April 24, 2009
SHEIKH E. KABIR, PLAINTIFF-APPELLANT,
KUHALI KABIR, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-245-06P.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2008
Before Judges Graves and Grall.
Plaintiff Sheikh E. Kabir appeals from provisions of an amended final judgment of divorce awarding defendant Kuhali Kabir alimony, equitable distribution and counsel fees. We modify the award of equitable distribution and otherwise affirm.
The Kabirs were married in Bangladesh on January 15, 1996. Four and one-half months later, plaintiff immigrated to the United States. Defendant remained in Bangladesh, where she gave birth to their first child in December 1996.
In April 1997, plaintiff became a citizen of the United States. Later that year, defendant and the child moved to this country. At that time, plaintiff worked at a casino, and the family lived in an apartment in Atlantic City.
In 1999, plaintiff purchased a duplex residence in Ventnor for $110,000. When plaintiff applied for a mortgage, he reported gross income of $1793 per month and anticipated income of $720 per month from rental of the first-floor unit of the duplex.
Defendant obtained a job at the mall in 1999 and gave birth to the Kabirs' second child in February 2000. In June 2000, defendant took a job in a casino. In addition to their income from employment, the Kabirs collected approximately $800 per month from the tenants who occupied one-half of their duplex.
During the course of the marriage, plaintiff took three separate loans secured by the equity in the marital residence - a $25,000 loan in February 2001, a $35,000 loan in September 2001 and a $55,000 loan in 2002. Plaintiff spent $18,000 of the first loan to pay credit card debt and used a portion of each subsequent home equity loan to pay the prior loan.
In support of the application for the $25,000 loan, defendant reported weekly income in the amount of $860. Between November 2001 to March 2002, the Kabirs visited with their families in Bangladesh. While they were there, neither party worked.
In March 2004, plaintiff sold the marital residence and received $89,100 at the time of closing. He made arrangements with the buyer that allowed his family to remain in their home for a time. But on May 27, 2004, the Kabirs left for Bangladesh, where they remained until August 30, 2004. Again, neither plaintiff nor defendant worked while abroad.
The Kabirs returned to New Jersey, and in January 2005 they separated and shortly thereafter defendant returned to Bangladesh with the children. According to defendant, their separation was attributable to plaintiff's abusive conduct and his insistence on control of their finances, including her earnings. According to plaintiff, defendant was not faithful to him.
Plaintiff sent significant amounts of money to Bangladesh during the marriage. Between March 2002 and December 13, 2005, plaintiff transferred $20,964 to Bangladesh, $2222 in 2002, $1360 in 2004 and $17,382 in 2005. Defendant contended that these expenditures were related to land plaintiff purchased in Bangladesh, but plaintiff denied any land purchase and explained that he had sent some of the money to support defendant while she was in Bangladesh and the remainder to assist his parents.
When the parties separated in January 2005, the account in which plaintiff had deposited the $89,100 he received at the time of the sale of the residence had a balance of $69,289. On September 7, 2005, when plaintiff filed his complaint for divorce, the account had a balance of $43,915.
A default judgment dissolving the Kabirs' marriage was entered on December 1, 2005 while defendant was in Bangladesh. She returned to New Jersey on December 7, 2005 and subsequently applied to reopen the judgment for the purpose of addressing equitable distribution, alimony, custody and child support.
Plaintiff left New Jersey for Bangladesh on January 5, 2006. He remarried in that country in February 2006.
On July 21, 2006, on defendant's motion, the court ordered the transfer of the funds held in plaintiff's account, a total of $29,975.64, to defendant's attorney pending conclusion of the litigation. On July 30, 2006, plaintiff returned to New Jersey.
The parties reached an agreement on custody and parenting time. Accordingly, the focus of the trial was on the financial aspects of the case. The disputed facts involved plaintiff's income and his dissipation of marital assets.
At the time of trial, defendant was thirty-three years old. She was earning $330 per week, a fact to which the parties stipulated. Although she had passed a course qualifying her to work as a dealer and initially found a job, that casino closed before she started work and she was not able to find a position as a dealer elsewhere.
Plaintiff was forty-three years old at the time of trial. His earnings were contested. Defendant contended that plaintiff's income tax returns, which reported earned income of approximately $4000 per year, grossly understated his earnings as a cab driver. She presented testimony from a cab driver who testified that he earned between $40,000 to $50,000 per year, an amount consistent with the casino earnings defendant reported when he applied for a home equity loan in 2002. According to plaintiff, that driver worked hours different than his and, for that reason, had greater earnings. Defendant also testified that the income he reported on the application for his home equity loan was overstated due to a mistake by the bank employee who prepared the application.
The trial court made the following findings relevant to equitable distribution. In identifying the assets eligible for equitable distribution, the court considered the evidence that plaintiff had controlled and dissipated the parties' assets during their marriage and following separation. For reasons stated at length in an oral decision delivered on October 3, 2007, the trial court generally discredited plaintiff's testimony, including his account of the purposes for which funds acquired from the home equity loans and the sale of the marital residence were spent. There was one exception. The court credited plaintiff's claim that he used $18,000 of the borrowed funds to pay credit card debt.
The court further found that the equity the Kabirs recovered when they sold the marital residence was $55,000 less than it would have been if the home equity loans had not been taken. On the ground that plaintiff had given a satisfactory explanation for use of no more than $18,000 of that $55,000 loan, the court added the remainder, $37,000, to the $89,100 amount. On that basis, the court concluded that the Kabirs would have received $127,000 at the time of the sale but for plaintiff's expenditure of the proceeds of the home equity loan for his own purposes.*fn1
After considering the statutory factors relevant to division of marital property, the court concluded that defendant was entitled to $63,500, one-half of $127,000, $29,976 of which was already held by defendant's attorney pursuant to the court's prior order. Thus, the court fixed the amount due from plaintiff to defendant for equitable distribution at $33,524.
In awarding alimony, the court found, consistent with the parties' stipulation, that defendant had the ability to earn $330 per week or $17,160 per year. The court imputed annual earnings of $45,000 to plaintiff.
On the basis of defendant's case information statement and her testimony, the court found that defendant needed approximately $2800 per month to meet her expenses and those of the children. The court accepted plaintiff's testimony that he required net income of $770 per month to meet his needs.
After considering the statutory factors relevant to an award of alimony, the court concluded that permanent alimony in the amount of $150 per week was appropriate.
In accordance with the child support guidelines, the trial court first considered payment and receipt of alimony and the income and payroll taxes each party would be required to pay. The court then calculated child support based on the parties' net income and fixed child support in the amount of $204 per week.
Under the trial court's order, after payment and receipt of alimony and child support, plaintiff will have $2124 per month to meet his needs, and defendant will have $2807.90 per month to meet her own needs and those of the children.
The court also awarded defendant $40,925 for counsel fees and costs. Defendant had incurred fees and costs of approximately $60,000 and paid only $16,850 of that amount. Plaintiff had paid his attorney $36,000 for the fees and costs he incurred.
The trial court based the award of counsel fees on defendant's limited capacity to earn, the unreasonable and unsuccessful positions plaintiff took during the litigation and the additional expenses defendant incurred due to plaintiff's conduct during the litigation. In that regard, the court noted that plaintiff, who reported earnings of approximately $4000 on his income tax returns, had spent $36,000 resisting defendant's reasonable requests.
Plaintiff raises three issues on appeal:
I. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT PLAINTIFF DISSIPATED MARITAL ASSETS OF $127,000.
II. THE TRIAL COURT ERRED IN AWARDING DEFENDANT PERMANENT ALIMONY WITHOUT CONSIDERING REHABILITATIVE ALIMONY AS WAS APPROPRIATE UNDER THE FACTS OF THE CASE.
III. THE TRIAL COURT ERRED IN ITS AWARD OF ATTORNEY'S FEES BY UTILIZING AN INCOME FOR PLAINTIFF THAT WAS UNSUPPORTED BY THE EVIDENCE.
The argument presented in Point III of plaintiff's brief lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Accordingly, we limit our discussion to plaintiff's objections to the trial court's rulings on equitable distribution and alimony.
Plaintiff's claimed error related to equitable distribution involves the law governing dissipation of marital assets. The first task involved in equitable distribution is identification of the assets eligible for distribution. Rothman v. Rothman, 65 N.J. 219, 232 (1974). Generally, when the parties have expended all of their assets, there is no question of equitable distribution because there are no assets to distribute. Carlsen v. Carlsen, 72 N.J. 363, 371 (1977). A different analysis is required, however, when one spouse has "dissipated the marital assets, or otherwise disposed of them in fraud of the other." Kothari v. Kothari, 255 N.J. Super. 500, 510 (App. Div. 1992). In that circumstance, "the asset subject to distribution may take the form of a cash indebtedness to be imposed by the court upon one spouse in favor of the other." Ibid.
In Kothari, this court discussed the interests implicated by an inquiry into spending during a marriage and provided a framework for determining when spending can amount to a dissipation. We identified the competing considerations:
When one party to a divorce proceeding spends marital funds extravagantly, or merely for his or her own benefit, that obviously diminishes the amount of property which is available for distribution by the divorce court. On the other hand, until such time as the parties are contemplating a divorce, they are generally vested with the authority to spend marital funds for their own enjoyment . . . . The question of dissipation of marital assets thus involves an attempt to accommodate these two conflicting interests in the marital estate. [Id. at 506-07.]
In addition, we adopted an analytical framework suggested by decisions of our courts and courts in other jurisdictions. Under that analysis, the ultimate question is "whether the assets were expended by one spouse with the intent of diminishing the other spouse's share of the marital estate." Id. at 507. That question is addressed by weighing the following factors:
(1) the proximity of the expenditure to the parties' separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditure benefited the "joint" marital enterprise or was for the benefit of one spouse to the exclusion of the other, and (4) the need for, and amount of, the expenditure. [Ibid.]
Kothari left "for future cases the question of whether the dissipation concept also includes expenditures of marital assets, even where the parties are not considering separation, where the expenditures are made for purposes inimical to the marriage and in association with some form of matrimonial misconduct." Ibid.
In Kothari, this court affirmed the trial court's decision to impose a debt in the amount of $53,812 to compensate the wife for her interest in marital assets dissipated by the husband "between the date of the marriage on April 30, 1981, and the filing of the divorce complaint on August 7, 1989." Id. at 505. Between 1985 and July 1988, the husband had filed complaints for divorce on three separate occasions, and the trial court found that throughout the marriage he had manipulated the marital assets while "thinking about and planning for a divorce." Id. at 509.
The trial court in Kothari based the debt imposed on specific findings: $15,000, one-half of $30,000 husband sent to his parents between October 1981 and September 1987, over his wife's objection, to satisfy a "moral obligation"; $9500, one-half of a $19,000 fund the husband established by liquidating marital assets and then spent for his own purposes while contemplating divorce; and $29,312, one-half of $58,624 the husband spent for the support of his parents while they lived with him after his abandonment of his family. Id. at 505-06.
In this case, the trial court conducted a different analysis. The court did not identify the point at which plaintiff contemplated divorce or acted with the intent to deprive defendant of her share of the marital assets or consider spending done for marital purposes - for example, travel and extended vacations and payment of interest and costs on the home equity loans. Rather, based only on a comparison of the purchase and sale price of the marital residence and plaintiff's control over the funds acquired during the marriage, the court concluded that the full $55,000 amount of the final home equity loan, other than the $18,000 plaintiff paid to eliminate the Kabirs' credit card debt, should be treated as if it were available for equitable distribution. On that reasoning, the court added $37,000 to the proceeds from the sale of the marital residence and identified an amount that should have been available for equitable distribution. Thus, no consideration was given to plaintiff's discretion to spend for purposes not inimical to the marriage while the marriage was intact.
There is significant evidence that this divorce was not contemplated after the sale of the residence. Following the closing in March 2004, the family remained in New Jersey for two months and then traveled to Bangladesh, where they stayed for three months before returning together to New Jersey in August 2004. The Kabirs separated for one week after defendant called the police to respond to an incident of domestic violence on October 30, 2004, but they reunited and stayed together until January 2005.
It is clear that between the sale of the marital residence in March 2004 and the Kabirs' separation in January 2005, the balance in the account holding the proceeds from the sale of the marital residence dwindled from $90,000 to $69,289. But during that period the family traveled to and from Bangladesh and neither party worked for three of the months during this eight-month period. There is no evidence that any expenditure or withdrawal during that period was made for plaintiff's purposes alone.
The record establishes that some of the money secured from the home equity loan and sale of the residence was spent to pay for the family's travel to Bangladesh. There is undisputed evidence that the Kabirs spent $9450 on airfare between the time of the first home equity loan and January 2005.
Because the court did not analyze the evidence in accordance with Kothari, we cannot defer to the court's decision. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). While we would ordinarily remand for reconsideration, the record is adequate to permit us to resolve the question of dissipation and bring the matter under review to a conclusion. See R. 2:10-5; Accardi v. Accardi, 369 N.J. Super. 75, 91-92 (App. Div. 2004).
The trial court found that plaintiff's accounting of his disposition of marital assets, including his explanation for wiring funds to Bangladesh and his denial of purchase of land in Bangladesh during the course of the marriage, wholly lacking in credibility. We accept and rely upon that finding. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
The record establishes that plaintiff spent marital funds on property he acquired in Bangladesh. Plaintiff wired $2222 to his brother in Bangladesh on April 16, 2002, which was shortly after the Kabirs returned from an extended visit to their homeland. Records of East West Property Development, LTD, a Bangladeshi company, establish that payments were made on plaintiff's behalf to that company for the "cost of land and land development" beginning in March 2002. Plaintiff wired an additional $1360 to Bangladesh in 2004. One of the three wire transactions, a transaction completed on November 16, 2004, designates East West Property as the recipient of the funds. The other two designate defendant's brother as the recipient. In addition, defendant testified that she saw plaintiff's property when she was in Bangladesh, but she did not present any evidence to establish the value of the property, which was held in plaintiff's name alone. Plaintiff offered nothing but a denial to rebut the convincing evidence that he acquired and held land in Bangladesh during the marriage.
In the absence of evidence of present value of the property in Bangladesh and in the face of plaintiff's incredible denial of ownership, it is appropriate to infer that plaintiff's course of conduct amounted to a dissipation. Through his use of the funds and denial of property ownership, he effectively deprived defendant of her share of the marital assets he spent in connection with the purchase and retention of the property, $3582. There were no other wire transfers or questionable transactions established between 2004 and the Kabirs' final separation in January 2005.
The record, however, does demonstrate additional dissipation between January 2005, the date of separation, and September 7, 2005, the date on which plaintiff filed the complaint for divorce. During that period plaintiff wired significant sums to Bangladesh while at the same time drawing down the balance of the account that held the proceeds from the sale of the marital residence from $69,289 to $43,915. The trial court did not credit plaintiff's claim that the funds expended during this period were wired to members of his family for the support of his wife and children. Relying on that determination, we find that plaintiff's withdrawal of funds from the account holding the proceeds of sale after January 2005 also was intended to deprive defendant of her share of the marital estate.
On the foregoing facts, we find that $72,871 would have been available for equitable distribution on the date the complaint was filed but for plaintiff's dissipation. That figure is based on the stipulated balance of the account on the date of final separation, $69,289, plus the funds plaintiff wired to Bangladesh before that date, $3582.
Accepting the trial court's conclusion that the balance of the statutory factors relevant to equitable distribution warrants an equal division of the property, we determine that defendant is entitled to one-half of $72,871, or $36,435.50.
Plaintiff's claim that the court erred in awarding permanent, rather than rehabilitative alimony, does not require extended discussion. The determination is one that is left to the sound exercise of the trial court's discretion and not disturbed on appeal unless the court failed to consider controlling legal principles or made findings so inconsistent with or unsupported by competent evidence as to be clearly mistaken and unjust. See Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005).
Permanent alimony does not require a marriage of specific duration or a supported spouse of a particular age. Age and length of the marriage are two of the several factors a court must consider in addressing a request for permanent alimony. N.J.S.A. 2A:34-23(b)-(c). N.J.S.A. 2A:34-23(c) provides:
In any case in which there is a request for an award of permanent alimony, the court shall consider and make specific findings on the evidence about the above factors[, those set forth in N.J.S.A. 2A:34-23(b).] If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor. The court shall then consider whether alimony is appropriate for any or all of the following:
(1) limited duration; (2) rehabilitative; (3) reimbursement.
Thus, the Legislature has directed denial of a request for permanent alimony only if the court determines, after consideration of the evidence relevant to all of the statutory factors, that permanent alimony is "not warranted."
While neither defendant's age nor the duration of this nine-and-one-half-year marriage weigh heavily in favor of an award of permanent alimony, that does not compel the conclusion that the trial court abused its broad discretion. An award of rehabilitative alimony is appropriate only when "based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur." N.J.S.A. 2A:34-23(d). The trial court found that defendant "is presently earning at or near her capacity" but is unable to meet her needs. The evidence supported that determination. Even after taking and passing a course to qualify as a "dealer" in a casino, defendant had not obtained a job paying more than $330 per week, and there was no evidence relevant to the steps she could or should take in order to "achieve economic self-sufficiency" or to the time and expenditure reasonably required to accomplish that goal. Cox v. Cox, 335 N.J. Super. 465, 473-75 (App. Div. 2000) (internal quotations omitted). On this record, the trial court's determination was not clearly mistaken. See id. at 473.
Affirmed as modified and remanded for amendment of judgment in conformity with this decision.