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Ristine v. Fleming

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 18, 2008

DONNA L. RISTINE, PLAINTIFF-RESPONDENT,
v.
ALFRED FLEMING, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-106-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2008

Before Judges Graves and Sabatino.

Defendant Alfred Fleming appeals from an order of January 26, 2007, determining that he "has no interest in the lands and premises located at 328 South Delsea Drive, Clayton, in the County of Gloucester and State of New Jersey." The order was entered following a bench trial in which only the parties testified. After reviewing the record and the applicable law in light of the arguments presented, we affirm.

The parties were never married, and they have no children. They resided together, however, from approximately 1981 until 2005. During his summation, defendant's attorney asked the trial court to apply the equitable principles set forth in Mitchell v. Oksienik, 380 N.J. Super. 119 (App. Div. 2005), because the parties lived "as husband and wife for 23 years." In Mitchell, we recognized that unmarried cohabitating persons "who have engaged in a joint venture to purchase property in which they reside . . . . are entitled to seek a partition of their property when their joint enterprise comes to an end." Mitchell, supra, 380 N.J. Super. at 127. And we affirmed the trial court's order requiring "that the property be sold and the net proceeds divided equally between the parties." Id. at 123. Nevertheless, the trial court found the facts in this case are distinguishable from Mitchell:

In Mitchell the [c]court determined that, in effect, the parties' relationship constituted a marriage. Certain critical facts are distinguishable in making that determination as to the applicability of the equitable distribution standard to this case. This [c]court finds that there is no evidence of any partnership arrangement between the parties. The [c]court finds the testimony of the Plaintiff Donna L. Ristine to be credible and believable. There is no evidence that the parties conducted their lives as a married couple. Although the parties attempted to have children at one point, there were no children [born] of the marriage. This case is also distinguishable from Mitchell, in that, in Mitchell the plaintiff's parents contributed significantly to the purchase of the residence. That particular fact is significant in determining that there was a perception of a marriage. There are no such facts in this case. The property at 328 South Delsea Drive in Clayton, New Jersey was purchased solely by Donna Ristine from funds that she acquired from the sale of a previous property. She also expended significant funds from her own personal savings account. During the course of their relationship, the parties had separate checking accounts and savings accounts, and filed separate tax returns. They had separate vehicles and vehicle insurance as well as separate titles and registrations.

The parties conducted themselves in a separate and distinct fashion. Both parties had been previously married.

The trial court also determined that defendant had no equitable interest in the house the parties lived in because he had not "contributed any significant funds to the payment of the mortgage" and because he failed "to establish that any significant improvements were due solely to his efforts." Based on our review of the record, we are satisfied these findings are fully supported by the evidence. For example, defendant conceded during cross-examination he did not maintain regular employment while the parties resided together, and he did not dispute the annual income figures shown in his Social Security statement: $2740 in 1981, $90 in 1982, and zero income for 1983 through 1986 and 1994 through 1996.

Our scope of review of a judgment entered in a non-jury case is narrow. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Generally, "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). We should only intervene if we are thoroughly satisfied that the trial judge's finding is clearly mistaken and "'so plainly unwarranted that the interests of justice demand intervention and correction.'" Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). This is not such a case.

In the present matter, the trial court's findings are fully supported by substantial credible evidence, and its conclusions are consistent with controlling legal principles. We therefore affirm substantially for the reasons stated by Judge Rafferty in his written decision on December 22, 2006.

Affirmed.

20080318

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