned by the judge to it, the surrounding fence, and gate to have been minimal in nature. Defendant's objections to that value, again, lack any documentary support, and we reject them. R. 2:11-3(e)(1)(E).

For the reasons that we have previously stated, we also decline to further address defendant's arguments with respect to the marital debt, finding the documentary proofs introduced at trial to have provided an adequate foundation for the amount claimed, and insufficient specification by defendant as to the existence of any error. R. 2:11-3(e)(1)(A) and (E).


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