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Vernose v. Zoller


April 7, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1453-04.

Per curiam.


Argued February 22, 2010

Before Judges Reisner, Yannotti and Chambers.

In this matrimonial action, defendant wife appeals and plaintiff husband cross-appeals from portions of a final judgment of divorce entered November 16, 2007. We affirm.

The facts are discussed in detail in the trial judge's opinion and need not be repeated here. Following a very lengthy trial, Judge Roe issued a 105-page written opinion, making factual findings including detailed credibility determinations. In her appeal, defendant argues that the trial court erred in failing to award her equitable distribution of the marital residence, which plaintiff had bought with his previous spouse years before he met defendant. She also claims entitlement to a share of certain assets that plaintiff acquired during the parties' four-year period of pre-marital cohabitation. She contends the court erred in dismissing her claims of entitlement to equitable remedies. She argues that the judge improperly precluded her from calling several witnesses, based on the judge's conclusion that subpoenaing those individuals was an attempted "fishing expedition" after the close of discovery.

Defendant challenges the award to her of $1500 per week in alimony, $3000 per month in child support plus $2500 per month in private school tuition, as inadequate.*fn1 She contends that the court should not have allowed plaintiff to obtain a decreasing term life insurance policy to secure the alimony award. Defendant, who changed attorneys four times during the divorce proceedings thus causing significant delays, also appeals the court's order that she pay $10,000 for the cost of an economic mediator and $9164 in counsel fees to plaintiff.

Plaintiff cross-appeals, claiming that the trial court should not have awarded permanent alimony based on the parties' four-year period of cohabitation followed by eight years of marriage. He also contends the court gave defendant an excessive alimony award, and erred in awarding defendant sole ownership of a $315,000 Florida condominium that the parties purchased while they were cohabiting. Plaintiff further argues that the trial court should have ordered defendant to pay a larger portion of the more than $350,000 in counsel fees and other litigation expenses that he incurred during the divorce litigation.

We have reviewed the entire record, including reading the massive trial transcript and the judge's thorough and well-reasoned opinion dated September 14, 2007. Based on that review, we find no basis to disturb the judge's decision to credit the testimony of plaintiff and his expert accountant, and her decision that defendant and her economic expert were not credible.*fn2 The support award and the overall distribution of assets were fair to both parties and consistent with applicable law. The judge's decision is supported by substantial credible evidence, and warrants our traditional deference to the expertise of the Family Part. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998).

We conclude that the parties' respective appellate contentions are without merit, R. 2:11-3(e)(1)(E), and warrant no discussion except as briefly addressed below.*fn3 We affirm substantially for the reasons stated in the trial judge's comprehensive opinion. We add the following comments.

Defendant's reliance on McGee v. McGee, 277 N.J. Super. 1 (App. Div. 1994), is misplaced. McGee does not state a bright-line rule that in every case where a couple cohabits before marriage, all assets acquired during cohabitation must be treated as marital assets. McGee turned in large part on the pervasive sense of injustice conveyed by the facts of that case. Id. at 10.

In McGee, prior to the marriage, the plaintiff bought the defendant's house from her at a substantial discount, because it was about to be sold at a sheriff's sale. Id. at 3-4. He proceeded to strip the remaining equity by taking out loans, and then reconveyed the house to himself and the defendant prior to their marriage. Id. at 7. By the time the couple divorced, the house was their only asset of value, and Mrs. McGee was fifty-seven and unemployable. Nonetheless, the trial court denied her permanent alimony and a fair share of the house's original value. We considered these factors: that when Dr. McGee agreed to take over the house and save it from the sheriff's sale, Mrs. McGee immediately lost at least $87,000 in equity and Dr. McGee received a windfall in that amount when the house was transferred to him; that Dr. McGee systematically bled the house of value prior to marrying Mrs. McGee so that practically no equity was left when the house was deeded back to both of them, and that from 1982 onward, Dr. McGee paid over a quarter of a million dollars to support his previous wife and two children which funds were apparently part of the "general operating" costs of himself and Mrs. McGee. In addition, during the years of his relationship with Mrs. McGee, while Dr. McGee's annual income doubled, she labored at home on their behalf. She is now fifty-seven, unskilled, unemployed and very likely unemployable.

[Id. at 11 (footnote omitted).]

Against that factual backdrop, we concluded that the wife was entitled to more in the way of equitable distribution than the trial court had awarded:

The trial judge does not appear to have given consideration to any of these matters in simply valuing the house as of the time of the distribution and in allowing Dr. McGee to buy Mrs. McGee out of her house for $25,000. It is inexplicable to us that $25,000 is the sum of her distribution after a ten year partnership in which she labored in the role of a wife de facto and de jure and into which she brought a house with $87,000 worth of equity and eleven unencumbered, undeveloped acres.

While technically the house was denuded of its value prior to the ceremonial marriage between the McGees, contrary to the judge's conclusions, this does not end the inquiry. It is the complete factual scenario surrounding the parties' lengthy relationship which should have been considered here and was not. The case can be viewed from the vantage point of the shared enterprise of marriage beginning before the ceremonial act, or as one in which equitable remedies such as constructive trust, quasi contract or quantum meruit are invocable for equitable reasons. It is clear to us that the trial judge considered none of this. [Id. at 12 (citations omitted).]

We also remanded for reconsideration of the alimony issue in light of the "long period of cohabitation" as well as other more traditional factors. Id. at 14-15.

The facts of McGee are readily distinguishable. In this case, it was plaintiff, not defendant, who already owned substantial real estate and other assets when the relationship began. In particular, plaintiff had been married previously, and he owned a house in Hainesport, New Jersey with his former wife Joan. He acquired Joan's interest in the Hainesport house as part of the property settlement in their divorce.

Based on her assessment of witness credibility, the trial judge found that the Florida condominium, which was deeded in defendant's name, was acquired in contemplation of marriage, but the Hainesport house was not. See Weiss v. Weiss, 226 N.J. Super. 281, 288 (App. Div.), certif. denied, 114 N.J. 287 (1988). She also found that plaintiff never promised defendant an interest in the Hainesport house or in any of the other property he acquired before the marriage, and defendant never acted in reliance on an expectation that she would have such an interest. See Coney v. Coney, 207 N.J. Super. 63, 75-76 (Ch. Div. 1985). Further, unlike the wife in McGee, plaintiff here is employable, and the divorce judgment gave her substantial amounts of equitable distribution, including half of all the marital assets as well as sole ownership of the couple's Florida condo. She also received permanent alimony.

Turning to the parties' respective objections to the counsel fee award, we find no abuse of discretion in the judge's decision, which was largely based on her evaluation of the parties' relative economic resources. However, we add this observation. In addition to finding that defendant was not a credible witness, the trial judge pointedly concluded that defendant was largely responsible for the length and massive expense of the litigation:

Defendant has litigated in bad faith throughout this three year litigation beginning with false allegations of drug and alcohol abuse against plaintiff, a physician, and insisting his parenting be supervised without just cause. . . . Defendant failed to seek employment more than two years after she was Court ordered. Defendant took numerous unreasonable positions including, but not limited to, not remembering whether she had signed the Note for the Boca Raton property and that all assets should be divided "50/50" because it was a marriage, except for "her" Florida condo. Twice, on the eve of trial, defendant fired her attorney, delaying trial to permit her to substitute her fourth and fifth attorney.

Nonetheless, the judge only awarded plaintiff a counsel fee of approximately $9,000, for the litigation over equitable claims defendant asserted in the middle of the trial. Despite defendant's bad faith litigation, the judge limited plaintiff's fee award because of the disparity in the party's economic circumstances. If the court had awarded defendant the additional sums she sought by way of equitable distribution, defendant then could have afforded to pay a correspondingly greater share of plaintiff's litigation expenses and in all likelihood would have been ordered to do so.


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