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Jean v. Barthelus

September 9, 2008

JEANNETTE JEAN, PLAINTIFF-RESPONDENT,
v.
JOSEPH BARTHELUS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6206-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 27, 2008

Before Judges A. A. Rodríguez and Lihotz.

Defendant Joseph Barthelus appeals from a May 9, 2007 judgment in favor of plaintiff Jeannette Jean in the amount of $15,249, entered following a two-day bench trial. Defendant maintains the trial court failed to engage in the requisite factfinding and erred in its legal conclusions. We agree. Accordingly, we reverse and remand for a new trial.

For approximately one year, plaintiff and defendant resided together and were engaged in a romantic relationship. Thereafter, the parties discussed the purchase of realty. Defendant added plaintiff's name to his existing savings account. Then, plaintiff gave defendant funds, which he deposited into the joint savings account.

The parties agree plaintiff provided two checks for $5,648.69 and $21,209.71 and that she loaned defendant $3,500 to pay his outstanding tax bill. Plaintiff produced a third check in the amount of $5,000, which defendant denied he received. This check was deposited into defendant's checking account, not the joint savings account. Also, it is undisputed that plaintiff withdrew $10,000 from the joint savings account to pay her son's college tuition and $1,000 was expended as a deposit to purchase a home.

Defendant testified the savings account held a balance of $12,900 when, at plaintiff's request, he added her name. Defendant explained plaintiff desired to purchase a home and was using his savings account to help her qualify for a mortgage. Regarding the monies plaintiff deposited, defendant argued he was due offsets for monies expended on plaintiff's behalf. He spent approximately $10,000 of his funds to pay plaintiff's rent and provided care for her son for almost a year. At trial, defendant produced copies of his checks showing the rental payments. Also, defendant asserted he spent: $5,000 for plaintiff's efforts to purchase a taxi license; sent plaintiff $1,000 while she was visiting Haiti; and, on plaintiff's authorization, gave plaintiff's friend $500 and her sister $611. Thus, he maintains he owes plaintiff nothing.

Plaintiff agreed defendant wrote her rent checks, however, she asserted she gave defendant monthly cash payments for the obligation. Specifically, plaintiff testified her tenant paid $240 per month and she provided $300 in cash to satisfy the $540 monthly rental. Plaintiff did not directly refute the sums expended for the taxi medallion or advanced to her friend and sister.

In a brief written memorandum accompanying the judgment, the trial judge determined plaintiff gave defendant $31,249.00*fn1

to deposit into the joint bank account and plaintiff withdrew $10,000. She rejected plaintiff's assertion of cash transfers to satisfy the rent, and credited defendant with $5,000, approximately half of the sum he claimed.

The trial judge concluded plaintiff failed "to prove by a preponderance of the credible, objective evidence the existence of a contract, and the terms of that contract." Also, the trial judge concluded plaintiff did prove that she "had not consented to the withdrawal of any funds from the account and did not authorize any expenditures made with money from the account, with the exception of $1,000." Thus, a judgment in favor of plaintiff was entered in the amount of $15,249.

On appeal, defendant challenges the trial court's factfinding. Also, defendant argues plaintiff failed to prove the necessary elements for fraud to sustain a judgment against defendant.

Our scope of review of the findings of fact made in a non-jury matter is limited. Berberian v. Lynn, 355 N.J. Super. 210, 216 (App. Div. 2002), aff'd as modified, 179 N.J. 290 (2004). We defer to factual findings "when the evidence is largely testimonial and involves questions of credibility," Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)), as credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956). However, the factual findings by a trial judge, including credibility determinations, must be supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The trial court's conclusions of law, however, are not ...


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