July 30, 2012
FENGQIAO LU, PLAINTIFF-RESPONDENT,
JIANSHE WU, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 16, 2012
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 did not award husband any credit for the loans allegedly made to the parties by husband's family.
As to the parties' daughter, the court awarded wife a total credit of $15,790 out of equitable distribution for college expenses, but denied wife's request for contribution for car insurance. The court deemed the parties' daughter emancipated effective the date of her college graduation in May 2011.
The court awarded wife counsel fees in the amount of $1500 in accordance with the August 8, 2008 order, $800 that were previously ordered, and an additional award of $35,000. The court did not award husband any alimony or counsel fees.
On appeal, husband argues:
THE FINDING OF FACTS MADE BY THE COURT BELOW WAS NOT SUPPORTED BY ADMISSIBLE EVIDENCE. POINT II
THE COURT BELOW MADE AN ERROR WHEN IT FAILED TO RECOGNIZE THE NING GUO YI ROAD APARTMENT AS THE PARTIES' MARITAL PROPERTY.
THE COURT BELOW ERRED IN FAILING TO RECOGNIZE [WIFE'S] SAVINGS IN THE INDUSTRIAL AND COMMERCE BANK OF CHINA AS [THE] PARTIES' MARITAL PROPERTY.
THE COURT BELOW ERRED IN FAILING TO RECOGNIZE THE LOANS BORROWED BY [HUSBAND] FOR THE PARTIES' IMMIGRATION INTO THE UNITED STATES AS [THE] PARTIES' MARITAL LIABILITY. POINT V
THE COURT BELOW MADE AN ERROR WHEN IT FAILED TO MAKE AN EQUITABLE DISTRIBUTION OF THE PARTIES' PROPERTIES IN CONSIDERATION OF [THE] STATUTORY FACTORS UNDER N.J.S.A. 2A:34-23.1.
THE COURT BELOW MADE AN ERROR WHEN IT FAILED TO [A]WARD ANY ALIMONY TO [HUSBAND].
THE COURT BELOW ERRED IN DETERMINING THE ATTORNEY FEES AWARD.
Based on our review of the record and applicable law, as well as our consideration of the briefs and oral arguments, we are not persuaded by any of husband's arguments and affirm substantially for the reasons expressed by the Family Part judge, except for the remand for amendment of the FJD respecting the equitable distribution of the two China properties to husband.
Family courts have special jurisdiction and expertise in family matters, and therefore, appellate courts should accord deference to a family court's fact-finding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). "We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
"Even where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and their implications," a reviewing court "will nonetheless accord deference to the trial court's findings unless they went so wide of the mark that a mistake must have been made." MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (internal quotation marks and citation omitted). Deference is "especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting Cesare, supra, 154 N.J. at 412).
Husband first argues the trial court disregarded evidentiary rules and admitted into evidence hearsay documents that were not authenticated, and a mistrial should be declared. We disagree. Specifically, husband argues that six exhibits (P18, P5-A3, P5-A4, P17, P13, and P12), including statements of and documents from Gangfa-Beijing stock, China Commerce Bank, China Merchant Bank, Wangton stock, and debit cards, were improperly admitted into evidence. He contends the documents were hearsay and not properly authenticated.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is inadmissible, unless it falls into an exception under the rules of evidence or other law. N.J.R.E. 802. Business records may be permitted into evidence when they are (1) "made at or near the time of observation by a person with actual knowledge or from information supplied by such a person," (2) "the writing or other record was made in the regular course of business[,]" and (3) "it was the regular practice of that business to make it[.]" N.J.R.E. 803(c)(6). Records such as bank statements, cancelled checks, and books of account generally fall under the business record exception. See, e.g., Mahoney v. Minsky, 39 N.J. 208 (1963). Documents admitted into evidence need to be authenticated, or certified as true copies by someone with firsthand knowledge. Sellers v. Schonfeld, 270 N.J. Super. 424, 428-29 (App. Div. 1993); N.J.R.E. 901.
However, in reviewing an evidentiary ruling, "'[t]raditional rules of appellate review require substantial deference to a trial court's evidentiary rulings.'" Benevenga
v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 163 N.J. 79 (2000).
Over husband's objection to the inclusion of the documents into evidence, the court admitted the exhibits, finding:
I'm admitting them into evidence over [husband's counsel's] objection for two reasons. One is if recognizing the international nature of this case and the availability of said records many of the records [are available] only through Chinese sources. The records on their face appear to fall within business records. They do not, as [husband's attorney] points out, they have not properly been authenticated by a -- by testimony of a source in China.
At the same time [wife] has testified and [wife's] counsel has represented that [these documents] are documents that were obtained from a power of attorney signed by [husband] as required by this Court. They were produced prior to trial. A motion in limine could have been made to exclude these documents and it was not.
Under the circumstances and recognizing that many [of husband's] exhibits have also not been properly authenticated by testimony as to their legitimacy from this source in China, and recognizing the attended time and expense I am admitting these documents into evidence and I will do so consistently for both sides despite [husband's] perception that he has not received a fair trial. He has been given every latitude in terms of evidence and testimony he wishes to present.
The judge further noted that because this is an international case, "if I rule strictly with regard to the admissibility of documents I'm going to have nothing in this record." The judge found that "even though I'm admitting these . . . into evidence over [husband's] objection I can certainly take into account these arguments in terms of determining the weight I give to these documents."
Under the unique circumstances of this case, we are not convinced the trial judge abused his discretion in allowing the documents into evidence. It was reasonable under the circumstances, given the foreign nature of the case, to allow some leniency, and the judge treated both parties equally in admitting their exhibits. Husband did not abide by the discovery rules and failed to produce accounts or statements necessitating his signing of the POA just prior to trial in April 2009 for his brother-in-law to attempt to obtain the documents from China. The records that wife's brother obtained were then sent to husband in May 2009. If husband sincerely doubted the authenticity of the records, he had more than ample time during the following year of trial to obtain factual data disputing the veracity of the information, which he did not do. Instead he made bald allegations that the documents were fabricated, the accounts did not exist, and the statements had miscalculations. The trial judge reviewed the exhibits, heard testimony about the exhibits from both sides, and was able to make his own assessment as to the weight to give to the evidence.
Husband next argues the trial court erred in excluding from equitable distribution the apartment where wife's mother resides because it was titled in wife's name. We are satisfied the record demonstrates that although this property was titled in wife's name it was a gift to her parents that husband acquiesced in and was never considered by him to be a marital asset.
"[P]roperty, both real and personal, which was legally and beneficially acquired by them [the spouses] or either of them during the marriage" is marital property and eligible for equitable distribution. Painter v. Painter, 65 N.J. 196, 215 (1974) (alteration in original) (emphasis omitted) (internal quotation marks omitted). "[T]he court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution[.]" N.J.S.A. 2A:34-23.1. The appellate court can make fact findings if the trial court failed to do so. R. 2:10-5.
Although the judge's findings supporting his decision to exclude the property from marital assets were not as fully articulated as we would have liked, the record supports this determination. Much of the testimony in this trial is difficult to follow, between the language barrier, use of an interpreter, and often non-responsive and evasive answers to the questioning. We are satisfied, however, that the trial judge had a "feel for the case" based on the evidence presented and his credibility assessments, and the challenged rulings are supported by the evidence. There was credible testimony by wife and her sister that the three siblings each contributed $10,000 to purchase the apartment for wife's parents as a gift and that husband was aware of the purchase and, in fact, assisted in the transaction. Husband's general allegation that they were "lying" was insufficient in view of the proofs. Although it appears that wife's brother placed the apartment in wife's name, the property is where wife's mother lives and she treats the property as her own. No one, including husband, ever viewed the property as a marital asset or disclosed it as such in any legal documents. Moreover, wife's contribution towards the purchase of an apartment for her parents from marital funds was consistent with the parties' prior purchase of homes for husband's mother and sister from marital funds.
In Point III, husband claims wife did not account for $61,000, and the court erred in not including this amount as a marital asset. We disagree.
At trial, husband testified that in early 2004, wife flew from England to China to get her immigration visa to the United States, and he gave her $73,000 and asked her to bring $68,000 to the United States. Husband argues that wife only brought $36,000 and deposited the money into a bank account she maintained in China. Husband submitted a bank statement he claimed demonstrated that two months before wife filed for divorce, she opened an account at the Industrial and Commercial Bank of China, where she deposited approximately $61,000 and transferred it out in March 2009 to unknown sources. Husband argues the court erred in not including this $61,000 as marital property.
The judge found wife received $70,000 in 2001 from the proceeds of the sale of the parties' business, not given to wife by husband to obtain a visa. The judge further found that husband's testimony that he paid $300,000 to wife while she was in England (presumably the approximate total of $209,000 plus $73,000 that husband testified he gave to wife) was not credible. The judge found husband did not produce documentation to show that $300,000 was withdrawn from his accounts or that that sum of money was transmitted to wife in England. He explained:
If he, in fact, had sent that money to England, the Court finds that there should have been records showing the withdrawal of this sum from the Chinese accounts. [Husband] produced no such documentation[.]
Accordingly, the judge credited wife's testimony that she "essentially supported herself" by working and paying her own expenses while living in England.
We discern no error by the trial judge in not including this figure as marital property based on his credibility assessment, which was supported by the record, and deserves deference. As previously stated, we have a deferential standard of review regarding a trial judge's credibility assessments and findings of fact, unless they are "so wide of the mark that a mistake must have been made." MacKinnon, supra, 191 N.J. at 254 (internal quotation marks and citation omitted). The judge's findings in this regard are amply supported by the record and should not be second-guessed.
In Point IV, husband argues that he borrowed $148,000 from his relatives to fund the parties' immigration to the United States, and the court erred in excluding this from the parties' marital liability. Based on our deference to the fact-finder and review of the record, we discern no error.
Husband submitted evidence of Western Union money transfers in increments of $2000 that he claimed were sent to the parties from his relatives totaling $128,000. Husband testified he borrowed this money in 2004 and 2005, as a loan. Husband testified he borrowed $20,000 more in 2005, when he and his sister each carried $10,000 to the United States. Accordingly, husband testified he borrowed a total of $148,000.
Husband testified that he did not return any of this money to his relatives, but only paid interest from the proceeds of the sale of one of the apartment units sold in 2005. Husband testified that he obtained a "note" in 2003 allowing him to "borrow money whenever [he] need[ed] it" with twelve percent interest and using one of his apartment units "as a pledge." Husband claimed they spent most of the loan in order to purchase the West Windsor property in 2004.
Additionally, defendant submitted the complaint of a civil lawsuit in China filed by defendant's sister against the parties to compel the parties to pay back the loans. A judgment in this lawsuit was not released until after the final judgment of divorce and will not be considered in this appeal.*fn2
Wife testified husband "never mentioned" borrowing money from his relatives. She testified, "I knew that [husband] wanted to transfer the bulk of his money from China to the United States[.]" Wife testified that the money being transferred from China was "the proceeds from the sale of our property." She added that husband's relatives lived "at least two to three hours" away from where the money was transferred. Wife was "[o]ne hundred percent" sure the money came from husband's account, and it was "obvious that my husband sold the property and deposit[ed] the money into his account." Wife explained that the money was transferred from China to husband's sister who lived in Massachusetts, who would then send the parties a check, and wife would deposit the money in their joint account. Consistent with husband's testimony, wife testified that they used the money to buy the West Windsor property.
Here, the judge found husband's claim that the $148,000 was loaned by husband's relatives was not credible and rejected the assertion that the loans were made by husband's family and needed to be repaid in part by wife. The judge found husband "belatedly produced" two loan statements, the first one indicating a $142,000 and then another document indicating a $148,000 loan, without explaining the difference in the loan amounts.
The judge explained that although the Western Union exhibits showed money being transferred to the United States, there is no proof that husband's relatives withdrew these sums or comparable sums from their individual accounts, and "[s]uch evidence should have been produced if it existed." Moreover, the judge questioned whether husband's sister's lawsuit was genuine. The judge noted that she included wife's mother's property in the lawsuit, which she would have only known about if husband had told her. He found it "doubtful that he would have disclosed the existence of collateral, namely, [wife's] mother's house, contrary to [husband's] interest."
We disagree with the judge's assertion that husband did not explain the difference in the loan amounts, as he testified that $128,000 was wired to the United States and $20,000 was carried in person, totaling $148,000. However, the remainder of the factual finding is supported by evidence in the record, and deserves deference. Although both parties agree that money was transferred from China to the United States, the source of that money is disputed, and the judge found that it was from the sale of an apartment unit rather than a loan from relatives. Supporting the judge's finding, there is no evidence demonstrating where husband's relatives withdrew $148,000.
Demonstrating further support, the parties' initial property settlement agreement from 2007, which was vacated, did not mention the $148,000 loan. Husband would likely have sought to factor the $148,000 loan into the agreement, but it does not appear he did. Husband argues that the reason he got the more expensive properties in that initial agreement was so that he could pay off the $148,000 loan on his own. However, the agreement provided that the parties' debt would be reduced to $14,803.97 after husband used the $34,600 and $39,562.05 he was receiving in assets to reduce it. This demonstrates the parties had about $89,000 in debt, not $148,000. Additionally, even though husband submitted evidence of a lawsuit purporting to show existence of the loans, the court found the lawsuit appeared to be motivated by husband, and such credibility finding deserves deference.
Husband next argues the judgment must be reversed because the distribution of assets was based on inaccurate findings of fact and failed to consider the statutory factors. Although husband argues the judge should have awarded him a larger share of assets than wife, he did not argue for a specific percentage either at trial or on appeal.
The goal of equitable distribution is to bring about a "fair and just division of marital assets." Steneken v. Steneken, 183 N.J. 290, 299 (2005) (internal quotation marks and citation omitted). When distributing marital assets, a court must: (1) identify the property subject to equitable distribution; (2) determine the value of each asset; and (3) decide how to allocate each asset most equitably. Rothman v. Rothman, 65 N.J. 219, 232 (1974). "In every case, . . . the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution[.]" N.J.S.A. 2A:34-23.1. A court should apply all the factors set forth in N.J.S.A. 2A:34-23.1, and distribute marital assets consistent with the parties' unique needs. DeVane v. DeVane, 280 N.J. Super. 488, 493 (App. Div. 1995). An appellate court will affirm an equitable distribution provided "the trial court could reasonably have reached its result from the evidence presented, and the award is not distorted by legal or factual mistake." La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001).
New Jersey has rejected the fifty/fifty formulaic division of marital assets in favor of the division of marital property based on the application of equitable principles. Painter, supra, 65 N.J. at 211-12; Chalmers v. Chalmers, 65 N.J. 186, 193-95 (1974); Rothman, supra, 65 N.J. at 232 n.6; DeVane, supra, 280 N.J. Super. at 493. Courts generally view marriage as a partnership, giving recognition to the contributions of each party. Rothman, supra, 65 N.J. at 229.
The judge evaluated each of the statutory factors under N.J.S.A. 2A:34-23.1, and found the parties had a lengthy marriage lasting almost twenty-three years, the parties are relatively healthy, and neither party brought significant assets into the marriage, but rather they both acquired assets during the marriage. The court found the standard of living during the marriage was upper middle-class in China, and wife's was lower middle-class and husband's was more affluent while wife was in England. In the United States, the judge found the parties have maintained a middle-class lifestyle, as wife earned "mid 40s to lower 50s" as a bookkeeper and husband "earned income through home remodeling jobs which does not appear to have been significantly reported."
Considering the economic circumstances of each party at the time of division of the property, the court found that wife worked at "full capacity" and earned income in the lower $50,000 range, which could increase after the divorce. The court found that husband, however, appears to be underemployed. He has significant skills and he has the capacity to earn sums as a home remodeler or in the construction industry. I find he has the capacity to earn as much as [wife] is earning. It is not clear to the Court why he has not improved his English skills if he feels that it is hindering him from obtaining employment in the United States.
The court found both parties had "significant education and work experience" in China, and that in the United States wife is gainfully employed. The evidence at trial suggested that husband is working in the remodeling field, at least on a sporadic basis, and "[n]either party appears to need additional training to continue in their profession." Although husband did not seek to improve his English skills, the court found it was not necessary to continue in his profession.
The judge found wife paid for her education in England primarily through funds earned from her interest in the parties' business. He also found "both parties contributed equally to their asset acquisition." As to the present value of the property, and debts and liabilities, the judge adopted wife's chart as a fair summary of the parties' property and liabilities, both in the United States and in China.
The judge found that "given [husband's] conduct throughout this litigation that included his refusal to dismiss the divorce action in China, his refusal to provide appropriate discovery, his coming forward at the last minute with documents which appear to have been manufactured, it is necessary to effect an equal distribution of property[.]"
The judge did not abuse his discretion in allocating the property in a fifty-fifty manner. The trial court has broad discretion in dividing property. Specifically, husband argues the court failed to consider his standard of living, income and earning capacity, and educational background. Husband argues the court had no evidence to support its finding that husband has the capacity to earn as much as wife. Moreover, husband contends that exclusively distributing the two properties in New Jersey to wife "is essentially an attempt to deprive [husband's] entitlement as a United States citizen to stay in this country and is equivalent to an order to compel [husband] to leave this country." We disagree.
Here, the judge properly evaluated the statutory factors and determined that although husband is earning less money than wife, he has the ability to earn a living through remodeling and construction. Supporting the finding, husband did not utilize opportunities to learn English, as he stopped attending night school. Moreover, husband does not have any physical or mental disability preventing him from working. Instead, it appears there is a lack of effort to learn English and obtain steady employment. Husband has experience working in China in software. There is nothing to prevent husband from seeking employment in this profession or pursuing a business in remodeling. The judge properly determined the parties lived in a middle-class lifestyle as they owned a total of four properties, each owned their own car, and each earned money and supported themselves. Thus, there was support in the record for the judge's findings as to husband's earning capacity, work experience and standard of living.
In effectuating the equitable distribution, the judge granted wife's request for both properties in New Jersey and divided the accounts and stocks equally. As previously discussed, we determined the implicit intention of the court was to award to husband the two properties in China. As the net value of the two New Jersey properties equaled the value of the two properties in China, we discern no abuse of discretion in this allocation of marital assets.
In his penultimate argument, husband asserts as error the court's refusal to award him alimony. Husband emphasizes that he relied on part-time jobs to make a living while wife had a full-time job earning $62,400. Specifically, he argued he should have received permanent alimony because he supported his wife while she studied in England, enabling her to get a good job in the United States, while he lacks the necessary skills to obtain a job, including command of the English language. Alternatively, husband argues the court should have awarded him rehabilitative costs for him to develop necessary skills, including paying his living and education costs so he could attend a year of English study and an engineering degree program.
In divorce actions, a court may award alimony "as the circumstances of the parties and the nature of the case shall render fit, reasonable and just[.]" N.J.S.A. 2A:34-23. The goal of alimony "is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000). A court should set the supporting spouse's obligation at a level that will maintain that standard. Innes v. Innes, 117 N.J. 496, 503 (1990).
Courts may award one or more of four types of alimony: permanent; rehabilitative; limited duration; or reimbursement. N.J.S.A. 2A:34-23(b). Permanent alimony "is awarded after a lengthy marriage for unlimited duration in recognition of prolonged economic dependence and sustained contribution to a marital enterprise." Gordon v. Rozenwald, 380 N.J. Super. 55, 66 (App. Div. 2005). Rehabilitative alimony "is awarded for a term determined on the basis of plans to enhance and improve earning capacity[.]" Ibid. To determine the type, amount, and duration of an alimony award, courts must consider this non-exclusive list of factors:
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party;
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
(13) Any other factors which the court may deem relevant. [N.J.S.A. 2A:34-23(b).]
A court has substantial discretion in determining whether to grant alimony, and in setting the amount. Jacobitti v. Jacobitti, 135 N.J. 571, 575 (1994). This court defers to a trial court's findings regarding alimony if they are supported by substantial credible evidence in the record. Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000). An award of support will not be disturbed "unless it is 'manifestly unreasonable, arbitrary, or clearly contrary to reason or to the evidence, or the result of whim or caprice.'" Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999) (quoting DeVita v. DeVita, 145 N.J. Super. 120, 123 (App. Div. 1976)).
Here, the court evaluated the factors and found husband was not entitled to alimony. The court found the parties have "relatively equal earning capacities. Although there is a need on the part of [husband], I do not find that [wife] has the ability to pay alimony. [Husband] can meet his need by working at full capacity." This was a long-term marriage, and the parties were in relatively good health and of a similar age. The court found the parties lived a "middle-class lifestyle" in the United States, and he was not convinced husband relied on wife's support to live his lifestyle during their separation, as husband was "making ends meet."
With respect to the parties' earning capacities, the judge had previously discussed that husband has the capability and potential to earn an amount equivalent to wife. Husband has the ability to be active in the job market and his decision to be absent was "his and his alone." Additionally, it would not take much time or expense for husband to acquire the skills he needs for employment. The judge found, "at most, [husband] needs to take an English course," and husband only testified as to "half-hearted" efforts to attend night school. The judge found that the parties' personal careers were not interrupted to a major extent. The judge also found the equitable distribution was "equal in nature, simply giving [wife] access to the assets that are most readily available to her without mischief that [husband] may be inclined to engage in with regard to the assets in China."
Here, the court's decision to not award any alimony is supported by substantial credible evidence in the record, and is therefore entitled to deference. The court reviewed the financial situations of the parties and evaluated the statutory factors before determining not to award husband any alimony. There was support in the record for the court's findings that husband had an earning potential equal to wife's but that he was not putting forth the effort to reach it. Husband stopped taking English classes and does not have a firm grasp of the language even after living in the United States for many years. He did not put forth a real effort to find a permanent job, as he only applied to a "couple" jobs since 2004 when he came to the United States.
Lastly, husband argues the court erred in awarding wife $35,000 in
counsel fees and asserts he is incapable of paying, while wife has the
ability to pay her own fees given her stable income.*fn3
Husband further argues the court instead should have awarded
him attorney's fees due to wife's "groundless, bad-faith allegations"
regarding husband hiding money in China. We disagree.
An award of counsel fees and costs in a matrimonial action rests in the discretion of the trial court. Williams v. Williams, 59 N.J. 229, 233 (1971); Strahan v. Strahan, 402 N.J. Super. 298, 316-17 (App. Div. 2008). Where a judge follows the law and "makes appropriate findings of fact, a fee award is accorded substantial deference and will be disturbed only in the clearest case of abuse of discretion." Yueh v. Yueh, 329 N.J. Super. 447, 466 (App. Div. 2000). A court may award counsel fees on any claim for divorce, subject to the provisions of Rule 4:42-9. R. 5:3-5(c).
Rule 5:3-5(c) provides that a court should consider the following factors in awarding counsel fees:
(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
In Mani v. Mani, 183 N.J. 70 (2005), the Court summarized Rules 5:3-5(c) and 4:42-9(b) as follows:
In a nutshell, in awarding counsel fees, the court must consider whether the party requesting the fees is in financial need; whether the party against whom the fees are sought has the ability to pay; the good or bad faith of either party in pursuing or defending the action; the nature and extent of the services rendered; and the reasonableness of the fees. [Id. at 94-95 (emphasis omitted).]
In weighing the statutory factors, the judge first considered the parties' financial circumstances, finding wife has an income higher than $50,000, but that husband is "capable of earning approximately equal sums to [wife.]" With respect to the parties' abilities to pay, the judge noted "[e]ach has accused the other of hiding assets, but neither was able to successfully prove to me that that is the case." He added that although wife earns more than husband, both parties have the ability to pay counsel fees because they will both obtain assets in the distribution that they could use to obtain the funds.
The court found the reasonableness and good faith of the parties is a "major" factor because "[husband's] conduct and positions extended the trial, required numerous pretrial motions and the lengthening of the trial itself." This resulted in wife incurring "substantial" counsel fees, $30,000 of which she already paid.
Here, the court properly weighed the factors set forth in Rule 5:3-5(c) and his finding has support in the record. Given the fact that both parties will obtain two properties in the judgment valued at approximately $200,000 total for each party, as well as other assets, it was reasonable for the court to find that the outcome of the suit will enable both parties to pay counsel fees.
Moreover, it was reasonable, given the circumstances, for the trial judge to focus on the element of bad faith. As the judge explained, husband caused delays in the proceedings, which resulted in higher counsel fees for wife. For example, after a trial date had been set, husband had the proceedings delayed so that he could obtain a new attorney, and then he did not even get a new attorney. Husband also produced evidence at the last minute, and the court had to entertain several motions to compel him to produce discovery. Moreover, additional motions had to be sought to enjoin husband from proceeding in his divorce proceeding in China.
Affirmed in part; remanded in part. We do not retain jurisdiction.