October 23, 2008
IBELISSE DOMINGUEZ, PLAINTIFF-APPELLANT,
JUAN PABLO MUNOZ, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-751-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Gilroy and Chambers.
In this matrimonial case, plaintiff Ibelisse Dominguez appeals from the Judgment dated August 16, 2007, that, among other matters, dismissed her complaint for divorce with prejudice, registered in this State the prior final judgment of divorce she had already obtained in the Dominican Republic, made certain provisions for equitable distribution of assets in New Jersey, and awarded her child support. We remand solely for the purpose of allowing the trial court to either reconsider or provide a more explicit explanation of the child support award. The judgment is affirmed in all other respects.
Plaintiff and defendant Juan Pablo Munoz, both university educated residents of the Dominican Republic, were married in that country in December 1990. A child was born to the marriage in November 1991. The parties continued to reside together in the Dominican Republic until June 1993, when defendant came to the United States to live. Defendant testified that plaintiff did not want him to move to the United States and that she remained in the Dominican Republic with their child. Plaintiff obtained a divorce from defendant in the Dominican Republic in August 1993. The next year, both parties married other individuals. Plaintiff divorced her second husband in 1998, and defendant divorced his second wife in 2000. Plaintiff and defendant remarried in the Dominican Republic on December 30, 2000, and then continued to live together in the United States until their separation in 2003.
According to plaintiff, the first divorce and these second marriages were shams. She testified that she and defendant divorced and married others in order to obtain green cards. Plaintiff maintains that she came to the United States in 1993, and that she has lived with defendant since then. However, at another point in her testimony she said that she first came to the United States in 1995.
Defendant denied that the divorce and second marriages were shams. He testified that plaintiff moved to the United States in 1995, but she did not reside with him at that time. Defendant maintains that he reconciled with plaintiff in 1997, and they then began living together.
Due to marital difficulties, plaintiff and the parties' son returned to the Dominican Republic to live in July 2003. Plaintiff came back to the United States in November 2003, in an attempt to resolve their marital difficulties, but that effort was unsuccessful. Plaintiff returned to the Dominican Republic where her son was attending school. She filed for divorce in the Dominican Republic in January 2004, and a judgment of divorce was entered in that country on April 22, 2004. Plaintiff was awarded custody of the parties' child, and defendant was ordered to pay child support in a specified amount.
While the divorce action was pending in the Dominican Republic, plaintiff also filed in that country a civil action against defendant for the division of assets. The record is unclear on when this Dominican Republic civil action was dismissed, but one document in the record indicates it was still pending in September 2005. On December 2, 2005, defendant filed a Division of Property Demand in the Dominican Republic against plaintiff seeking division, liquidation and sale of the house and its contents owned by the parties jointly in that country. This proceeding was ongoing at the time of the trial with both parties represented by counsel in the Dominican Republic litigation.
Both parties agree that they own a home in the Dominican Republic. Defendant also acknowledged that he owns two lots there, but he acquired them before this marriage to plaintiff. While plaintiff contended that defendant also owned a beauty parlor and a second house in the Dominican Republic, he denied owning such a business or any other property there.
Despite having already obtained a divorce from the defendant in the Dominican Republic on April 22, 2004, plaintiff commenced this divorce action in New Jersey on October 1, 2004, seeking a divorce, child custody, child support and equitable distribution. When she filed this divorce action, her division of assets litigation was still pending in the Dominican Republic. By this time, it appears that plaintiff had returned to the United States to live, although the child remained in the Dominican Republic. In his answer and counterclaim, defendant sought dismissal of plaintiff's action and equitable distribution of the parties' property in New Jersey.
An interlocutory order entered in this litigation on April 22, 2005, required the defendant to pay $500 a month in child support so long as the child was in the Dominican Republic; if the child came to the United States, the child support payment would be $191 per week. Upon motion by defendant, the trial court dismissed plaintiff's New Jersey divorce action under principles of comity. On appeal, we summarily reversed.
Thereafter, the parties were able to resolve certain issues amicably. They agreed to joint legal custody of the child with plaintiff designated the parent of primary residence and defendant designated the parent of alternative residence with parenting time. They also agreed that the marital residence in New Jersey would be sold and the net proceeds divided equally between them.
After a five day trial, the trial court on August 16, 2007, issued a fifty-six page decision and entered a judgment, dismissing plaintiff's claim for divorce and ordering that the divorce obtained in the Dominican Republic be registered and filed in New Jersey. On the issue of child support and custody, the judgment memorialized the parties' agreement regarding custody and parenting time. Further, the trial court imputed gross annual income of $52,000 to each parent and calculated defendant's child support obligation to be $130 per week. On the issue of equitable distribution, the judgment memorialized the agreement to divide the net proceeds from the sale of the marital home in New Jersey and also provided for an equal division of the contents of the marital home. It also distributed the other marital property located in New Jersey, namely, the Toyota 2001 SUV 4Runner and defendant's business, known as Professional Builder Painting. Plaintiff was given an award representing ten percent of the value of these two assets. The assets owned by the parties in the Dominican Republic were not addressed in this award.
On appeal plaintiff raises the following issues:
The judgment below must be reversed because the trial court's findings of fact are not supported by the record or the evidence adduced during the non-jury trial and amounted to an abuse of discretion.
Even a cursory review of the trial records shows that the trial judge failed to make the appropriate balancing act while making a credibility determination and simply ignored the gaping credibility chasm in defendant's case, thus undermining its own findings of facts and conclusions of law.
Plaintiff's divorce action in the Dominican Republic and even the resultant default judgment of divorce did not foreclose plaintiff from renewing her divorce action in this state.
Fairness and the ends of justice require that this court reverse the trial court's unsupported reliance on the doctrine of collateral estoppel as a basis for surrendering its superior jurisdiction.
The trial court's failure to articulate a rational basis for imputing a weekly income of $1,000.00 to the plaintiff while recomputing and reducing child support obligations owed by the defendant constitutes reversible error.
The trial court's unexplained refusal to distribute the parties' assets consistent with the written "spousal gift" agreement between the parties constitutes reversible error.
The trial court's distribution of the parties' assets under the specific circumstances of this case was simply inequitable, unconscionable and shocks the conscience and therefore warrants a reversal.
Plaintiff seeks that if any of the issues is remanded, the matter should be heard by another judge.
We note at the outset that the findings of the trial court are binding on appeal provided they are supported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). An appellate court may not disturb the finding of fact of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). The findings of a family court are entitled to special deference in light of its exclusive jurisdiction and special expertise in family matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998).
We reject plaintiff's contentions that the trial court erred in its findings of credibility. "Because a trial court'"hears the case, sees and observes the witnesses, [and] hears them testify," it has a better perspective than a reviewing court in evaluating the veracity of witnesses.'" Id. at 412 (alteration in original) (quoting Pascale v. Pascale, 113 N.J. 20, 33 (1988)). We find substantial evidence in the record to support the trial judge's credibility findings. In regard to his finding that defendant rather than plaintiff was the more credible witness, we note that plaintiff admitted she participated in a sham divorce and a sham marriage in order to obtain a green card and that she reported only one half of her earned income on her federal tax returns. Thus, by her own testimony, plaintiff demonstrated that she was not truthful or honest.
The trial judge correctly denied plaintiff's attempt to obtain a second judgment of divorce in New Jersey after she had already obtained a judgment of divorce in the Dominican Republic. Divorces obtained in foreign countries will be recognized in New Jersey so long as the foreign court had jurisdiction, and its judgment does not offend our public policy. Fantony v. Fantony, 21 N.J. 525, 533 (1956). Further, generally, parties may not attack a divorce judgment that they themselves obtained. See Kazin v. Kazin, 81 N.J. 85, 94-95 (1979). Under principles of comity, the trial court properly did not attempt to divide the assets owned by the parties in the Dominican Republic, since litigation regarding their jointly owned property was ongoing in that county with both parties participating and being represented by counsel.
In her effort to defeat principles of comity, plaintiff maintained that "because of extensive corruption in the courts of the Dominican Republic, defendant with his resources is able to bribe some court clerks and employees in order to keep the case alive and to file documents purporting them to be mine." The trial court found no proof of any such corruption other than plaintiff's unsupported allegation, and this finding is supported by the record.
Plaintiff also seeks a recalculation of the child support payment, contending that the imputation of $1,000 a week in income to her was unfair and inequitable. The court may impute income to a parent who is voluntarily unemployed or underemployed without just cause. Caplan v. Caplan, 182 N.J. 250, 268 (2005); see Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2324-25 (2009) (guidelines for imputation of income). The trial court found that both parents had the ability to earn $1,000 a week, and calculated defendant's child support obligation based on that sum.
We recognize the inherent difficulty in determining the income of a litigant such as plaintiff who was not a credible witness, who by her own admission only reported half of her income on her federal tax returns, and who was paid in cash for many jobs. In such a situation, the amount of income she has earned in the past cannot be determined with precision. Nevertheless, the trial court's explanation of this aspect of its decision was so brief that we are unable to evaluate the factual basis for that determination. The lack of factual findings that prevent the appellate court from determining whether a trial court's decision "is supported by substantial credible proof on the whole record," requires a remand for further findings. Monte v. Monte, 212 N.J. Super. 557, 565, 568-69 (App. Div. 1986). Accordingly, we remand on this limited issue so that the trial court may either reconsider the child support calculations or provide a further explanation of its basis for imputing income of $1,000 per week to plaintiff. On remand the matter should be heard by the same trial judge who rendered this decision, unless he is unable to do so.
After a careful review of the record, we find that the balance of plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We remand for a further explanation or reevaluation of the child support award and affirm the balance of the trial court's decision for substantially the reasons stated by the trial court in its fifty-six page written opinion and for the reasons noted above.
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