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Eric Topczij v. Margaret Neville-Topczij

July 18, 2011

ERIC TOPCZIJ, PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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