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Marcia C. Rei v. Augusto D. Rei

April 11, 2011

MARCIA C. REI, PLAINTIFF-RESPONDENT,
v.
AUGUSTO D. REI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2207-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2010

Before Judges Rodriguez and LeWinn.

Defendant Augusto D. Rei appeals from certain provisions of a judgment of divorce, entered after a trial. Specifically, he challenges the equitable distribution of a building located at Lexington Street and cash in bank accounts, and the award of counsel and expert fees to plaintiff Marcia C. Rei. She did not respond to the appeal. We affirm.

The parties were divorced on July 13, 2009, after fourteen years of marriage. No children were born of the marriage. Marcia met Augusto in 1993 or early 1994 when she began renting an apartment in a building he owned on Lexington Street in Newark. After a year, they began dating and married six months later. After completing some renovations, they moved into the first-floor apartment of the Lexington Street property where they lived throughout the marriage.

They purchased, in Marcia's name, an investment property on Mott Street in Newark. Marcia co-signed the purchase money mortgage.

The amount of income generated from the Mott Street property is disputed. Marcia claimed that some funds generated from rents on apartments in the Mott Street property were used to subsidize the Lexington Street property. Augusto denies that Marcia ever contributed any money to the maintenance of the Lexington Street property either personally or with her share of rental income from the Mott Street property. In any case, rents from both properties were deposited in the same joint account and expenses for both properties were also paid from that account.

The parties maintained two joint accounts during the marriage at Valley National Bank. These accounts had balances of $104,391 and $129,267.44, as of February 27, 2007. Augusto also maintained several accounts exclusively in his name with balances totaling $64,455.73, as of different dates in April 2007.

At the time the complaint for divorce was filed on April 9, 2007, Augusto was fifty-eight years old and Marcia was forty years old. Augusto made several significant withdrawals that severely depleted some of the joint accounts during the period just prior to and after Marcia filed the divorce complaint. At trial, Augusto testified that a $140,621.91 deposit into one of the joint accounts "was a business loan from his partner" through the New Alliance Developer, LLC (NAD). The NAD statement of assets and liabilities, however, indicated no loan to Augusto.

At the conclusion of the trial, the judge ordered that: (1) the joint bank accounts and Augusto's account be divided equally between the parties; (2) the Lexington Street property be awarded to Augusto; (3) the Mott Street property be awarded to Marcia; and (4) that Augusto pay $19,793 in attorney's and expert's fees to Marcia.

Augusto appeals, contending that "the trial court erred in its determination of the equitable distribution of the pre-marital Lexington Street property." Augusto argues that because he purchased the Lexington Street property prior to meeting and marrying Marcia, only the appreciation of the property should be deemed a marital asset subject to equitable distribution. We disagree.

"Where the issue on appeal concerns which assets are available for distribution or the valuation of those assets, it is apparent that the standard of review is whether the trial judge's findings are supported by adequate credible evidence in the record." Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-444 (App. Div. 1978) (citing Rothman v. Rothman, 65 N.J. 219, 233 (1974); Perkins v. Perkins, 159 N.J. Super. 243, 247 (App. Div. 1978)).

The general rule is that "all property, regardless of its source, in which a spouse acquires an interest during the marriage shall be eligible for distribution in the event of divorce." Painter v. Painter, 65 N.J. 196, 217 (1974). "[T]he party seeking exclusion of the asset must bear the burden of establishing such immunity [from equitable distribution] as to any particular asset." Pascale v. Pascale, 140 N.J. 583, 609 (1995) ...


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