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Connell v. Connell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 30, 2008

CHERYL ANN CONNELL, PLAINTIFF-RESPONDENT,
v.
THOMAS CONNELL, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-425-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 19, 2008

Before Judges Stern and A. A. Rodríguez.

Cheryl Ann Connell (Wife) and Thomas Connell (Husband) were divorced on January 24, 2007, after twenty years of marriage. One son, emancipated as of September 2007, was born of the marriage. Prior to trial, on September 11, 2006, a consent order was entered setting pendente lite support. The order provided, in pertinent part:

The parties will liquidate the [Husband's] IRA and withhold sufficient monies to meet the associated tax obligation. The net monies shall be held in [Wife's counsel's] trust account. These monies shall be used to payoff the debt reflected in paragraph 10 of the proposed Property Settlement Agreement.

In keeping with the consent order, Husband's entire IRA was liquidated. The joint marital debt, most of which arose from Wife's unsuccessful skateboard business, was negotiated with creditors and paid off at a discounted rate. Following the trial, the judge provided the following dispositions in the final judgment of divorce (JOD):

Equitable Distribution

a. Assets

[Husband's] Retirement Accounts

1. [Husband] currently has a Fidelity Retirement Savings account through his former employer, Wacker Corp. The approximate value of that account as of the date of the Complaint for Divorce was $83,000.00. In 2004 [Husband] withdrew $30,000.00 of which a small portion has been accounted for. [Wife] shall receive fifty percent of the value of this account prior to the $30,000.00 being withdrawn; $41,500.00.

After the filing of the Complaint for Divorce, [Husband] removed monies from this account. He paid for the funeral of his father, as well as his own legal expenses. The current balance of the account is approximately $63,000.00. If a qualified domestic relations order is necessary, the parties are to share the cost of same equally.

2. Local 825 Annuity Plan To be divided equally via qualified domestic relations order; [Husband] to pay cost of qualified domestic relations order.

Personal Property Each party to retain any item currently in his or her possession.

Automobiles and Inventory [Husband] is to sell the automobiles in his possession. [Wife] is to sell the remainder of the inventory in her possession. The parties are to split the value obtained from the sale of these various items to pay off the marital debts.

b. Debts [Wife] has debts associated with a business, Eccel Board Supply, which is now defunct. These are marital debts and should be treated as such. [Husband] shall pay one-half of these debts. The debts shall be paid in full at the closing of the sale of the marital residence if not paid sooner.

Tax Exemption The parties shall alternate claiming the parties' son as a tax exemption. [Wife] shall claim the parties' son in even years, and [Husband] shall claim the parties' son in odd years.

Husband moved post-judgment for "clarification and reconsideration" of the terms of the JOD. The motion requested the following relief:

1. Authorizing [Husband] to pay the tax liability arising from the liquidation of the 401K monies pursuant to the consent order dated September 11, 2006.

2. Requiring [Wife] to sell the Corvette subject to equitable distribution.

3. Granting [Husband] an opportunity to retrieve the balance of his personal property from the marital premises including but not limited to his Husqvarna Motorcycle.

4. Requiring the parties to use the bluebook value of their respective vehicles as of the date the [JOD] was entered for purposes of establishing a credit to offset the monies received from the sale of the marital premises in lieu of selling the vehicles.

5. Substituting the pension/annuity which was acquired during the marriage for purposes of equitable distribution with the Local 825 annuity Plan referenced in the [JOD].

6. Prohibiting [Wife] from taking the deductions related to the marital premises for tax year 2006 in light of her previous tax deductions without a corresponding benefit.

7. Consistent with the [JOD], requiring [Wife] to be responsible for half the tax liability associated with the reduction in the credit card debt.

The judge denied the motion for the following reasons, as stated in the order:

[Husband] is asking this Court to reconsider a final judgment of divorce from January 24, 2007, where an order was made based upon all of the facts, evidence, and testimony that was presented at trial. The Court is not satisfied that these identical issues should be revisited and will therefore deny [Husband's] motion for clarification and reconsideration.

Husband appeals, contending that the judge "failed to find the facts and state its conclusions of law with regard to the motion and cross-motion . . . as required by R. 1:7-4." We disagree.

Our review of the JOD does not persuade us that the issues addressed by the judge do need clarification. In rendering the JOD, the judge complied with the requirements of Rule 1:7-4(a). See Franzoni v. Franzoni, 60 N.J. Super. 519, 522 (App. Div. 1960) (the trial judge "need only make brief, definite, pertinent findings and conclusions upon the contested matters . . . ."). The issues raised in the post-judgment motion are the same as those addressed in the JOD. Therefore, it was unnecessary to find the facts again. With two exceptions, we affirm the denial of the motion for reconsideration.

Point 5 of the motion sought substitution of Husband's "pension/annuity which was acquired during the marriage" for the Local 825 annuity plan. We note that the JOD provides that Husband's annuity with Local 825 was to be equally allocated.

However, Husband alleges that he acquired this particular annuity after the complaint for divorce was filed on March 21, 2005. Husband did not become associated with Local 825 until on or about July 10, 2005. We note that the JOD does not mention a pension/annuity acquired during the marriage, although it mentions a "Retirement Savings account through [Husband's] former employer, Wacker Corp." We have not been provided with the trial transcript. Therefore, this matter is remanded to the trial court for clarification of whether the "Retirement Savings account" is the pension/annuity acquired during the marriage and whether the Local 825 is, in fact, a marital asset.

We also remand for a determination of each party's share of the tax obligation resulting from the early liquidation of the IRA. Husband alleges that this tax debt was set at $18,665. Wife does not dispute this amount. However, the JOD does not indicate what percentage of the tax obligation shall be paid by each party. We also remand for a determination by the judge of this percentage.

Finally, we address Husband's allegation that the consent order directing that his IRA be liquidated operated as an equitable distribution of that asset. From the express language of the order, we conclude that it does not. The liquidation of the IRA simply provided a fund to reduce the marital debt early.

Both parties benefited from the liquidation. However, such liquidation did not resolve each party's equitable share of the IRA account. The JOD effected that distribution.

Affirmed in part and remanded in part. The remand shall be completed no later than September 15, 2008. We do not retain jurisdiction.

20080730

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