July 18, 2011
ERIC TOPCZIJ, PLAINTIFF-RESPONDENT,
MARGARET NEVILLE-TOPCZIJ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-172-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 4, 2011
Before Judges Sabatino and Alvarez.
Defendant Margaret Neville-Topczij appeals portions of the January 28, 2010 dual judgment of divorce granted to her and her former husband, plaintiff Eric C. Topczij. For the reasons that follow, we affirm.
The parties married on July 27, 2002, and have one child. They separated on July 1, 2007, a few months after the child's birth.
Defendant appeals the equitable distribution provisions of the judgment. By way of background, the parties each owned their own home when they married. Initially, they lived in defendant's home and rented plaintiff's home, as well as an apartment unit in defendant's residence. They eventually refinanced defendant's home, and paid off the mortgage balance on plaintiff's home with the proceeds. Defendant's name was later added to the deed for plaintiff's home. The parties subsequently purchased a property in Wayne in joint names, which became the marital residence after completion of extensive renovations. In the interim, plaintiff's name was added to defendant's deed, and that property was sold. The parties invested the net of $178,000 realized from the sale into renovations to the Wayne property, and lived in plaintiff's former home while the work was completed.
In June 2007, plaintiff's former home was also sold. The $279,094 proceeds were deposited into a joint account. Post-separation, defendant unilaterally withdrew $181,000 from that account and deposited the funds into an account in her name only. Upon learning of the withdrawal, plaintiff withdrew the balance and deposited it in an account in his name. Defendant explained at trial that, since the refinancing of her premarital home was used to pay off the mortgage on plaintiff's home, she should be entitled to approximately two-thirds, not fifty percent, of the balance. On appeal, she reiterates this argument.
To the contrary, the trial court concluded that because the deeds to the premarital, individually-owned properties were transferred into joint names, funds were commingled, and mutual efforts expended into the acquisition and development of the jointly-owned Wayne home, equitable distribution should result in half-shares, even if the equity in the parties' respective premarital properties was disparate at the commencement of the marriage. This equitable distribution allocation included adjustments for debits and credits related to credit cards and other debts. The marital home is currently listed for sale, and the proceeds will be distributed equally, subject to adjustments pursuant to the judgment.
Defendant also appeals that portion of the judgment related to child support, which likewise requires some discussion of the factual and procedural history. Plaintiff's current yearly salary is approximately $54,600. Defendant sells cosmetic dental implants and earns approximately $74,000 annually. In the recent past, she has earned as much as over $100,000 annually, but her earnings have been reduced by the downturn in the economy.
Early in 2008, now-retired Judge Michael K. Diamond entered a pendente lite support order and a visitation schedule. In pertinent part, the judge required plaintiff to continue paying half the mortgage on the marital home or $2250 per month, and half of the "nanny's salary for the parties' daughter," or $1040 per month. Thus plaintiff was required to pay a total of $3290 monthly.
The parties engaged in mediation on September 3, 2008, and in the following weeks, counsel exchanged various proposals premised upon the handwritten notes taken during that process. Accordingly, on September 23, 2008, the parties signed a consent order requiring plaintiff to continue to pay half the mortgage on the Wayne property, or $2250, but only an additional $120 as child support, for a total of $2370 monthly.
In December 2008 and July 2009, defendant filed motions to "correct" plaintiff's support obligation. Initially, she claimed plaintiff's counsel intentionally deleted the $1040 contribution to the cost of the nanny from the new order, then stole her mediation notes to make it more difficult for her to appreciate the difference between the two documents. When it developed that defendant's mediation counsel had actually faxed copies of the notes to both defendant and her new attorney, defendant then claimed a different set of notes existed which her prior attorney refused to hand over after failing to notice the agreement's erroneous omission of plaintiff's obligation to pay one-half of the cost of the nanny.
In his final decision, Judge John E. Selser rejected these arguments. He concluded that defendant was well aware of the details of the settlement based on the cover letters circulating the consent order, and therefore denied defendant's request to reinstate the $1040 contribution to one-half of the cost of the nanny. The judge noted that the logical reason for the omission of this contribution was that the child was old enough to attend preschool, as a result, this significant expense was no longer necessary. The court also noted that if plaintiff were to continue to be required to pay for one-half the mortgage, one-half the cost of the nanny, plus $120 monthly, the amounts sought by defendant, his monthly obligation would total $3410.*fn1
Since his net income per month is $3402, such an obligation would be inequitable as it would total more money than plaintiff earned. Because the court did not modify the current support order at all, of necessity defendant's demand that the support be retroactively modified was also denied.
Additionally, defendant appeals the visitation schedule. Again, we detail the relevant circumstances. The court heard testimony from a parenting coordinator, who testified that although both parents loved and had good relationships with their child, defendant was experiencing difficulties in that role. For example, she attempted to micromanage plaintiff's life through the child. In the opinion of the parenting coordinator, defendant needed supportive therapy to aid her in coping with the divorce.
The court also heard from Rebecca Meyer, a therapist retained to address the child's mental health needs. She too testified that both parents were loving, but that defendant had difficulties with being excessively rigid. In fact, it was Meyer who found the tracking device defendant had implanted in a blanket sent with the child on a visit with her father. This was actually the second such device implanted by defendant, who had previously placed one in a diaper bag. Meyer also recommended that defendant engage in counseling to assist her with coping with her reactions to the divorce.
Both the parenting coordinator and Meyer thought overnight visitation was appropriate and actually necessary so that plaintiff's positive relationship with the child could continue to develop. On the subject of visitation, defendant made a number of claims the trial judge did not consider supported by the proofs, such as that plaintiff did not feed the child when he picked her up for visitation. That was literally true, as the parties had agreed that defendant would feed the child because plaintiff was not able to pick her up until later in the evening, past her normal dinner time. Obviously, contrary to defendant's claims, this practical arrangement did not establish that plaintiff was a neglectful parent.
Defendant had problems accepting rulings that went against her opinion of plaintiff's shortcomings as a parent and her belief that he posed a threat to the child in some unspecified fashion. For example, she drafted a letter which she had the child's pediatrician sign and presented it as if the pediatrician had initiated the correspondence. She vigorously objected to the child having any contact with the woman with whom plaintiff became romantically involved. According to Meyer, this individual was unobjectionable and had three children of her own.
Defendant also claimed plaintiff had taken funds from the child's bank account without her prior knowledge and consent. During the trial, however, plaintiff introduced bank statements establishing that it was defendant who withdrew $1601.79 from the child's account, which only had an original balance of $1905.79. The money was deposited into defendant's own account. As the court said, "it is this type of testimony that greatly strains [defendant's] credibility before this court."
The final provision defendant challenges is the court's award of counsel fees. Plaintiff incurred total counsel fees of $122,987.50 and owed $81,212.50 at the close of the divorce proceedings. Defendant's divorce counsel, not the first she retained during the proceedings, charged a total fee of $42,375 and had been paid only $10,000 of that amount.
After a detailed consideration of the factors enumerated in Rule 5:3-5(c) and Williams v. Williams, 59 N.J. 229 (1971), the court awarded plaintiff the sum of $25,000 in counsel fees, payable by defendant when the marital home was sold. As the judge said, in addition to weighing the nine factors contained in rule and case law, because defendant was "suffering from anxiety and frustration at the legal system," she "has conducted herself in a manner during this litigation that has led to unnecessary court applications." He summed up defendant's perspective on the divorce by quoting her as stating at the end of her testimony, "they are trying to take my daughter away from me." Because of defendant's intransigence and motions based on distortions of the facts, or at times, actually false claims, the parties engaged in unnecessary litigation and unnecessary legal fees were incurred disproportionate to the value of the marital estate.
We affirm based on the trial judge's thoughtful and detailed decision. We make only the following brief comments.
This court's review of Family Part fact-finding is quite limited: such findings will remain binding on appeal "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998). It receives this deference due in large part to "the family courts' special jurisdiction and expertise in family matters." Id. at 413.
The "sufficient credible evidence standard" also governs determinations of the assets available for equitable distribution, Rothman v. Rothman, 65 N.J. 219, 233 (1974), while the percentage allocation of such assets is left to the trial judge's sound discretion. Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978).
First, defendant did not establish any facts which warranted modification of the child support order to which she assented in September 2008. The reduction in plaintiff's earlier pendente lite obligation was logical in light of the child's age, which made her a candidate for preschool, at a significantly reduced cost than the cost of a private nanny.
The consent order was also reasonable in light of plaintiff's own annual income.
Second, defendant's claim that both the parent coordinator and the child's therapist recommended against overnight visitation, or recommended in favor of only a gradual increase in visitation, is simply not borne out by the record. Both clearly stated that plaintiff was an appropriate parent who enjoyed a loving relationship with his child, who was relaxed and affectionate when in her father's presence. It is only defendant who believes the child is not ready for overnight visits.
Third, with respect to equitable distribution, the court's decision is supported by substantial, credible evidence and should not be disturbed. Post-marriage, the parties put their real properties in joint names and, when they purchased a property in Wayne that was to become the marital home, it too was placed in joint names. They blended their assets to acquire the home in Wayne and to make improvements to it. The facts developed during the trial do not support defendant's contention regarding equitable distribution, and the cases upon which she relies bear no relation to the parties' circumstances vis-a-vis their real estate. There was no basis in law or equity for other than an equal sharing, with debits and credits as enumerated by the trial judge.
Finally, as to counsel fees, the trial court properly analyzed the relevant factors enumerated in Rule 5:3-5(c), essentially taken from Williams, supra. Each was explicitly reviewed. In his decision, the judge relied heavily upon defendant's lack of good faith, an appropriate consideration given his conclusion that her bad faith resulted in needless litigation.
Some of defendant's unsubstantiated allegations are the factual basis for arguments made in her brief. In addition to asserting plaintiff could not care for the child, a claim lacking any record support, she reiterates that the consent order was entered into as a result of a fraud perpetrated by counsel. She is not entitled to relief on appeal based on a record that does not support her position.
Similarly, defendant asserts that the court was "obviously biased" against her and "ignored" plaintiff's repeated violations of court orders. No such orders were identified, nor examples given of the purported bias. Defendant mistakes for bias the court's assessment that she distorted the facts, at times to the extent of deliberate untruthfulness, because of the litigation pressure she experienced. In any event, we conclude that Judge Selser's fact-finding was supported by adequate, substantial, and credible evidence, his application of the law was reasonable, and his exercise of discretion unassailable.