On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-872-05D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Lihotz and Simonelli.
Defendant, Francis Z. Fuzer, appeals from several portions of the final judgment of divorce, entered after a three-day trial, and the denial of his reconsideration motion. Defendant and plaintiff, Szilvia Fuzer, were married for ten years and had no children. The judgment obligated defendant to pay limited duration alimony for four years and provided for equitable distribution of marital assets, to be divided approximately equally between the parties. Defendant argues: (1) the court erred in refusing to consider his reconsideration motion and instead instructing him to file a Rule 4:50-1 motion to vacate; (2) the court erred in awarding alimony because plaintiff was cohabitating with her paramour who was supporting her, or, alternatively, the amount of alimony was not properly determined; (3) several components of the equitable distribution award to plaintiff should not have been made or were improperly calculated; and (4) the award of counsel fees to plaintiff did not accord with controlling legal principles and constituted a mistaken exercise of discretion. We agree that the trial court inadvertently double counted one item of property distributed to plaintiff, and that defendant is entitled to a $9000 credit for that item. We reject defendant's remaining arguments and in all other respects affirm.
The parties married in 1994. Defendant is about twenty years plaintiff's senior and was previously married. The parties are of Hungarian ancestry. They met in Hungary. During the marriage, they vacationed in Hungary about four weeks each year. Defendant continues to have business interests in Hungary.
Marital difficulties began in 2000 and the parties briefly separated in 2001. Plaintiff filed a divorce complaint at that time, but dismissed it. The parties separated again in September 2003. Plaintiff moved in with her paramour, Erno Pleszinger, but reconciled with defendant in January 2004. On December 1, 2004, plaintiff filed the complaint that resulted in the judgment now before us. She resumed living with Pleszinger, and continued to live with him during the pendency of the divorce proceedings.
Defendant worked as a car salesman, and was also an entrepreneur in various business enterprises. In each of the several years before the divorce proceedings began, he reported annual gross income between $114,000 and $148,000. Although he claimed his earnings subsequently decreased, the judge imputed income to him of $100,000 to $120,000 per year, which defendant does not dispute. After coming to this country from Hungary, plaintiff obtained a cosmetology license. Although she was not working at the time of the divorce, the judge imputed income to her of $30,000 per year, which she could earn as a cosmetologist. Neither party disputes that determination. The judge also imputed to plaintiff five percent interest income on the assets awarded to her in equitable distribution.
The parties lived a middle class to lower upper class lifestyle. Defendant held a 401(k) account during the entirety of the marriage, with a balance of just over $50,000 in June 2005. The parties bought and sold several homes over the years. They purchased jewelry together and shopped at boutiques or high end stores. They ate the majority of their meals away from home at very nice restaurants. They drove expensive cars. However, the parties also incurred substantial debt, depleting credit lines on two of the properties they owned, and running up significant credit card debt. They accumulated no savings.
Plaintiff claimed that defendant failed to make car payments and insurance payments for her BMW and, at the time of trial, Pleszinger made these payments. Plaintiff and Pleszinger lived together, with Pleszinger supporting her and paying most of her monthly expenses. This situation existed, according to plaintiff, because she left the marriage with only $1200 and defendant refused to pay any pendente lite support. She did not have many friends in this country to whom she could turn, and she thus lived with Pleszinger and accepted the support he provided in order to avoid being destitute. Plaintiff said that by the time of the divorce Pleszinger had paid about $30,000 to support her, but that he expected repayment and she intended to repay him once the divorce proceeding was concluded and she received what was due her. She expressed a desire to return to work once the divorce was concluded.
At the time of the divorce trial, defendant was living in Florida. He lived with a friend in the house next door to one purchased by defendant and plaintiff. He was working at a BMW dealership.
The only witnesses at the trial were plaintiff, defendant, defendant's former wife (the mother of his seventeen-year-old daughter), and Zsalt Talnai, for whom one of defendant's businesses performed some construction work for $3000. Talnai testified that rather than pay defendant's company directly, he and defendant agreed that Talnai's mother would give $3000 to defendant's father in Hungary. Talnai further testified that defendant told him and his wife not to tell plaintiff about this payment.
At the conclusion of the trial, on June 1, 2006, Judge Holden rendered his decision. He awarded limited duration alimony to plaintiff of $300 per week for four years. He equitably distributed to plaintiff one-half of the following assets (with plaintiff's share shown in parentheses): the payment from Talnai to defendant ($1500); the imputed value of defendant's Commerce bank account, consisting of funds "which were secreted by defendant" ($56,000); funds wired by defendant from that account to Hungary ($9000); defendant's 401(k) plan ($31,101); the proceeds from the sale of the couple's first home ($57,989); and the expected refund on the couple's 2005 tax return ($5750). The judge ordered the parties to sell the Florida home and divide the net proceeds equally, with credit to be applied against plaintiff's share for any provable tax payments or physical improvements made by defendant. An arbitrator calculated the appropriate credits to be $6647.
The judge ordered plaintiff to pay off the outstanding credit card debts. Upon plaintiff's presentation of proof of payment, the judge ordered defendant to reimburse plaintiff for one-half of the amount paid. The judge also ordered the parties to sell any contested personal items and to divide the proceeds equally. Finally, in announcing his oral decision, the judge ordered defendant to pay "60% of Mrs. Fuzer's outstanding attorney fees." In the final order, issued the same day, the word "outstanding" was not included.
Defendant moved for reconsideration on June 20, 2006. He attached a lengthy certification, generally challenging each part of the final order, but in conclusory terms. Defendant also referred to the alleged discovery after trial of a joint bank account held by Pleszinger and plaintiff, characterizing it as "new evidence" of plaintiff's cohabitation and employment with Pleszinger. Defendant had new counsel, who had not read the trial transcripts and, of course, was not present for the trial testimony. Noting that his factual determinations were based largely upon his assessment of credibility, the judge commented that defendant's testimony "was unbelievable, deceptive, dishonest, duplicitous, he was vague with regard to his testimony, the documents that he presented were inconclusive, contradictory." The judge found no basis in the moving papers for reconsideration and denied the motion without prejudice, commenting that counsel could order the transcript and re-file the motion if he chose. With respect to the joint bank account of plaintiff and Pleszinger, the judge advised defendant's ...