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Marchev v. Marchev


March 12, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-0855-05.

Per curiam.


Argued October 15, 2008

Before Judges Fuentes, Gilroy and Chambers.

In this intensely contested matrimonial case, defendant Michele Marchev (nee Power) appeals from certain aspects of the final Judgment of Divorce (JOD) entered by the Family Part dissolving the marriage between her and plaintiff Fred Marchev. Specifically, defendant argues that the trial court erred in denying her requests: (1) to be the primary residential parent of the parties' two minor children; (2) to remove the children to Ireland; (3) for alimony; (4) for weekly child support in a specified amount; (5) to distribute the equity in the marital home on an equal basis; (6) for an interest in plaintiff's stock account; and (7) for an award of counsel fees.

The parties presented their respective positions in the course of a six-day trial that commenced on March 28, 2006, and ended August 16, 2006. Judge Cassidy addressed and disposed of all the issues raised by the parties in a memorandum of opinion dated June 29, 2007. After reviewing the record, and in light of prevailing legal standards, we affirm substantially for the reasons expressed by Judge Cassidy.

We gather the following facts from the evidence presented at the trial.

Defendant was born and raised in Ireland. She met plaintiff in the summer of 1994, and began dating in 1996. They decided to marry after defendant became pregnant in March, 2001 with their first child, a boy identified here as "A.J." Although their wedding ceremony took place in Ireland, they lived and raised the children in New Jersey. Defendant contends that plaintiff agreed that she could return to live in Ireland if she was unhappy living in the United States. They both held jobs at Schering-Plough; defendant left her employment in November, 2001, four weeks before A.J.'s anticipated birth.

A.J. was born on December 15, 2001. Who should assume the role of the child's primary caretaker soon became a point of contention. According to plaintiff, although this question was not directly discussed, taking care of A.J. made him nervous. Defendant contends that plaintiff wanted her to stay home with A.J. rather than placing him in daycare. Plaintiff disputed this. According to plaintiff, it was both "nice" to have the additional income, and "fair" for defendant to return to work. Defendant returned to work on a part-time basis for five months before transitioning back to full-time in August, 2002. Defendant's mother cared for A.J. without compensation during the time both parents were at work. Defendant also contends that her mother was the one who provided primary care for A.J.

In September 2003, the parties purchased their marital home in Springfield, New Jersey. They paid a five percent down payment of $14,000, and obtained a $266,000 mortgage for the balance. They also secured a $42,000 home equity loan, leaving very little equity in the home.*fn1

Before buying the house, defendant testified that plaintiff told her that he would sell stocks to provide the funds for a down payment. When the time came, however, "he refused to so," forcing her to use her pre-marital savings. Defendant makes a similar allegation with respect to the cost of home repairs. She claimed that plaintiff refused to sell stocks to pay for needed repairs, requiring them to use savings and credit cards. The parties resided at defendant's parents house in New Providence while their house was being renovated. Plaintiff performed most of the renovations himself, working on nights and weekends. The renovations were extensive, and took approximately seven months to complete.

The parties' second child (referred to here as "B.M.M.") was born in March 2004; the family moved into the marital residence on May 14, 2004. The family traveled to Ireland in the end of May 2004 for B.M.M.'s christening. Plaintiff returned to New Jersey a week later; defendant remained with the children until July 5, 2004.

On the question of where the children would live, the parties had a telephone conversation in June 2004, the substance of which is hotly contested. Defendant stated that she asked plaintiff if he would consider moving to Ireland, "not as a solution to [their] marriage but as a solution to the parenting of [their] children." She recalls plaintiff replying that, although he would not move, he supported the idea of her relocating there with the children.

Plaintiff's recollection is different. He remembers that defendant told him she did not love him and wanted a divorce. According to plaintiff, defendant refused marriage counseling and threatened to take the children with her to Ireland permanently. He was "shocked" and upset upon hearing she wanted a divorce.

Defendant and the children eventually returned from Ireland. Defendant contends that, upon her return, she and plaintiff had detailed discussions concerning her future travel to Ireland with the children with the eventual goal of relocating there. The record shows that the children have traveled frequently to Ireland accompanied by defendant. While there, they almost always stayed at the home of their maternal grandparents.

Plaintiff agrees that they discussed, without reaching an agreement, the idea of defendant relocating to Ireland with the children. He thus told defendant to put down what she wanted in writing. Based on their discussions, defendant prepared an agreement outlining a plan which permitted her to travel to Ireland with the children one month every quarter for the remainder of 2004 and 2005, with the goal of moving there permanently in September, 2006.

Under this agreement, defendant would work part-time until January 2005 to raise the funds needed for her travel. According to defendant, the agreement was to be formalized and become part of the divorce upon her return to the United States in September 2004. Plaintiff denied accepting any of these terms, characterizing it as defendant's wish list. Defendant and the children traveled to Ireland on August 15, 2004 and returned less than a month later.

Defendant terminated her employment at Schering Plough effective October 1, 2004. As with most matters, the parties contest the circumstances surrounding this event. Defendant asserted that she had "her husband's expressed approval" and relied on their written agreement in making the decision to leave her job. Plaintiff claimed that he "neither told defendant to quit her job at Schering, nor 'endorsed' it any way."

The parties presented expert testimony at trial in support of their respective positions. Plaintiff's expert, psychologist Edwin A. Rosenberg, testified first. He found both parents free from any psychological impairments. Both parents also interacted well with the children, and the children in turn responded well to both their parents. In Dr. Rosenberg's view, defendant was calmer and more serene with the children. According to Dr. Rosenberg, both parents could provide the children with all of the essential elements of good parenting.

Regarding defendant's wishes to return to Ireland, Dr. Rosenberg acknowledged that she had a large family-based support system there, and feels isolated in New Jersey. He also noted defendant's close relationship with her parents. Although Dr. Rosenberg did not travel to Ireland to see the environment in which defendant intended to raise the children, he indicated that this fact alone did not diminish the validity of his analysis.

Dr. Rosenberg recommended a parenting time arrangement in which the children could frequently see each parent, thereby enhancing opportunities to bond with each parent. Under this plan, one parent would have the children for four days, and the other parent three days per week. The procedure would alternate the number of days in the following week. Ultimately, Dr. Rosenberg recommended that the parties share joint legal and physical custody of the children and that defendant not be permitted to relocate the children to Ireland.

Defendant's expert was psychologist Charles Diament. He recommended that the parties share joint legal custody and physical custody, with defendant designated as the parent of primary residence. He joined with Dr. Rosenberg in recommending against defendant relocating the children to Ireland. He left open the prospect of revisiting the question in a year or two.

Judge Cassidy denied defendant's application to remove the children to Ireland. She also adjudicated all of the attendant issues concerning dissolution of the marriage, including: (1) awarding the parties joint legal and physical custody of the two minor children; (2) establishing a parenting time schedule; (3) awarding defendant weekly child support in the amount of $99 (4) denying defendant's petition for alimony; (5) equitable distribution of the real and personal property comprising the marital estate; and (6) denying either party an award of counsel fees. Judge Cassidy set out her factual findings and conclusions of law in a well-reasoned, comprehensive memorandum of opinion dated June 29, 2007. We incorporate these findings and conclusions by reference, and will thus not restate them here.

Our standard of review is well-settled. We are bound by the trial court's factual findings if they are supported by adequate, substantial and credible evidence on the record. Even where the focus of the dispute is alleged error in the trial judge's evaluation of the underlying facts and their implications, and thus the traditional scope of review is expanded, [an appellate court] will nonetheless accord deference to the trial court's findings unless they went so wide of the mark that a mistake must have been made.

That deference is especially appropriate when the evidence is largely testimonial and involves question of credibility. [Mackinnon v. Mackinnon, 191 N.J. 240, 254 (2007) (internal quotations and citations omitted).]

In reviewing decisions reached by Family Part judges, we are mindful that "matrimonial courts possess special expertise in the field of domestic relations" and thus appellate courts "should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

Against this standard, we affirm substantially for the reasons expressed by Judge Cassidy.


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