On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1251-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Messano.
In this matrimonial matter, defendant Robert Miller appeals from that portion of a final judgment of divorce (FJD) equitably distributing the parties' jointly held primary and vacation homes, claiming they are immune assets owned exclusively by him, or, alternatively, that the Family Part judge erred by overvaluing the interest of his wife, plaintiff Marie Miller, therein. Plaintiff cross-appeals from the dismissal of her Tevis*fn1 inter-spousal tort claim. We affirm.
The relevant facts are as follows. The parties were married on March 26, 1986 and after twenty years together, separated on March 13, 2006. Sixty-four-year-old defendant is a retired physician of osteopathic medicine who currently suffers from cognitive deficits. Plaintiff began working for defendant in his medical practice as office manager in 1976, and by 1983 -- three years before their marriage -- had moved in together in the same residence at 641 First Avenue, West Creek, that they continuously occupied up to the time of their separation. She is currently sixty-one years old and also suffers from health problems, namely renal failure, a blood disease of abnormal protein cells, and seizures.
The dispute over the division of assets concerns the West Creek marital home (Cedar Run), with a stipulated value of $495,000, and a Lake Tahoe vacation home investment property, with a stipulated value of $1,565,000. Both of these properties, together with the West Creek office property on Main Street, were originally owned by defendant's parents, who purchased them in the 1970's. In 1976, defendant took possession of the Cedar Run property and commenced paying his parents $850 per month toward the $35,000 plus interest defendant's parents agreed to accept before transferring legal title to their son. Before defendant made full payment however, on April 30, 1980, defendant's parents executed a deed of trust on the Cedar Run home, under which defendant was named trustee. The terms of this trust deed are unclear from the record,*fn2 but by all indications, it appears defendant was simultaneously named sole trustee and joint beneficiary. In any event, eleven years later, on December 20, 1991, defendant, acting as trustee on behalf of his parents, executed a deed transferring the Cedar Run property jointly to him and plaintiff. Before that transfer occurred, defendant's parents forgave various amounts of defendant's loan on the Cedar Run property once a year from 1987 to 1992. The second to last loan forgiveness note was written by defendant's parents on December 28, 1991, about a week after defendant executed the 1991 deed, and the final note was written on January 1, 1992, almost two weeks later. All of the notes were addressed to both parties.
As noted, the parties jointly occupied the Cedar Run property beginning in 1983, three years before marriage, and ending upon separation in 2006. When plaintiff moved into the property, it was under construction after having burned down in a fire in the late 1970's, and she, along with her sons and former husband, actually assisted in rebuilding the house. Defendant acknowledges that plaintiff contributed to the care and upkeep of the home.
In 1991 or 1992, at around the same time defendant executed the deed on the Cedar Run property, defendant recorded a deed transferring legal title to the Tahoe property jointly into both parties' names.*fn3 According to defendant, his intent for doing so, as with the marital home, was to protect his assets from potential medical malpractice judgments, and to avoid the federal estate tax in the event he predeceased his wife. Plaintiff, on the other hand, denied any such motive, and instead explained that the Cedar Run property was a gift from defendant's parents to the parties jointly, and that the inclusion of her name on the deed was to provide for her general financial well-being and to compensate for her work at defendant's medical practice. In any event, in 1990, the Tahoe property burned down and was rebuilt. The monies used for reconstruction came primarily from insurance proceeds but also from marital funds. Plaintiff traveled to Nevada to obtain building permits and oversee construction, the actual duration of her stay ranging somewhere between two to six months.
In marked contrast to the circumstances surrounding the parties' acquisition of their interests in these two properties, no one on appeal disputes that the West Creek office property, which housed defendant's medical practice, is defendant's separate asset immune from equitable distribution. This property was purchased by defendant's parents in 1976. On May 30, 1978, defendant signed a note to them in the amount of $37,000, and paid the note at the rate of $768 per month. After fourteen months, the note was deemed paid in full, but the deed to the office property was not actually transferred to defendant until December 27, 1991. At all times, plaintiff understood that defendant owned the building, and marital assets were not used for its maintenance.
Although plaintiff argued at trial that she acquired an equitable interest in the West Creek office property by virtue of her contribution to defendant's medical practice, the Family Part judge disagreed and held this asset non-"marital" and ineligible for equitable distribution. The judge reasoned that defendant had a sole equitable interest in the property prior to the marriage; the 1991 deed conveyed legal title to him alone; there was no evidence that marital assets were used to maintain the building or that defendant's parents intended to gift it to the parties jointly; and the asset was not commingled with other marital property. As noted, this ruling is not challenged on appeal.
On the other hand, the judge included both the Cedar Run and Lake Tahoe properties in the marital estate, awarding plaintiff a 45% share in the marital home and a 40% share in the vacation property. In doing so, he considered the factors enumerated in N.J.S.A. 2A:34-23.1. Regarding the Cedar Run property, the judge reasoned the marital home was maintained and improved using joint funds and that both parties contributed to its care and upkeep. Of paramount significance was the fact that, during the marriage, legal title had vested in both parties at the same time by operation of the same deed. In fact, prior to 1991, defendant never owned an outright fee simple interest in the property. Equally important, in a series of annual loan forbearance agreements issued to both plaintiff and defendant, defendant's parents had begun forgiving the loan on the Cedar Run property after the parties were married and ending roughly contemporaneous with the recordation of the deed in both parties' names. Specifically, the judge stated:
Legal title, however, actually vested in both plaintiff and defendant in the 1991 deed. The deed of transfer was a trustee's deed and it seems clear to infer that it was carrying out the wishes of his parents as well in deeding the property into both his and his wife's name. They had previously executed the various loan forgiveness agreements and made certain that Marie was a co-recipient even though there is no evidence of a loan document previously which she would have signed. At this time the marriage was in good stead and the relationship solid. There was nothing to indicate that Robert Miller likewise was not fully intending to transfer his share of any equitable interest he may have held into his wife as well.
Consequently, the judge found the Cedar Run property eligible for equitable distribution, but in recognition of defendant's pre-existent equitable interest as trustee, ...