April 11, 2008
ELIZABETH B. HADDAD, PLAINTIFF-RESPONDENT,
LOUIS HADDAD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1910-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2008
Before Judges Graves, Sabatino and Alvarez.
In this divorce action, defendant Louis Haddad appeals from a judgment of divorce (JOD) dated December 20, 2006. The parties were married in 1983. They have seven children----all daughters. As noted by the trial court, the parties "contested virtually everything" including custody of the five youngest children, child support, alimony, equitable distribution, counsel fees, and whether plaintiff, Elizabeth Haddad, would be permitted to permanently relocate with the children to an area near Syracuse, New York, if she was awarded custody. The divorce trial took place on eleven non-consecutive days, beginning on May 15, 2006, and ending on August 15, 2006.
On December 20, 2006, the trial court set forth its findings and conclusions in a 110-page written decision, and the court entered a JOD on the grounds of "an eighteen (18) month separation and extreme cruelty." The JOD also: (1) granted plaintiff sole custody of the five youngest children currently ranging in ages from seven to twenty-one, found that the oldest child, born July 27, 1986, was "emancipated subject to her return to college," and awarded the parties joint custody of the second oldest child, born November 30, 1988; (2) permitted plaintiff "to permanently relocate to an area near Syracuse, New York," and allowed parenting time for defendant twice a month; (3) equitably distributed the marital estate in the total amount of $1,413,629 with plaintiff receiving sixty percent ($848,178), and defendant receiving forty percent ($565,451); (4) awarded plaintiff attorney's fees "in the amount of $68,728, which is 65% of her attorney's billings"; (5) ordered defendant to pay $6,000 a month in permanent alimony, and five years of rehabilitative alimony in the amount of $2,000 per year; (6) ordered defendant to pay $2,247 a month in basic child support, and $750 a month as additional child support to be placed in a separate fund to be maintained by plaintiff for the children's college education, to which plaintiff must also contribute $250 a month; and (7) required defendant to obtain medical insurance for his unemancipated children, a life insurance policy in the amount of $150,000 for each unemancipated child, and a $500,000 life insurance policy for the benefit of plaintiff.
Recognizing the likelihood "that this case will have a long exposure in the courts well after this decision is rendered," the trial court set forth its findings and conclusions in a comprehensive decision. The court's decision provides background information on the parties' marriage, the procedural history of the case, defendant's abuse of alcohol, and it thoroughly analyzes each of the disputed issues.
On appeal, defendant presents the following arguments:
THE LOWER COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE JUDGMENT OF DIVORCE BASED UPON EIGHTEEN MONTH SEPARATION AND EXTREME CRUELTY.
THE LOWER COURT COMMITTED REVERSIBLE ERROR IN AWARDING SOLE CUSTODY OF THE FIVE YOUNGEST CHILDREN TO THE PLAINTIFF.
THE LOWER COURT COMMITTED REVERSIBLE ERROR IN PERMITTING PLAINTIFF TO PERMANENTLY RELOCATE WITH THE FIVE YOUNGEST CHILDREN, AND IN FAILING TO ADEQUATELY ADDRESS PARENTING TIME.
THE LOWER COURT COMMITTED REVERSIBLE ERROR IN ITS ALIMONY AND CHILD SUPPORT AWARD AND IN THE EQUITABLE DISTRIBUTION OF MARITAL ASSETS.
THE LOWER COURT COMMITTED REVERSIBLE ERROR IN ITS AWARD OF ATTORNEY[']S FEES.
After considering these contentions in light of the record, the applicable law, and the trial court's decision, we are satisfied defendant's arguments do not warrant extended discussion. R. 2:11-3(e)(1)(E). The trial court's findings are amply supported by sufficient credible evidence, and its conclusions predicated on those findings are legally sound. Accordingly, we affirm substantially for the reasons stated by Judge Terrence P. Flynn in his written decision rendered on December 20, 2006.
Plaintiff, a high school graduate with one semester of community college, grew up in the Syracuse area. She met defendant in early 1982, while he was in his last year of law school at Syracuse University. Following his graduation from law school, defendant moved back into his parents' home in Brooklyn, New York, while he studied for the bar exam. In October 1982, plaintiff moved into defendant's parents' home for a short period of time until she found employment, first as a dental assistant, and then at defendant's father's maternity clothing store.
After their marriage on November 12, 1983, the parties resided at an apartment in Brooklyn. Plaintiff continued to work for defendant's father, and defendant was employed by Heightnor and Brightstein, a commercial collection law firm. According to defendant, in July 1985, the parties moved out of the Brooklyn apartment and into a house located at 3 Auerbach Lane, Manalapan, New Jersey. In July 1986, plaintiff, who was pregnant with the parties' first child, stopped working and has not been employed since. On July 27, 1986, the parties' first of seven daughters was born.
In June 1992, defendant left his law firm and began his own commercial collection practice in Brooklyn, New York. Defendant is a sole practitioner, and he deals mostly with collection agencies. As noted by the trial court, a major issue throughout the trial was whether defendant deliberately ignored "what had previously been a thriving practice in order to gain an advantage in this divorce."
The parties' family continued to expand, and on December 1, 1999, the parties sold their house at 3 Auerbach Lane, and moved into an eight bedroom, five and one-half bathroom house in Manalapan. Defendant could not recollect the purchase price of this home, but plaintiff estimated it cost between $700,000 and $800,000. This was the marital residence at the time of the divorce. While residing in this house, plaintiff gave birth to the parties' youngest daughter, who was born on July 27, 2000. Plaintiff filed a complaint for divorce in June 2003, and defendant filed a counterclaim for divorce three months later.
With regard to custody and plaintiff's application to permanently relocate to the Syracuse, New York area, there was no expert testimony, but the trial judge interviewed all but the youngest child, pursuant to R. 5:8-6, and he made extensive findings of fact, which are fully supported in the record. The trial court found "defendant's alcoholism was a substantial cause of the divorce action," and it rejected defendant's claim "that he completely stopped drinking alcohol as of March, 2005":
The [c]court is convinced that the defendant remains an active alcoholic. His condition preceded this divorce action and continues to seriously interfere with his relationship with his wife and daughters today. He not only refused to recognize the need to confront his addiction but he has also made concerted efforts to mislead the [c]court as to the serious nature of his condition.
Of course, the most troubling implication to be drawn from the defendant's attempt to deceive the [c]court as to his condition is that in his persistent efforts to lift his driving restrictions he was completely willing to disregard the potential danger to his children should he drive while under the influence of alcohol. With each application he was demonstrating that he did not care, and now does not care, that his misconduct could put them at risk.
On the other hand, the [c]court is not convinced that his condition has in any way inhibited his ability to practice law. If the defendant is an alcoholic, he is a functioning alcoholic. As a basis for this assessment, the [c]court needs to look no further than the very conduct of the defendant during the course of the trial. Though clearly inexperienced in the area of matrimonial law and procedure, and though many of the positions he has sought to take have been legally and factually untenable, the defendant has conducted himself as an experienced, capable and often shrewd advocate, both on his feet and in the papers he has submitted. Moreover, a review of some of the strategic decisions that the defendant has made, particularly in the area of concealing and depleting assets, reveals an individual who [is] completely in control of his faculties when he chooses to be.
The parties' relationship with their daughters is generally unremarkable except for the defendant's alcoholism. The plaintiff was and remains essentially a stay-at-home mother. She took on the major role in raising the girls while the husband worked at building a law practice to support the family. There have been the expected complaints that the father took little interest in his daughters and did not frequently attend their school, dance or sports events. This may well have been because of his need to support such a large family. In later years, it was certainly due in part to his frequent intoxication.
Even more recently it may have been due to his obsession with the matrimonial lawsuit and his desire to punish the plaintiff for the divorce action.
The court found "[t]he parties simply do not communicate well," and "the defendant is often either hostile or intoxicated and sometimes both" in telephone conversations with plaintiff. While defendant expressed his willingness to care for the children, he did nothing for the two oldest daughters who resided with him other then "to offer them money and a place to stay." A great concern for the court was that defendant had "not dealt with his alcoholism." The trial court found this problem posed a threat to the children's safety, and placed into question the stability of his home. On the other hand, the court found plaintiff spent extensive time with the girls, she "demonstrated that she will keep a stable and nurturing home," and "there is no question that the plaintiff should be the parent having sole custody over all of the unemancipated children."
The trial court noted that in order to grant plaintiff's request to relocate the children to the Syracuse area, plaintiff bore the burden of "establishing both that she is acting in good faith and that the move will not be inimical to the children's best interests." The trial court proceeded to examine the twelve factors set forth by the New Jersey Supreme Court in Baures v. Lewis, 167 N.J. 91, 116-17 (2001), for evaluating removal applications. In particular, the court determined plaintiff grew up in Syracuse and has family there who "have already supported her financially and by assisting for the caring for her children." Her family support in Syracuse exists in stark contrast to New Jersey, where defendant's family refuses to speak with her. Additionally, plaintiff proved she "has done all that could reasonably be expected to insure that the defendant can see his children," whereas "defendant has done nothing to make the visitation work." Moreover, the trial court viewed defendant's objection to the relocation as "without value unless the defendant could demonstrate that he is willing to support his family, wherever they may be. As long as he continues to assert that he has no money and no prospect of obtaining any, he offers no likely scenario wherein the plaintiff can feel financially or emotionally secure" in New Jersey.
With respect to the value of defendant's law practice and defendant's income, the court accepted the testimony provided by plaintiff's expert, Alan Hirschfeld, a certified public accountant, as "both reasonable and justified." Hirschfeld found that the value of defendant's law practice at the time of the filing of plaintiff's complaint was $348,000. Plaintiff's expert also analyzed defendant's net annual income from 1998 through 2003, and the trial court summarized Hirschfeld's findings as follows:
As to income, [Hirschfeld] first looked at the firm's tax returns. Relying on I.R.S. Revenue Ruling 59-60, he chose a five year income spread to adjust for the ups and downs of normal business cycles. He could only use the returns up to 2002 as the defendant had not yet filed his 2003 return. Before arriving at an average annual income, he made certain adjustments to the figures listed on the returns. For example, he noted that, despite the defendant's assertions to the contrary, the defendant was receiving approximately 5% of his income in undeclared cash. [Defendant] was also improperly declaring some personal expenses as business expenses. With these adjustments, [Hirschfeld] found the business income to be as follows:
The trial court also concluded that defendant's "sudden income deficiency" was nothing more than an effort to obtain "a strategic advantage" in the divorce proceedings:
Up to the time of the filing of the divorce action, the defendant was earning a significant income despite his alcoholism.
For the next two years he continued to maintain an active office. As the trial approached, that situation appeared to change. The defendant gave several reasons for that change. None are convincing. First he said that there was a temporary downturn in the overall business cycle. Then he said that that downturn was more permanent. Finally, he said that he was consumed with the litigation. Notably, he never blamed his alcoholism, perhaps because to do so would jeopardize his position with regard to child custody and the removal of the children to Syracuse. Recently, he has begun to suggest that his overall health is a factor.
. . . The defendant, as stated earlier, has shown that he can function at a high level in the courtroom. This, combined with the unbelievably coincidental timing of the decline just upon the filing of the divorce together with the defendant's overall pattern of deception in this case, makes it highly unlikely that the defendant's alcoholism has played a role in his business fortunes. It is far more likely that this sudden income deficiency is nothing more than the defendant's effort to obtain a strategic advantage in his divorce.
Finally, there appears to be no alternative to the mother earning more than a minimum wage until she obtains more education and training. Until that time, and without the support of the defendant she will have to work at low paying jobs and rely on her children to supply child care services for the younger children where possible. In setting child support, the [c]court will impute the minimum wage to her. The [c]court will also credit her with receiving $6,000 per month in permanent alimony.
At the same time, the [c]court will impute income to the defendant based on his last known year's income reflected in the forensic accountant's testimony, and the income he would be expected to gain from his share of equitable distribution. The total is $276,000.
The scope of our review is limited. "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). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . ." Ibid. (internal quotations omitted). "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). "Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (alteration in original) (internal quotations omitted). Furthermore, "[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.
Judge Flynn wrote a thorough, thoughtful decision, and he fully explained the reasons for each of his determinations. Moreover, his findings are fully supported by substantial credible evidence, and his legal conclusions are consistent with controlling legal principles. We therefore affirm substantially for the reasons set forth in the written opinion accompanying the JOD entered by Judge Flynn on December 20, 2006.
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