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Pacifico v. Pacifico

February 24, 2009

GINGER PACIFICO, (N/K/A GINGER GASPARI), PLAINTIFF-RESPONDENT,
v.
JAMES PAUL PACIFICO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FM-12-330-96.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 22, 2009

Before Judges Fisher and Baxter.

This appeal requires us to decide whether the trial judge was correct when he concluded that plaintiff Ginger Gaspari, formerly Ginger Pacifico, should have the option of purchasing her ex-husband James Pacifico's one-half interest in the former marital home based on its value in 1996, when the parties divorced, rather than at its value at the time of the buy-out.

Although this issue seems relatively straightforward, it has been the subject of three different proceedings in the Family Part, two prior appeals before this court and an opinion by the Supreme Court. The Court reversed our affirmance of the trial judge's conclusion that the 1996 value, rather than the value in 2003, when James demanded the sale of the former marital home, should be the governing price for purposes of Ginger's buy-out of his interest. Pacifico v. Pacifico, 190 N.J. 258, 268-70 (2007). The Court remanded for a new hearing in the Family Part. Id. at 268-69.

Following that remand, a two-day trial was conducted on May 22 and November 14, 2007. After considering the testimony of the parties as well as the testimony of the attorney who represented James at the time the parties' Property Settlement Agreement (PSA) was drafted, the judge issued a written opinion on January 29, 2008, concluding that the 1996 value, rather than the value at the time of the triggering event in 2003, should govern. We conclude that the trial judge's opinion omits any evaluation of the parties' credibility, ignores Ginger's failure to call her former matrimonial attorney to refute the testimony of James's attorney regarding the parties' intent, and accepts Ginger's contention--that she relinquished her right to all but a small sum of alimony in exchange for the right to use the 1996 valuation--even though her claim of such an exchange was not asserted until four years into these contentious and protracted proceedings. For these reasons and for other reasons we discuss later in this opinion, we conclude that, at best, the evidence was in equipoise. Therefore, Ginger's proofs were inadequate to overcome the presumption established by the Court that "current market value as of the time of the triggering event" should govern. Id. at 269. We reverse.

I.

These are the most relevant facts. The parties were married in 1978 and divorced in 1997. At the time of the divorce, their two sons lived with Ginger in the marital home. The December 2, 1996 PSA, which was incorporated into the final judgment of divorce, obligated James to pay Ginger child support of $435 per week and permanent alimony of $100 per week. Ginger, who was unemployed, was to remain in the marital home with the children and was responsible for payment of the mortgage, property taxes, and homeowners' insurance, to be paid out of the support provided by James.

The PSA further stated that the parties would hold the marital premises as "joint tenants with the right of tenants with right of survivorship" until it was sold, and that:

[t]he marital residence shall be sold upon the first happening of any of the following events:

1) Youngest child's attainment of the age of 19;

Upon the first happening of any of the foregoing events, the Wife shall have the first option to purchase the interest of the Husband. Should the Wife not choose to exercise this option, the Husband shall then have the same option. If neither party desires to purchase the other's interest the Real Estate shall be listed with a licensed Real Estate broker to be sold and the Real Estate shall be sold. Upon payment from the proceeds of the sale of the house of the outstanding mortgage, Real Estate commissions, transfer tax, recording fees, reasonable attorney's fees, the Wife shall be responsible for all outstanding property taxes or entitled for[sic] a credit of overpayment. . . . Any debt/lien attaching to the property as a result of any action or inaction by Husband or Wife shall be deducted from that party's portion of the proceeds.

When the younger son became emancipated, James filed a post-judgment motion to compel the listing and sale of the property. In her cross-motion, Ginger sought to buy out James' interest for one-half of the $167,000 value that had been established by a broker's market analysis in 1996. The motion judge, who is not the same judge who issued the order that is the subject of this appeal, ruled in Ginger's favor after reviewing the parties' certifications. He did not conduct a plenary hearing. We reversed and remanded for a hearing. Pacifico v. Pacifico, No. A-5880-02 (App. Div. August 3, 2004).

At the ensuing December 2004 hearing on remand, only James and Ginger testified. James maintained that the 1996 market valuation was obtained to establish the value of the asset because he contemplated selling it at that time. Ultimately, he chose not to do so and he remained a co-owner of the house while Ginger and their sons lived there. Furthermore, James testified that the parties never agreed to freeze Ginger's buy-out at the 1996 figure, and she made no concessions that would entitle her to such a result. Rather, the agreement was to sell the house at market value when one of the triggering events specified in the PSA occurred.

Ginger testified that the parties agreed that she could purchase the house at the 1996 valuation upon the emancipation of the parties' younger son. She explained that, in exchange for that favorable valuation, she gave James the tax and mortgage interest deductions. She also pointed to a draft of the agreement that referenced the 1996 value. At the conclusion of the hearing, the judge ruled in her favor. We affirmed. Pacifico v. Pacifico, No. A-3279-04 (App. Div. June 21, 2006).

As we have discussed, the Court reversed our affirmance of the Family Part's determination that the 1996 value should be applied, and remanded to the trial judge "to evaluate the evidence that was previously adduced at the hearing, this time, under the standards to which [the Court] made reference." Pacifico, supra, 190 N.J. at 268-69. The standards provided considerable guidance to the Family Part for remand proceedings. The Court directed the Family Part to evaluate the parties' credibility regarding their intentions at the time of the drafting of the PSA, which the Court characterized as "a pivotal factor on remand[.]" Id. at 269. The Court also directed the trial judge to "engage in a close, textual analysis of the various drafts of the PSA" to "aid in that determination." Ibid.

The Court issued another instruction: Ginger must bear the burden of proving that her purchase of James's interest in the marital home should be at the 1996 value. Ibid. The Court observed that "[i]f Ginger satisfies her burden, she is entitled to relief. If she does ...


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