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Sterling v. Sterling

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 16, 2010

JOAN R. STERLING, PLAINTIFF-RESPONDENT,
v.
MARK STERLING, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-959-98.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 3, 2010

Before Judges Stern and Graves.

In this post-judgment matrimonial matter, the parties were married in 1973 and divorced in 2000. Their two children are both emancipated. Defendant Mark Sterling appeals from an order dated June 8, 2009, requiring him to pay the sum of $480,000 to plaintiff at the rate of $1500 per month through the appropriate county probation department. The order was entered following a plenary hearing. We affirm.

This is the second time we have considered this case. As we previously noted, the parties agreed in a property settlement agreement (PSA) as follows:

Under the PSA, the parties agreed that plaintiff would have legal and physical custody of the children, and defendant would have reasonable rights of visitation. Paragraph 1 provided that defendant would pay plaintiff $1,000 a month child support, said amount to be increased after ninety days to $1,500 a month. All payments were to be made through the Monmouth County Probation Department, now the Probation Division (Division). Paragraph 14 provided that plaintiff reserved her right to alimony, support and maintenance.

Paragraph 16 governed equitable distribution of all property acquired during the marriage. Under that paragraph, plaintiff was entitled to receive $681,000 from defendant as her share of equitable distribution. In addition, the amount due plaintiff was reduced to a judgment against defendant, with defendant agreeing to "propose and effectuate a reasonable schedule of payment on said [j]udgment." Lastly, Paragraph 16 provided that "[u]pon emancipation of a child or children, the [defendant] shall continue to pay the previous child support amounts to the [plaintiff] as and for payment on the open [j]udgment."

[Joan R. Sterling v. Mark Sterling, No. A-2172-07 (App. Div. Oct. 10, 2008) (slip op. at 2-3).]

In our prior opinion, we recognized that Rule 5:7-4 limits monies paid through probation to "alimony, maintenance, or child support." We therefore remanded the matter to the trial court for a plenary hearing to determine whether the monies paid by defendant "were intended as payment toward plaintiff's support and maintenance, in lieu of alimony, and not only as plaintiff's share of equitable distribution." We also stated that if defendant's obligations under the PSA were intended as "spousal support, the court may direct that the payment be made through the Division."

The parties were the only witnesses to testify at the remand hearing, which took place on March 11, 2009. Following the hearing, the trial court set forth its findings and conclusions in a written decision on May 28, 2009. The court found plaintiff was the more credible witness, and accepted her testimony that she lost her employment with the Internal Revenue Service due to defendant's criminal activities and that $480,000 of the total judgment in the amount of $681,000 was intended for plaintiff's support and maintenance in lieu of alimony.

On appeal, defendant contends the trial court erred because plaintiff's proofs were insufficient to establish that any portion of the judgment is spousal support. Our scope of review of a trial court's factfinding function is limited. If the judge's factual findings are supported by adequate, substantial, and credible evidence, they are binding on appeal. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

Moreover, our deference is especially appropriate when the evidence is mostly testimonial and the court's findings are significantly influenced by its credibility assessments. Id. at 412.

Guided by these principles, we have carefully considered the record and conclude that the court's determination is supported by substantial credible evidence. Accordingly, we affirm substantially for the reasons stated by Judge Coogan in his written decision on May 28, 2009.

Affirmed.

20100316

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