On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1919-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Grall and Espinosa.
Defendant James Bright appeals from those portions of the judgment of divorce that address equitable distribution of a vacation property and award alimony to his former wife, Linda. We affirm.
The parties were married on March 12, 1983 and resided in Hasbrouck Heights. At the time of their trial, James was fifty-three and Linda was forty-nine. Their two children were sixteen and twenty.
James was employed as a sheet metal worker, earning an average annual income of $104,000. Linda worked as a legal secretary until November 2006, earning $60,000 in her last full year of employment.
In the latter half of 2006, Linda started exhibiting manic and depressive behavior. She began to drink excessively and, in November 2006, she was charged with and pleaded guilty to driving while intoxicated. Her driver's license was suspended until August 2008. Linda began receiving temporary disability benefits in November 2006 and has remained unemployed since then. In early 2007, she was diagnosed with bipolar disorder and major depressive disorder.
On January 26, 2007, Linda filed a domestic violence complaint against James and obtained a temporary restraining order "TRO" that gave her sole possession of the marital residence. Linda filed a complaint for divorce on February 27, 2007. The TRO was resolved by a consent order on March 5, 2007, that allowed Linda to continue in possession of the marital residence but did not require James to pay any pendente lite support.
Her attorney represented that Linda's mental illness caused her to be hospitalized three times during the litigation. Linda testified that she was last released from the hospital on June 5, 2007.
In October 2007, Linda applied for disability benefits. The Social Security Administration ("SSA") determined that she was permanently disabled as of December 1, 2006, and awarded her monthly payments of $1750, retroactive to May 2007. The SSA approved Linda's sister as her payment representative because Linda was unable to handle the funds herself.
On February 20, 2008, after nearly one year of litigation, the judge handling this case appointed a guardian ad litem for Linda. The court found that she could not make appropriate decisions for herself, a conclusion supported by reports from Linda's treating psychiatrists.
During the marriage, the parties acquired a property in Damascus, Pennsylvania ("vacation property"). The parties stipulated that they jointly paid $28,500 to purchase the land and $185,000 for the construction of a residence on it. These investments were largely funded by a home equity loan on the marital residence. In January 2007, the frame of the residence was completed. The last joint payment was made on February 5, 2007, nine days after Linda obtained the TRO and three weeks before she filed the complaint for divorce. The funds for this $30,000 payment came from the liquidation of a joint account. The remaining $27,000 from that account was applied to satisfy the mortgage and make two payments for the home equity loan on the marital residence. After litigation began, Linda made no further payments toward the vacation property. James separately paid $116,000 between May and September 2007 to complete the house.
While the litigation was pending, the parties liquidated certain assets and distributed some of the proceeds. Linda received $111,000 from these distributions and James received $136,000.
Despite a substantial shortfall between her disability payments of $1750 per month and her monthly overhead, Linda rejected her attorney's advice to apply for pendente lite support. She testified that she did so because she felt guilty about filing for the divorce and its financial consequences and that this guilt had been fueled by James blaming her for the divorce. With only her disability benefits and equitable distribution available, Linda paid all her own living expenses, the home equity loan of $2145 per month, real estate taxes and homeowner's insurance on the marital residence, monthly maintenance for the parties' Florida timeshare, $5300 for a new roof and gutter replacement, monthly payments on a joint credit card, and her son's student loan interest. Linda claimed a total of $48,968 in such expenses that were paid out of the funds she had received in equitable distribution.
At the outset of the trial, the court advised the parties that the valuation date for the vacation property would be the date of distribution. Both parties were allowed to submit updated appraisals. Linda submitted an appraisal that valued the vacation property at $380,000 as of April 18, 2008. James chose not to submit an updated appraisal. He argued that the property should be valued as of the date of the complaint. His appraisal of the property as of January 26, 2007, when the building was only framed, was $205,000, which was less than what the parties had invested in the property. At the time of trial, the building was completed. James's motion to exclude Linda's expert real estate appraisal was denied.
Although Linda sought alimony in her complaint, she did not seek pendente lite support until her trial brief requested such relief retroactive to the filing of the complaint. Linda filed an updated case information statement ("CIS"), dated April 18, 2008. James's CIS, dated May 24, 2007, was never updated and did not include marital lifestyle expenses.
The trial was conducted on eight non-consecutive days from April 22 through June 4, 2008. On May 7, the parties resolved a number of issues by stipulation, including child custody and the distribution of various assets. The final judgment of divorce, dated June 26, 2008, granted Linda permanent alimony in the amount of $577 per week, or ...