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Horn v. Horn

July 14, 2008

TIMOTHY B. VAN HORN, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
LISA VAN HORN, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-000040-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 31, 2008

Before Judges A.A. Rodríguez, C.S. Fisher and C.L. Miniman.

Defendant Lisa Van Horn (wife) appeals from a number of issues decided adversely to her in the Judgment of Divorce (JOD) relating to identification and distribution of marital assets, retroactive child support and counsel fees. Plaintiff Timothy B. Van Horn (husband) cross-appeals from other portions of the JOD, including the quantum of child support, alimony and medical expenses, counsel fees and certain evidence issues at trial. We affirm in all respects.

I.

The husband is a graduate of the Warren County Technical School, a high-school level vocational school. The parties were married on August 2, 1980, when he was seventeen and she was sixteen, pregnant and still in high school. The wife left high school after the couple married but eventually earned a high school equivalency degree. Neither party attended college. Three children were born of the marriage: Timothy on October 16, 1980; Jessica on August 27, 1982; and Sarah on July 5, 1985.

The husband worked as a welder after graduating from technical school, earning four dollars per hour. He then worked as a laborer and load operator at various sand and gravel quarries. The wife did not initially work after the marriage, caring for the children instead. Eventually, she worked as a solderer and as a retail store clerk, after which she took minor jobs caring for and massaging horses and tending their stalls. She did not earn significant amounts in any of these jobs.

The couple lived in an apartment until after Jessica was born. In October 1983 the couple purchased the marital home in Harmony. The $48,000 purchase price was paid with $20,000 the husband had saved over the years they were living in an apartment and with a $28,000 gift from the wife's father. The home was a three-bedroom, 1335-square-foot ranch that had the original kitchen, windows, and bathroom. Over time the windows leaked, as did the ceiling and other major improvements were necessary but deferred indefinitely.

In 1993 the husband began to operate Van Horn Sand & Gravel, "a little gravel pit," as a side business. He purchased a truck and hired an individual to drive it as he did not yet have a commercial driver's license (CDL). That business eventually folded and the husband sold his truck and equipment and returned to work with a former employer for a number of years.

In 1999 the husband re-established his own trucking business under the same name and obtained a CDL so that he could drive his own truck. He has run that business ever since. The husband's main client was A.B.E. Materials, for which he delivered loads in his truck. However, he was not guaranteed daily work for A.B.E. He has attempted to add other clients without success.

From 1993 to 1998, the couple's adjusted gross income, according to the tax returns, was as follows: $30,584 in 1993; $39,600 in 1994; $53,181 in 1995; $52,812 in 1996; $68,651 in 1997; and $55,979 in 1998. In 1999 when the husband's business began to operate again, the couple's adjusted gross income decreased to $13,361, including $33,534 in wages and numerous business losses. The husband's business had gross revenues of $52,871 and $6650 in depreciation expenses was taken. In 2000 adjusted gross income was $21,615 based on $13,219 in wages, $2309 in interest income, and approximately $5000 in unemployment compensation. The business grossed $79,846 and $22,383 was taken as depreciation expense.

The family took only three or four vacations during the marriage, including two to Florida and one to Virginia. The husband and the wife took no vacations themselves, although they did attend business functions in Virginia and Tennessee. The family ate out at fast-food restaurants occasionally; they did not exchange expensive birthday, Christmas or anniversary gifts; and the children did not attend week-long camps.*fn1 The couple did not go out socially. The family did not save any money, except they owned some bonds, which will be discussed below. By any account, their lifestyle was extremely modest.

The husband filed for divorce on November 21, 2001. The wife then obtained a restraining order and the husband was barred from the marital home from late November until January 2002. The husband claimed at trial that the wife left the marital home and moved in with a male friend. On the other hand, the wife claimed that she did not leave the marital home until September 11, 2002, when the husband changed the locks, a claim supported by the husband's admission that he did not change the locks until then. The parties agreed that Sarah would stay with the husband until after she had graduated from high school in June of 2003. After the wife left the marital home, she lived with a friend in Pennsylvania and stayed there until May 2003.

With such minimal assets and income, with such a modest lifestyle, and with two children emancipated and the third a junior in high school, the divorce should have been easy to resolve expeditiously. Unfortunately for all concerned, the divorce proceedings mushroomed out of control after the wife's father died on December 21, 2002. Although there was no will, the wife was subsequently determined to be the sole beneficiary of the estate and was appointed its administratrix. In May 2003 the wife moved into a home at 158 Ford Rift Road, Belvidere, that had been owned by her father. The final supplemental estate accounting, filed with the court on May 17, 2004, listed assets valued at $9,911,709.78 and taxes due of $3,552,769.00.*fn2

Numerous motions were filed in the divorce proceedings, both before and during the trial, which began in May 2004, by which time all three children had been emancipated. The trial lasted for an astounding forty days and concluded in April 2005. Most importantly, in November 2004 the Family Part judge presiding over the trial granted the wife's motion to dismiss the husband's claim for equitable distribution of the property she inherited from her father after the divorce complaint was filed.*fn3 The resolution of that issue did not help resolve the case and the trial continued. The evidence at trial is summarized below with respect to each of the issues on appeal.

The parties testified to the marital assets. The home had been assessed by Harmony Township in October 2002 at a value of $140,900. An appraisal done at the husband's request valued the home at $142,000 as of February 8, 2003. The wife's expert testified that he had appraised the home at $168,000 as of February 19, 2004. However, the expert admitted that he did not reduce the value of the house based on its state of disrepair, even though he conceded it required several repairs, including a new roof, furnace, fuse box and septic system.

The husband's October 28, 2003, CIS listed assets as the jointly owned marital residence, a checking account in his name with a $119 balance, and four vehicles, including a 2002 Monte Carlo valued at $22,000 and a 1993 Suburban valued at $5000. The other two vehicles had no value. The husband also listed approximately $8000 in stocks and bonds in his name. He included his business assets, which consisted of his trucks and approximately $20,000 in liabilities. The wife's February 19, 2004, CIS listed the marital home as a joint asset, and, while noting that she acquired assets through an inheritance from her father, did not list the value of them.

The couple's acquisition of certain assets was disputed. The husband claimed at trial that in September 1994 the wife cashed two checks on the joint checking account totaling slightly more than $11,000. He claimed that he was unaware that these checks were written until much later. He asserted that the wife gave that money to her father in 1997 in exchange for a property located at 36 Halfway House Road in Broadway. On cross-examination, the husband conceded that he could not remember if he gave his wife the authority to withdraw those funds from the joint account.

The wife admitted to cashing the checks, but claimed that she did not give them to her father in exchange for the Broadway property. She also claimed that her husband was aware that she had cashed these two checks. The wife further claimed that her father gave her the Broadway property in 1997. She did not move in 1997, despite having filed a divorce complaint that year (which was later withdrawn), because the house was in deplorable condition. Since she could not afford the taxes, she gave the property back to her father. Although the documentation regarding this transfer indicates that the wife bought the home for $10,000, then sold it back to her father for that same amount, the wife claimed that no money passed hands during ...


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