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Henry v. Henry

October 23, 2009

LYDIA HENRY, PLAINTIFF-RESPONDENT,
v.
NECTOR HENRY, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM 07-2000-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2009

Before Judges Wefing, Messano and LeWinn.

Defendant, Nector Henry, appeals from certain provisions of a final judgment of divorce entered, following trial, on December 19, 2007, relating to equitable distribution of two properties and the imputation of his income for the purpose of determining his alimony obligation to plaintiff, Lydia Henry; he also appeals from the February 14, 2008 order denying his motion for reconsideration.

We conclude that the trial judge's determination of the amount of the net proceeds of sale of an East Orange property subject to equitable distribution was not based upon substantial credible evidence of record; therefore, we reverse that issue and remand for further proceedings. In all other respects, we affirm the final judgment of divorce and the order denying reconsideration.

The parties were married on May 1, 1996; plaintiff filed her complaint for divorce on March 6, 2006. The parties have six children who ranged in age from eight to almost two years old as of the date of complaint. During the marriage, plaintiff "was solely a homemaker and... defendant was solely the income provider[,]" as the trial judge determined. Plaintiff has several disabilities; she was diagnosed with lupus in 2004, underwent surgery and chemotherapy for thyroid cancer in 2005 and 2006, and suffers from rheumatoid arthritis.

Defendant holds bachelor's and master's degrees in industrial manufacturing/engineering. During the marriage he was employed by the Metropolitan Transit Authority (MTA) in New York City; the parties' 2004 joint federal income tax return reflects that defendant earned wages of $51,428 in that year.

Defendant testified at trial that the MTA terminated him for cause in March 2005. Since that time, he has not sought comparable employment and has earned income through purchasing and renting residential properties.

In 2001, the defendant purchased a residence at 145-34 Arlington Avenue, Jamaica, Queens, New York; title to this property was in defendant's name only. This was a three-family house; the family lived on the first floor and rented out the other two floors. Defendant's brother, Carlos, moved into the basement apartment and lived there rent-free with his girlfriend and child until 2004.

In 2004, the family relocated to a single-family home at 241 North Walnut Avenue, East Orance, New Jersey; again, defendant purchased this property and held title in his name only.

Defendant moved out of that residence in November 2005, following a domestic violence incident. Defendant sold the East Orange property on November 14, 2005 for $350,000. The HUD-1 closing statement for that sale showed payoffs of two mortgages from the proceeds: a first mortgage in the amount of $246,733; and a second mortgage in the amount of $62,700.06. The trial judge determined that the latter mortgage amount was subject to equitable distribution. This determination will be discussed further below.

Defendant sold the Queens residence in June 2006; the HUD-1 statement reflected a sale price of $635,000. Defendant testified, however, that the actual sale price was $595,000, because the buyer had requested that the closing statement reflect an inflated purchase price. Defendant stated that he actually received net proceeds of $1213 and not $22,706 as reflected on the statement.

Defendant claimed that he owed his brother Carlos $90,000 from the closing proceeds on the Queens property, $75,000 for repairs and improvements Carlos allegedly made to the property and $15,000 to repay a loan from Carlos to defendant; defendant produced no documentation to support these claims. The trial judge found defendant's testimony incredible and concluded that "the payment of $75,000 to Carlos Henry and [the] $15,000 claimed loaned to defendant [by Carlos] was an attempt to dissipate marital assets subject to ...


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