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Zuppichini v. Zuppichini

December 31, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-808-05.

Per curiam.


Argued January 27, 2009

Before Judges Graves and Grall.

The parties were married in May 1985 and have two children. The older child, a daughter, is twenty-one years old and the younger child, a son, is eighteen. Plaintiff Elizabeth Zuppichini filed for divorce in November 2004. Defendant Mark Zuppichini appeals from a judgment of divorce entered on November 1, 2007, following a twelve-day trial. After reviewing the record and applicable law, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Plaintiff is forty-seven years old. She completed high school and attended college for one semester. During the marriage, plaintiff was a stay-at-home housewife and mother. Based in part upon an employment evaluation, the parties stipulated that plaintiff can earn $20,000 per year.

Defendant is forty-nine years old. He graduated from Fairleigh Dickinson University with a business degree and took some graduate courses but did not obtain a graduate degree. At the time of the marriage, defendant was employed by General Foods, earning an annual salary of $28,000. General Foods is a producer and distributor of food products, and defendant was involved in the sale of those products.

In 1986 or 1987, defendant left General Foods to become an account executive for Food Associates, which he described as "a food brokerage company." According to defendant, Food Associates was "a pure sales organization" that acted as an intermediary between food manufacturers and retail stores. The owners of Food Associates were Fred D'Agostino and Owen McKeever.

In 1996, Food Associates merged with a much larger food brokerage company known as Marketing Specialists. Prior to the merger, defendant was earning approximately $70,000 per year. Following the merger, the parties' joint tax returns show that defendant earned $369,232 in 1998, $344,993 in 1999, $428,925 in 2000, $322,232 in 2001, and $531,832 in 2002.

In 1998, the parties purchased a six-bedroom house in Colts Neck, New Jersey, and they also owned a three-story "summer home" located on a lagoon in Toms River. The summer home had a swimming pool and a dock where they kept their boat. On December 7, 2006, when the parties finalized their equitable distribution agreement, they agreed that their former marital residence in Colts Neck was "worth approximately $1.5 million" and their net equity was approximately $990,000. They further agreed that the summer home in Toms River had a value of $850,000 for purposes of equitable distribution.

The parties also owned or leased various automobiles, including a Mercedes Benz, a Porsche, a BMW, and a Ferrari. Moreover, the trial court found "[t]he family took regular and frequent vacations to Mexico, the Caribbean, Florida, and the West. They entertained frequently, often to further the defendant's business prospects. Food for parties they hosted was catered. They dined out often." Thus, the parties were financially secure and enjoyed a very comfortable lifestyle.

When Marketing Specialists went out of business in 2001 or 2002, defendant began working for a food-brokerage business known as World Wide Sales, Inc. (World) that was equally owned by D'Agostino and McKeever. Defendant testified he wanted to obtain an ownership interest in World and worked "a lot of hours" to provide superior services to World's top three customers, who accounted for approximately eighty percent of World's business. In June 2002, McKeever sold ten percent of his one-half interest in World to D'Agostino and the remaining forty percent to defendant. Consequently, D'Agostino owns sixty percent and defendant owns forty percent of the company.

Despite his ownership interest, defendant testified his compensation is determined solely by D'Agostino: "Based on the amount of work, the travel, the pressure I took off of him. He determined it. It was his determination." According to the parties' joint tax returns, defendant earned $784,709 in 2003, and $1,309,447 in 2004.

Defendant acknowledged he also receives "pension money or retirement money" from World Wide Sales II, Inc. (World II) although he has no ownership interest in the company. Defendant testified World II had been previously incorporated by D'Agostino and his son for "tax and [pension] benefit purposes."

In addition, defendant acknowledged he receives income from Sand Dollar Tours, Inc. (Sand), a company he wholly owns. Defendant explained that Sand is a "perk company" used "to promote our business and build up business. We use it for a lot of different reasons. . . . We run a lot of expenses through it." Those expenses include buying tickets or "something of that nature" to promote business. Defendant further testified his father and plaintiff both received a salary from Sand, although they did not actually perform any services for the company on a regular basis.

After plaintiff filed for divorce in November 2004, defendant moved to the parties' summer home in Toms River. The parties' son began living with defendant in December 2004, and in September 2005, the parties' daughter joined them.

On his 2005 federal tax return, defendant reported he earned $530,548, a significant reduction from his earnings of $1,309,447 in 2004. Defendant primarily attributed the reduction in his earnings to his increased responsibilities as the children's custodial parent. Defendant testified he was "taking care of the kids a hundred percent of the time," and D'Agostino decided to reduce his salary because he was no longer able to devote as much time to his work.

When he testified on February 14, 2007, defendant was asked how he was paid, and he explained:

Well, my salary is 520,000, and the structure that was set up was based on 520,000, and there were two $30,000 bonuses, that depending on if we made the numbers, the six numbers for the company, it's all based on the company. Everybody would win out if we made the bonus. And if we didn't, nobody had a bonus. So, that's pretty much how it's been structured, it hasn't changed.

And I haven't really been able to ask to make any changes in the last two years.

During the trial, the parties agreed defendant would be the parent of primary residence, plaintiff would have visitation with the children, and the parties would share joint legal custody. The parties also reached an agreement regarding equitable distribution, which the trial court summarized as follows:

The plaintiff received the following as a result of the parties' agreement as to equitable distribution: the Colts Neck home valued at $1.5 million dollars; a cash payment of $600,000; complete access to the following savings and retirement plans: World Wide Savings Plan in the amount of $50,305 and World Wide Sales Two pension plan in the amount of $45,255; a guardian IRA account in the amount of $115,955; a second IRA account in the amount of $91,841.16 and a third IRA account in the amount of $202,982.

The defendant received the following in terms of equitable distribution: the Toms River home with the value of $850,000; the family Ferrari which is estimated to be worth at [least] $70,000; the family boat and jet skis valued at $10,000; a cash surrender value on a life insurance policy in the amount of $58,000; interest in World Wide Sales I and Sand Dollar Tours which has been previously estimated at $2.7 million; the remains of the parties['] mutual fund ...

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