August 29, 2008
PETER N. LECLAIR, PLAINTIFF-RESPONDENT,
ALIA KHAIRZADA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Family Part, FM-02-155-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 6, 2008
Before Judges R. B. Coleman and Sabatino.
Defendant Alia Khairzada appeals from an August 10, 2007 Final Judgment of Divorce which incorporated the trial court's August 9, 2007 written decision. Defendant contends the trial court erred by ruling that real property defendant purchased during the marriage with her own funds was subject to equitable distribution. She also contends the court failed to address whether plaintiff is obligated to repay defendant an alleged loan of $1,000. We affirm the equitable distribution and remand for findings of fact in respect to the alleged loan.
Plaintiff Peter N. LeClair and defendant married on August 8, 2001. In April 2002, the couple purchased a condominium at 18 Boulder Run Road, Paterson, for $233,900. Defendant provided all the funds for the down payment on the home, and she executed a first mortgage for the balance of the purchase price. Title to the property was taken in defendant's name alone. In early 2004, defendant refinanced the property to reduce the interest rate, and, soon thereafter, she took a home equity loan of $25,000.
Plaintiff moved out of the condominium in July 2005, and a year later, on July 14, 2006, he filed a complaint for divorce, citing acts of extreme cruelty beginning on or about August 2002. The matter proceeded to trial on July 2, 3, 9, 10, 11 and 12, 2007 before Family Part Judge George W. Parsons. At the conclusion of the trial, the court reserved judgment. Thereafter, on August 9, 2007, the court issued its written opinion, detailing the basis for the equitable distribution of the marital estate.
The court noted that as of the time of the trial the condominium had a value of $355,000.*fn1 It, therefore, reasoned "[w]ith a current value of approximately $355,000 and a total mortgage debt of approximately $248,000, there is $107,000 in equity remaining in the condo. Of this equity, the [c]court finds that Ms. Khairzada should first be awarded the $20,932.27 she initially paid toward the downpayment and closing costs."*fn2
Furthermore, the trial court "decided to credit back to Ms. Khairzada half of all the monies she paid toward the condo over the past two years[,]" the time after plaintiff moved out of the residence. The remaining adjusted equity was divided equally between the couple. Hence, defendant was awarded a total distribution attributable to the value of the home of $77,309.84, and plaintiff was awarded the sum of $29,690.17.
Defendant filed her notice of appeal of this decision on August 31, 2007, disputing the court's equitable distribution award. Defendant argues the following points on appeal:
POINT I: THE CONDOMINIUM UNIT IS NOT SUBJECT TO EQUITABLE DISTRIBUTION BECAUSE THE PROPERTY WAS PURCHASED WITH SEGREGATED ASSETS ACQUIRED DURING THE MARRIAGE, AND DEFENDANT DID NOT INTEND TO GIVE PLAINTIFF AN EQUITABLE INTEREST IN THE PROPERTY. ASSUMING ARGUENDO THAT THE COURT DETERMINES THAT THE PLAINTIFF IS ENTITLED TO ANY AWARD OF EQUITABLE DISTRIBUTION, IT SHOULD BE A MINIMAL AWARD AS THE DEFENDANT ACTUALLY CONTRIBUTED VIRTUALLY NOTHING TO THE ACQUISITION OR MAINTENANCE OF THE PROPERTY.
POINT II: THE COURT BELOW SHOULD HAVE ORDERED THE PLAINTIFF TO REPAY THE $1,000.00 LOAN OR CREDITED SAME TO ANY AWARD OF EQUITABLE DISTRIBUTION TO THE PLAINTIFF.
After carefully reviewing the trial testimony and relevant law, we affirm in part and remand in part.
Our review of the Family Part division of marital assets is narrow. Valentino v. Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998).
We decide whether the trial judge mistakenly exercised its broad authority to divide the parties' property and whether the result was "reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence." [Ibid. (quoting Wadlow v. Wadlow, 200 N.J. Super. 372, 377 (App. Div. 1985)).]
To determine an equitable distribution, the trial court should follow the three-step process derived in Rothman v. Rothman, 65 N.J. 219, 232 (1974). "Assuming that some allocation is to be made, he must first decide what specific property of each spouse is eligible for distribution. Secondly, he must determine its value for purposes of such distribution. Thirdly, he must decide how such allocation can most equitably be made." Ibid. In the last step of the analysis, the court should be guided by the factors set forth in N.J.S.A. 2A:34-23.1. The written opinion of the trial court in this case clearly shows an adherence to this procedure.
Nevertheless, defendant challenges the court's decision to subject the condominium to equitable distribution. The party that asserts an asset's immunity from equitable distribution bears the burden of establishing the immunity. Painter v. Painter, 65 N.J. 196, 214 (1974); Sculler v. Sculler, 348 N.J. Super. 374, 380 (Ch. Div. 2001). The condominium in this matter was purchased in April 2002, and the marriage took place in August 2001. While it is true that defendant solely bore the cost of the down payment and that the title contained her name, and not her husband's name, that is not dispositive. In New Jersey, all property acquired during the marriage is subject to equitable distribution:
the state of title is of no significance when dividing marital assets. A spouse, for instance, does not acquire a vested right to property merely because an asset is put in sole name of that spouse or in their joint names. Perkins v. Perkins, 159 N.J. Super. 243 (App. Div. 1978). All assets acquired during the marriage in which either spouse has an interest, regardless of how acquired or what the state of title may be, are subject to equitable distribution. [D'Arc v. D'Arc, 164 N.J. Super. 226, 242 (Ch. Div. 1978), aff'd in part, rev'd in part, 175 N.J. Super. 598 (App. Div. 1980), certif. denied, 85 N.J. 487 (1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2049, 68 L.Ed. 2d 350 (1981); see also Genovese v. Genovese, 392 N.J. Super. 215, 226 (App. Div. 2007) (declaring that "[m]arital assets acquired in the course of that joint undertaking fairly should be included in the marital estate subject to equitable distribution.").]
Therefore, the cases defendant cites to support her point*fn3 do not control because those cases each involve a dispute about assets acquired prior to the marriage.
Judge Parsons issued a sound and well-articulated written decision which analyzed each applicable factor of N.J.S.A. 2A:34-23.1. The court utilized the "present value of the property", as provided by the appraisal admitted into evidence at trial, in calculating the equitable distribution. See N.J.S.A. 2A:34-23.1(k). He made adjustments to reimburse defendant fully for the initial deposit and to account for the presumed increase in value after plaintiff left the marital residence. Therefore, we find that the trial court's decision was fair, rational and supported by credible evidence on the record. Defendant failed to carry her burden of proving the condominium's immunity for equitable distribution.
Defendant next contends that in March 2005, she loaned plaintiff $1,000 by way of personal check from her personal account, which he did not repay. For that reason, defendant seeks an adjustment of the equitable distribution award in her favor. The court, in its written opinion and final judgment of divorce, failed to address defendant's contention regarding the $1,000 loan. We believe that this was a necessary finding of fact that should have been included in the August 9, 2007 opinion as mandated by Rule 1:7-4. Therefore, we must remand the matter solely so that the trial court may place on the record its findings regarding the alleged $1,000 loan. Subject to such amendment, if any, as may be necessitated by those findings, the trial court's final judgment of divorce is affirmed.
Affirmed in part, remanded in part. We do not retain jurisdiction.