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John M. Dalessio v. Florence Dalessio

June 27, 2012

JOHN M. DALESSIO, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
FLORENCE DALESSIO, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-1008-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: March 28, 2012 -

Before Judges Cuff, Lihotz and St. John.

In this appeal, both parties seek review of various provisions of a judgment of divorce entered following a five day trial. We reverse and remand for further proceedings consistent with this opinion.

Plaintiff John M. Dalessio and defendant Florence Dalessio married in July 2003. Plaintiff was sixty-five; this was his fourth marriage. Defendant was sixty-two; this was her third marriage. Plaintiff filed a complaint for divorce on May 15, 2009.

Although the marriage is a relatively short-term marriage, the parties had been a couple for thirteen years. They commenced a dating relationship in 1996, purchased a home together in 1999, and plaintiff paid all household expenses and many of defendant's expenses throughout their cohabitation and marriage. Defendant paid only for her personal beauty supplies, clothing and transportation expenses.

Plaintiff had substantially more financial resources than defendant. At the time of the marriage, he estimated his net worth at $3,000,000. Defendant held a real estate license and found the house the parties bought in 1999. The purchase price of the house was $486,049. Defendant insisted she contributed $50,000, while plaintiff contributed the balance. Plaintiff alleged he paid the entire cost of the house from pre-marital funds. The parties also renovated the house in 2000, using plaintiff's funds. The parties held title to the house as joint tenants with a right to survivorship to permit defendant to receive the house upon his death. The parties resided in the house during the marital litigation.

During their pre-marital relationship and marriage, defendant also operated a beauty salon in a casino in Atlantic City. According to Schedule C of defendant's federal income tax returns and W-2s issued to her between 2003 and 2007, defendant earned wages and profits from an entity known as Salon International. From 2008 to 2009, she earned wages and profits from an entity known as Ventnor Beauty Supply.

In her oral opinion, the trial judge awarded defendant $3500 monthly limited duration alimony for three years. She found that both parties had an interest in the house. The judge awarded the house to plaintiff, subject to payment of $343,727 to defendant. The judge also awarded the boat to plaintiff, subject to payment of half the value of the boat, $48,750, to defendant. The judge awarded a wave runner to plaintiff, and required defendant to pay $8550 to plaintiff representing 50% of the shelter expenses incurred by plaintiff pendente lite. Defendant was also required to pay $1340 in counsel fees awarded to plaintiff in October 2009, in relation to her application to remove plaintiff's weapons from the marital home. After reimbursing plaintiff for the payments made pending the litigation, the net equitable distribution award to defendant was $383,928.

Both parties appeal from the February 16, 2011 dual judgment of divorce. Defendant argues the equitable distribution award, specifically the distribution of the marital home, is founded on legal error. She also argues that contribution by her to pendente lite shelter expenses is contrary to the marital custom for payment of expenses. Defendant also contends the judge should not have ordered her to pay any counsel fees to plaintiff.

In his cross-appeal, plaintiff argues the judge did not address his claim that the money earned by defendant during the marriage and deposited in her investment accounts is a marital asset subject to distribution. He also contends that the judge should have imputed more income to defendant from her investment accounts and awarded $12,467, not $8550, as reimbursement of shelter expenses.

N.J.S.A. 2A:34-23h authorizes a judge to grant an "award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage." The statute codifies public policy that acknowledges "'marriage is a shared enterprise, a joint undertaking, that in many ways is akin to a partnership.'" Smith v. Smith, 72 N.J. 350, 361 (1977) (quoting Rothman v. Rothman, 65 N.J. 219, 229 (1974)).

To fashion an equitable distribution award, the trial judge must identify the marital assets, determine the value of each asset, and then decide how the property should be distributed. Rothman, supra, 65 N.J. at 232. To effectuate the equitable distribution of the parties' assets, the judge must consider, but is not limited to, the sixteen factors identified in N.J.S.A. 2A:34-23.1. If the parties dispute whether the asset is a marital ...


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