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Theiller v. Theiller

December 30, 2008

LISA THEILLER, PLAINTIFF-RESPONDENT,
v.
JAMES T. THEILLER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, FM-19-143-05.

The opinion of the court was delivered by: Per Curium

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 16, 2008

Before Judges Wefing, Parker, and R. B. Coleman.

Defendant James T. Theiller appeals from a final judgment of divorce dated September 22, 2006, from plaintiff Lisa Theiller, now known as Lisa Killion. Plaintiff filed a complaint for divorce based on extreme cruelty on September 27, 2004. After a stream of motions to enforce litigants' rights the case culminated in a highly acrimonious and protracted trial over seven days between January 30 and April 18, 2006.

The final judgment of divorce, executed on September 22, 2006, provided: (1) the parties would share joint legal custody of the four children, with plaintiff having physical custody of the three youngest and defendant having physical custody of the oldest child; (2) defendant was to pay child support in the amount of $314 per week until July 1, 2006, based on defendant's income of $58,079 and plaintiff's imputed income of $35,000, and after July 1, 2006, the oldest child would be deemed emancipated and defendant was to pay child support in the amount of $282 per week for the three youngest children; (3) plaintiff was to retain the petting zoo business, including the animals and paraphernalia, which was valued at $25,000; (4) the marital residence was to be listed for sale with the proceeds split equally; (5) until the residence could be sold, the parties were to share equal responsibility for taxes and homeowner's insurance and plaintiff was to be responsible for household expenses; (6) defendant was to pay plaintiff limited-duration non-taxable alimony in the amount of $150 per week for five years from May 15, 2006; (7) defendant was to pay plaintiff $6,800 from his retirement plan; (8) defendant was to pay $3,500 in counsel fees as ordered November 14, 2004, and $10,000 in counsel fees from the net proceeds of the sale of the marital property; and (9) each party was permitted to claim two children as dependants for tax purposes. Defendant was also ordered to continue medical insurance coverage for the children.

By separate order dated September 22, 2006, and filed October 4, 2006, defendant's motion for reconsideration of the alimony and child support awards and to clarify equitable distribution was denied, as was plaintiff's cross-motion for additional support denied for insufficient proof. Defendant filed a notice of appeal on November 22, 2006. We affirm the award of alimony and counsel fees, but we remand for a more definitive statement of the basis for the child support calculation.

Defendant and plaintiff were married on April 12, 1997. They have four children ranging from eight to seventeen years of age. At the time of trial, defendant was employed by D&N Auto Body and earned between $55,000 to $63,000 a year. Plaintiff worked part-time as a school bus driver, earning about $15,000 a year. She also bred animals and ran a petting zoo business on the marital property which generated upwards of $20,000 per year.

Defendant raises the following issues on appeal:

I. THE COURT ERRED IN ITS RULING BASED ON PLAINTIFF'S CREDIBILITY AND/OR FAILURE TO DISCLOSE ASSETS. (defendant's point I. and II.)

II. THE COURT ERRED IN ITS EQUITABLE DISTRIBUTION AWARD. (defendant's point III.)

III. THE COURT ERRED IN ITS CALCULATION OF CHILD SUPPORT AND ALIMONY. (defendant's point IV.)

IV. THE COURT ERRED IN AWARDING COUNSEL FEES TO PLAINTIFF. (defendant's point V.)

We discuss each in turn.

I.

Defendant contends that he was denied a fair trial due to plaintiff's refusal to honestly and fairly disclose marital assets, and that plaintiff's lack of truthfulness to both the trial court and defense counsel led to an inequitable result. We find defendant's argument unpersuasive on this point.

Generally, we defer to the trial judge's credibility determinations because of his or her ability to see and observe witnesses and evaluate their veracity. Pascale v. Pascale, 113 N.J. 20, 33 (1988). Absent a decision that is wholly unsupported by competent, relevant, and reasonably credible evidence in the record, we will affirm a trial court's findings on credibility. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Here, we find no abuse of discretion in the trial judge's determination that the credibility of both parties to this matrimonial action was questionable. Hence, we reject the claim by defendant that the court committed reversible error by unduly crediting plaintiff's proofs.

As to plaintiff's failure to disclose assets. there is no evidence in the record that defendant deposed plaintiff, nor did he seek relief from the court regarding plaintiff's alleged obstruction of discovery. Under such circumstances, defendant's overall ...


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