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David Eng v. Annmarie Eng

May 12, 2011

DAVID ENG, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
ANNMARIE ENG, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-557-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 5, 2011

Before Judges Espinosa and Roe.

Defendant, Annmarie Eng, appeals from a final judgment of divorce following a bench trial. Plaintiff, David Eng, cross-appeals. We affirm.

The parties were married on June 23, 2001. No children were born of the marriage. On August 24, 2008, each party's application for a temporary restraining order was denied. Plaintiff filed a complaint for divorce on September 5, 2008. Thereafter, the parties signed multiple criminal complaints, each against the other. Additional complaints were filed against third parties, arising out of the marital dispute. Defendant's motion to consolidate all of these proceedings into the matrimonial matter was denied.

Trial commenced on September 22, 2009. As a result of testimony taken on the first day of trial, the court ordered the parties to produce additional discovery to be provided by the next trial date. The requested documentation included the following: copies of statements from three bank accounts from which plaintiff allegedly removed $94,000 for a down payment on the marital home; bank statements from joint savings, joint checking, individual savings and individual checking accounts; and draft property settlement agreements addressing issues of distribution of the marital home proceeds, dissipation of assets and counsel fees.

On the final day of trial on March 10, 2010, the court took additional testimony and placed its findings on the record. The court determined the former marital home had a value of $415,000 and equity of $215,000. Based on the court's inability to determine the source of funds utilized in purchasing the home, it found that certain monies held by defendant prior to the marriage were utilized for the purchase of the marital home. The court stated "and the house was placed in both their names as husband and wife. So there is a presumption that he gave a one-half gift of those monies to her under that giving." Based on principles of equitable distribution and the source of acquisition, the court distributed the net equity in the home on a sixty/forty basis, with sixty percent awarded to plaintiff and forty percent to defendant. Plaintiff was ordered to buy out the defendant's share of the marital home in the amount of $86,000, subject to credits for the pay down on half of the principal amortization, within 120 days.

The court determined a Manhattan co-op had been owned by plaintiff for twenty-eight years prior to the marriage and eight years during the marriage, for a total of thirty-six years. Plaintiff testified that there was approximately $12,000 of equity in the co-op. The court determined that defendant was entitled to $1,300 from this property. The amount of distribution was based on the $12,000 of equity, divided by thirty-six years of ownership, for a total of $333 per year. The court multiplied $333 by the eight years of marriage and divided by two, which represented defendant's fifty percent interest of $1,300.

At trial, plaintiff admitted to withdrawing $16,000 from the joint checking account. He asserted he was entitled to this money as reimbursement for defendant's car payment. No evidence was provided regarding defendant's alleged agreement to repay plaintiff. Plaintiff was ordered to pay the defendant $8,000 for dissipating a marital asset.

At trial, the court took testimony regarding each party's application for counsel fees, including but not limited to, the amount of fees, the ability to pay and the good or bad faith of the parties. The court directed counsel to draft correspondence to the court stating the exact amount of fees that each counsel had been paid and the balance each counsel was owed. The court advised that it would write an opinion on the fees after having an opportunity to review the issue.

A final judgment of divorce memorializing the trial judge's oral decision was entered on March 24, 2010. On March 29, 2010, the court issued a written opinion directing each party to be responsible for their own counsel fees. These appeals followed.

On appeal, both parties contend the trial court erred or abused discretion in the distribution of the Manhattan co-op, the marital home and the dissipation of their bank account. We disagree.

The scope of appellate review of a trial court's fact-finding function is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). Traditionally, findings by the trial judge are considered binding on appeal when supported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Deference is especially appropriate "when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). A trial court "hears the case, sees and observes the witnesses, hears them testify, and has better opportunity to judge their credibility than the reviewing court[.]" Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961). Thus, the trial court should not disturb the factual findings and legal conclusions of the trial judge unless they are convinced the decision was so "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone v. Twp of N. Bergen, 78 N.J. Super. 154, 155 (App. ...


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