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LeClair v. Khairzada

August 29, 2008

PETER N. LECLAIR, PLAINTIFF-RESPONDENT,
v.
ALIA KHAIRZADA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Family Part, FM-02-155-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...


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