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Myerowitz v. Ungar


June 26, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-138-02.

Per curiam.


Submitted April 30, 2008

Before Judges Lisa and Lihotz.

Plaintiff Howard Myerowitz appeals from the June 29, 2007 Family Part order, which granted defendant's request to enforce the provisions of the parties' Final Judgment of Divorce (FJOD). Defendant Shari Ungar filed a motion requiring plaintiff to release her personalty, that is, 150 ounces of silver. Plaintiff maintained he had complied. Following a plenary hearing, the court granted defendant's motion. Plaintiff asserts the court wrongly shifted the burden of proof. Our review determines additional factfinding is necessary. Accordingly, we reverse and remand.

The parties resolved the collateral issues raised in their divorce action by entering into a Property Settlement Agreement (PSA). The PSA was incorporated into the FJOD dated June 18, 2002. Paragraph ten required plaintiff to give defendant 150 ounces of silver from the total silver bars in his possession when defendant paid him his share of the equity in the former marital home. Defendant satisfied her obligation in July 2005, but alleged plaintiff never returned her silver. Plaintiff insisted he had released defendant's property. The disputed fact necessitated a plenary hearing.

During that hearing, each party testified. Plaintiff averred he gave the silver to defendant during a visit to the former marital home, shortly after the entry of the FJOD in 2002, but he could not recall the date. Defendant vowed her property was never returned. A third witness appeared on behalf of defendant and testified the parties discussed plaintiff's need to return the silver to defendant during a meeting held in the summer of 2005.

The Family Part judge struggled in his credibility determination, stating:

The Court found both Plaintiff's and Defendant's testimony to be credible.

The conflicting credible testimony provided the Court with little evidentiary guidance for resolving the factual dispute between the parties. To resolve the issue, the Court had to determine whether either party failed to sustain their burden of proof during the trial. As the matter came before the Court as an enforcement action by Defendant, the Defendant bore the initial burden of producing evidence indicating an obligation owed to her by the Plaintiff. The Language of the [PSA] sufficiently established Plaintiff's obligation to return the silver to the Defendant once he received the monies for the marital residence. As there was no dispute that this precondition had been met, the burden then shifted to the Plaintiff to show that his obligation had been discharged. The Plaintiff, however, was unable to provide any receipt or acknowledgement that his obligation had been fulfilled.

[T]he Court does find that the Plaintiff failed to rebut the Defendant's case. For that reason, by the preponderance of the evidence, the Plaintiff is ordered to tender 150 ounces of silver to the Defendant . . . .

On appeal, plaintiff argues the court incorrectly shifted the burden of proof. Because the judge determined plaintiff's testimony was credible, plaintiff asserts the court accepted his statement that he returned plaintiff's silver, making the conclusion entered erroneous.

Although the scope of our review of a trial court's fact-finding function is limited, and we defer to factual findings "when the evidence is largely testimonial and involves questions of credibility," Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)), we must reverse a trial judge's determination when we discern "error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." In re Guardianship of J.T., 269 N.J. Super. 172, 189 (App. Div. 1993).

We are at a loss to reconcile the Family Part judge's findings in this matter. The overarching crediting of each party's testimony conflicts with the conclusion that plaintiff failed to adduce proofs rebutting defendant's prima facie case that she was owed the silver. The determination that plaintiff "failed to rebut defendant's case" implies his sworn assertion of payment was not believed.

It is clear that only one party's version of events could be accurate. They both cannot be "credible" as suggested by the trial judge. Instead of tackling this pivotal credibility call, the trial judge demurred and created a "burden shifting" analysis. We conclude the credibility findings stated were "so wide of the mark" that the judge was clearly mistaken. J.T., supra, 269 N.J. Super. at 188. We do reject plaintiff's contention that the court erroneously shifted the burden of proof to him.

Generally, burdens of proof are not allocated in statutory law but are left to the courts as matters of procedure. Judicial allocation of the burden of persuasion "can vary depending upon the type of proceedings, the comparative interests of the parties, the relative litigational strengths or weaknesses of the parties, the access of the parties to proof, and the objectives to be served by the evidence in the context of the particular proceeding." [Sculler v. Sculler, 348 N.J. Super. 374, 377 (Ch. Div. 2001) (quoting Mercedes Benz Corp. v. Lotito, 328 N.J. Super. 491, 510 (App. Div.), certif. denied, 165 N.J. 137 (2000)) (citation omitted).]

Even though the trial judge correctly required plaintiff to prove he made payment, Pagano v. United Jersey Bank, 276 N.J. Super. 489, 500 (App. Div. 1994), aff'd, 143 N.J. 220 (1996); see also Rule 4:5-4; Ozolins v. Ozolins, 308 N.J. Super. 243, 249 (App. Div. 1998), the question was one of fact not law, compelling an analysis of credibility.

In performing essential credibility findings, as required by Rule 1:7-4(a), issues for analysis in this case include: plaintiff's general claim of delivery of the silver shortly after the FJOD in 2002 against the third-party witness's recollection of a discussion about the need to return the property in 2005; the reasonableness of defendant's explanation for the delay in presenting her request compared to plaintiff's insistence that her actions were retaliatory; plaintiff's alleged changed explanation of why he removed defendant's silver from her home in the first place; documentation verifying plaintiff's claim he sold all of his silver following the divorce; and the parties general compliance with or thwarting completion of the obligations under the FJOD.

Because the trial judge entered unsupportable credibility determinations and conclusions on the merits of the claims, remand is necessitated. In order to ensure an impartial hearing, the matter must be reassigned to a different Family Part judge. P.T. v. M.S., 325 N.J. Super. 193, 221 (App. Div. 1999).

Reversed and remanded.


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