On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-1183-07C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In this matrimonial matter, defendant Jianshe Wu (husband) appeals from portions of an April 28, 20ll final judgment of divorce (FJD) entered following a twelve-day trial. He challenges the court's distribution of the parties' assets, the exclusion of certain assets and liabilities from marital property, the award of counsel fees to wife, and the failure to award him alimony. We affirm except to remand for the limited purpose of having the trial court prepare a clarifying amendment to the FJD respecting the award of the two apartments in China to husband, as discussed infra.
Plaintiff Fengqiao Lu (wife) filed for divorce on or about June 26, 2007 in New Jersey. Default was entered against husband, and by consent order dated January 7, 2008, husband's default was vacated. Husband filed an answer and counterclaim.
Various pendente lite orders were entered in 2008. The parties apparently both obtained temporary restraining orders against each other but withdrew them by a consent order of August 11, 2008 in which they agreed to refrain from contacting each other by any means of communication. The agreement confirmed that wife would continue residing at the parties' home in Princeton and husband would remain at their home in West Windsor.
Meanwhile, husband filed a divorce action in China, and on wife's motion, the court entered an order on October 20, 2008 temporarily enjoining husband from prosecuting a divorce in China. On November 9, 2008, the court entered an order that, in part, granted wife's request for more specific answers to interrogatories within ten days and warned that failure to do so could result in sanctions or the striking of husband's answer, and directed the parties to complete discovery by January 15, 2009.
On December 1, 2008, the court entered an order to show cause for husband to demonstrate why he should not be incarcerated for failing to comply with the order to dismiss the divorce action in China. On December 3, the court entered an order requiring husband to withdraw the action by December 8.
The court entered an order on January 21, 2009, compelling husband to produce certain credit card, bank, and account statements, granting wife's request to appoint an appraiser for properties the parties owned in China, and denying counsel fees. The same day, a consent order was entered, in which the parties agreed that a property settlement agreement (PSA) they filed in 2007 was unenforceable.
On March 13, 2009, the court issued another order which, among other things, compelled husband to produce certain credit card and bank statements within fourteen days. The parties appeared for trial on April 23, 2009, at which time husband sought to obtain a new attorney. The start of trial was postponed by two months, at which time husband proceeded with the same attorney. In April 2009, husband signed a power of attorney (POA) to wife's brother to obtain husband's bank and stock records and all transactions in his accounts because he could not locate them himself.
Trial commenced on June 30, 2009, and continued on various dates over the course of two years. The court rendered its ruling on the record, memorialized in a FJD, on April 28, 2011. This appeal ensued.
The following facts and evidence were adduced at trial during which both parties testified, as well as wife's sister.
The parties were married on September 12, 1984 in a civil ceremony in China. At the time, wife was twenty-three and husband was twenty-nine years old. They had one daughter who is now twenty-three years old, and at the time of trial, was finishing her senior year at Villanova University.
Wife earned a degree in mechanical engineering and husband earned a civil engineering degree, both in China. In 1993, the parties started a software design company in China, of which wife held forty percent, husband held forty-six percent, and other shareholders held the remaining fourteen percent.
From the profits of their company, the parties bought six apartments in China for investment purposes, and renovated the property to make seven units. The parties also acquired a three-story office building; they operated the software business out of the first floor and rented out the rest.
In 1998, wife left husband and moved to London. Wife testified that while in England, she sought "to improve [her] command of English and also learn administrative skills," enrolling in an administration in information technology course at Lincoln University, earning a degree in telecommunications. Wife worked part-time and lived an inexpensive lifestyle in the "cheapest section," buying the "cheapest food."
While wife was in London, the business the parties operated was involved in litigation over the building they owned, resulting in the parties receiving over 4,200,000 yuan, which was the equivalent of about $488,000. Wife believed the money was deposited into the business account.
Wife testified that she took about $10,000 out of joint funds when she left for England and another $10,000 out of joint funds in l999 for her educational costs. Husband wired her about $3000 to extend her visa in 2003. In October 2001, husband sent wife about $70,000 in proceeds from the sale of the parties' business. The parties' daughter joined wife in London in July 2000 and husband provided some funds for her education. Wife testified that was the extent of payments from husband while she and her daughter were in England.
Husband testified that he gave wife $209,000 to cover traveling expenses, vacation expenses, tuition and living expenses for all five years wife lived in England. Husband testified he also gave wife $73,000 to obtain a visa and to prepare to relocate to the United States. The judge did not find husband's testimony credible, noting the lack of documentation to demonstrate such substantial withdrawals from the Chinese accounts. The judge found, instead, that wife "essentially supported herself by working throughout . . . her time in England, and she was paying her own expenses."
In May 2004, the parties moved to New Jersey. They purchased a home in West Windsor in November 2004 for approximately $175,000, where the parties lived with their daughter. The parties bought a second home in Princeton for $345,000 to use as an investment property. The parties did not dispute that these were the fair market values for purposes of equitable distribution, less the outstanding mortgages, resulting in a net property value of $192,427.67.
While in New Jersey, wife was employed as a bookkeeper, earning approximately $41,000 in 2005 and $62,400 in 2008. Wife testified that husband worked on remodeling jobs and would get paid cash. Husband testified that he worked a variety of jobs, helping remodel or repair homes, and as a watchman in his friend's warehouse. Husband stated his income was $3800 in 2005, $4150 in 2006, and $4869 in 2007.
Husband testified he unsuccessfully applied for a few jobs, but had trouble because of his age and his inability to speak English. He did not seek assistance from an employment agency. Husband testified that he took English courses but he stopped attending due to a conflict with his job.
Wife testified that before moving to the United States, husband sold several of the apartments that they owned in China and received aggregate proceeds of $98,364. She claimed she did not receive any funds from the sales. According to wife, husband sold two remaining properties in China after they moved to New Jersey, one in 2005 for $41,667, and one in 2008 after wife filed for divorce for $52,631, and wife received none of the proceeds.
Wife and her sister testified that each of them, along with their brother, contributed $10,000 to purchase an apartment in China as a gift for their parents in l996. Wife and her sister explained that their brother prepared the documents and put wife's name on the title but they all considered their parents to be the owners of the property.
Wife's sister testified that husband participated in the transaction and was fully aware of each sibling's contribution and that the apartment was a gift for his in-laws. Specifically, she explained she flew to Beijing to meet husband in his office because "[h]e was collecting U.S. dollars. So, [she] gave him [the $10,000 in cash] and he said he will send Chinese yuan to my brother in Qingdao." Wife's sister further testified that husband "said he would take care of it." Wife's counsel presented several documents purporting to demonstrate the transfers.
Wife testified that husband never claimed the apartment was the asset of either her or him; in fact, he "never mentioned the ownership of that apartment." Wife further noted that on husband's first CIS, he did not list this apartment as a marital asset. Nor was it included in the parties' 2007 PSA. Wife additionally testified that she and her husband had previously given "more than 70,000 yuan" for his older sister to buy an apartment in China and also contributed "20,000 yuan" to his mother for her to buy an apartment.
Husband testified that he did not know about the purchase of this apartment until 2000, and appeared to clarify that he learned more about it in April 2008, after his father-in-law passed away. He generally claimed wife and her sister were "lying." However, husband acknowledged he met with wife's sister in Beijing in December 1996. He also acknowledged the authenticity of his handwriting and signature on the wire and related receipts but claimed he could not verify the authenticity of the entire documents. Husband conceded he did not amend his CIS filed in January 2008 to reflect the apartment as a marital asset.
In his oral opinion following trial, the court made the following credibility findings respecting the parties:
I presided over a 12-day trial on this matter, along with many pretrial motions, and I have had the opportunity to observe the demeanor and the credibility of the parties. [Wife] was entirely credible in her testimony. Although it is clear she harbors strong feelings, she was responsive both on direct and cross-examination, and in all respects I find her testimony credible.
I cannot conclude the same about [husband's] conduct. He repeatedly refused to comply with the orders of the Court for discovery. He failed to cooperate with the direction that the case in China, the complaint in China be dismissed, indicating that his attorney in China refused to do so, which I find to be incredible. He attempted to introduce documents at the eleventh hour that had not been produced in discovery, and that I find were not supported by fact. He repeatedly accused this Court of bias against him and in favor of [wife], and as a whole I find that he refused to answer legitimate questions on cross examination, questions posed to him by the Court or even his own counsel, with whom he frequently disagreed and insisted on prosecuting his own case before me at various times during the trial.
That said, the trial judge "tried to reach a determination which is fair, equitable and just to both parties[.]" He attached a spreadsheet of the parties' assets and liabilities, finding the parties' net worth in the United States was $251,097.95.*fn1 The judge noted that the parties had four properties, two in New Jersey and two apartments in China. The judge awarded wife both properties in New Jersey, subject to the mortgages on each, with a net value of $67,405 for the West Windsor property and $135,529 for the Princeton property.
Although the judge did not declare who would take ownership of the two properties in China, valued at $102,079 and $94,949, he stated it was "necessary to effect an equal distribution of property[.]" Therefore, considering that the values of the New Jersey properties and the China properties were approximately equal, we can assume the judge intended to allocate the China properties to husband. At oral argument, wife's attorney advised this was his understanding of the equitable distribution award. As the FJD also does not clearly reflect this allocation, we remand to the trial court for the limited purpose of preparing an amendment to "Equitable Distribution - Paragraph 1" of the FJD to expressly provide that the two Chinese properties were awarded to husband as his share of the equitable distribution.
The judge further ordered the parties to share equally in the value of the "real properties and the bank accounts, CDs, stocks and bonds and pension/IRA accounts in both the United States and China" as they are valued in the chart attached to the opinion. He allowed each party to keep their own computer and vehicle, with the vehicle the parties' daughter drives to remain in wife's name. The judge held that the parties should agree upon the distribution of the remaining personal property, or retain the services of a mediator to divide it.
In accordance with the August 8, 2008 pendente lite order, wife was awarded a credit in the amount of $60,000 for paying the costs of the West Windsor home. No party received a credit for the property in China that was sold during the litigation or for the property in China occupied by wife's mother. The judge did not credit wife for a loan allegedly made by husband to his friend and ...