On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-572-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2012 - Before Judges Axelrad, Sapp-Peterson and Ostrer.
In this matrimonial matter, plaintiff Edwin Bice appeals from that portion of the May 9, 2011 dual final judgment of divorce (DFJD) that awarded defendant $6000 in monthly alimony and eighty percent of the marital home's value. Plaintiff argues the court's decision lacked evidential support in the record, and the court did not adequately consider and address the statutory factors governing alimony and equitable distribution. After considering his arguments in light of the record, and giving due deference to the trial judge's findings of fact, we are nonetheless constrained to reverse and remand for further proceedings.
Plaintiff filed his complaint for divorce in November 2008, after eighteen years of marriage. Plaintiff was forty years old and his wife was forty-one. The parties have three daughters who were seven, thirteen and seventeen upon entry of the judgment. Plaintiff was a self-employed truck driver and owned his own truck. He hauled propane for a single company and received seventy percent of the transportation charges, from which he paid the costs of operating his truck, including tolls, fuel, maintenance, insurance, and licensing. Defendant managed the household.
The parties resolved among themselves issues involving child custody, and equitable distribution of retirement accounts, and personal vehicles. The two-day trial in February 2011 focused on issues related primarily to alimony and equitable distribution, although defendant also presented evidence in support of a Tevis*fn1 claim and a request for attorney's fees. In particular, defendant alleged plaintiff had substantial unreported income, and hoards of cash. Defendant admitted he received $50,000 during 2007 and 2008 from a side retail propane business venture that he did not report on his tax returns.*fn2
Regarding equitable distribution, the court valued plaintiff's business as equal to the value of his sole business asset, his truck. The court did not assign a precise value to the equity in the truck, stating it was $10,000 or $15,000 "depending on whose calculation." The court did not expressly assign a net value to the house; rather, it noted that there was an appraisal valuing the home at $336,000, plaintiff asserted there was $162,000 debt, and defendant asserted there was $175,000 in debt. With respect to other debts, the court found that there were outstanding marital bills of $12,359. The judge found there was a Sears credit card debt of "three or $4,000" for 2008 holiday gift shopping by defendant, which plaintiff authorized, although the bill in evidence totaled $2812. The court apparently rejected defendant's claim that plaintiff also withdrew $40,000 in marital funds, stating "I don't see a $40,000 withdrawal on D-4. It starts out at thirty-seven five then ends up at [$31,064.23]."*fn3
As for allocation, the court then awarded defendant eighty percent of the house equity, rejecting plaintiff's argument he was entitled to fifty percent, and defendant's argument she was entitled to one hundred percent. She claimed his equity should have been offset by her Tevis claim, which she valued at $40,000 to $45,000, her claim that she incurred $26,000 in various living expenses pendente lite for which plaintiff was responsible, and $15,000 as partial payment of her attorney's fees. The court explained:
But this is what I did. The house is going to be sold in which case there will be money . . . a corpus for both of you or it's going to be refinanced. [T]he defendant is going to keep 80 percent of the equity, okay. The plaintiff is going to get 20 percent of the equity. This . . . takes into account the request to neutralize completely his right to it which I didn't think was fair and it wasn't justified by the documents.
Defendant retained possession and would receive all the benefit of any post-judgment reduction in principal, as she would be responsible for mortgage payments.
The court awarded plaintiff the truck used in his business. The court held plaintiff responsible for the Sears credit card debt. The court distributed all other personalty to defendant except plaintiff's tools, truck, pressure washer, snow-blower, arcade game, and Jeep hardtop.
Plaintiff was also responsible for IRS debt on the parties' joint 2008 and 2009 income tax returns, which the court did not quantify. Defendant refused to sign the 2008 return, stating she could not confirm its accuracy. But, the court found the evidence insufficient to require indemnification for the 2007 return, stating, "They both benefited from what he made in 2007. . . . I am not precluding her from articulating a defense she would take should there be IRS exposure."
After concluding its decision on equitable distribution, the court made findings regarding the parties' income. The court imputed income of $25,000 a year to defendant, a high school graduate, who had earned at most $20,000 a year in the early 1990s, before the parties' youngest child was born. After that, she had stayed at home, rearing the children.
The court then determined plaintiff's income was $180,000 based on its consideration of plaintiff's total bank deposits, and the total monthly expenses reported in his own case information statement. Regarding total deposits, the court stated:
What I've relied on to a very large extent were documents that were provided to me, the CIS February 2009 from the plaintiff, from the defendant. 2008 was his best year, even under his scenario, and I attribute that to the extra $50,000 that he talked about in his testimony. [For] 2009[,] I went to D-15 which are all his deposits. I added them up and I came to $183,120.80
D-16 is for a little longer period of time, it was 12/26/09 to 1/25/11
so maybe an extra month, 13 months. That total was 176,149.*fn4
And these were deposits that he made.
Based on plaintiff's 2009 case information statement, the court noted the parties' monthly spending was $12,960, or "something in the $155,000 range which would give you a higher income than $180,000." The court explained that it did not set income higher because it found plaintiff's income in 2008 was exceptionally high; "he had a better year in 2008 than nine or ten."
The court declined to find that plaintiff earned unreported cash income over and above the $50,000 in 2008 that plaintiff had confirmed. Defendant had introduced into evidence a photograph of an open duffle bag that depicted stacks of what appear to be $5 bills; she said one of her daughters took the photograph at plaintiff's apartment post-separation. Defendant also testified that plaintiff maintained $40,000 in cash in the house and had counted it in her presence. Plaintiff had tried to explain the $40,000 was from a savings account. Regarding the photographed duffle bag, the court found, "There is no way I could figure out what that cash was, how much, what it was, when it was." However, during argument on a motion for reconsideration, the court stated, "I believed that that photograph was of money he secreted, but I had no idea how to measure it."
The court set alimony at $6000 a month:
We now get to a couple other things. We get to alimony. What should it be? Again, this is [where] the budgets come into play and I must say that the defendant's budget is much higher than I think it should be. What I did was indicate that alimony should be $6,000 a month, okay. Now, the - I just want to see one thing here for a second.
This is a 20 year marriage. That's permanent alimony.
The court explained the basis for its $6,000 figure by stating the following: Now, the way . . . that I arrived at my number for alimony, just so the record is clear, D-7 is the defendant's January 28, 2011 case information statement. We didn't have a 2011 case information statement from . . . the plaintiff that was marked. But the plaintiff says he pays $1200 a month to his girlfriend and he has other bills too.
I used D-6 to some extent, which is the defendant's January 19, 2009 case information statement and D-22 which is the plaintiff's . . . February 12, 2009 case information statement. In that case information statement he indicated that the joint budget, family budget was $12,960, this is his own document, was $12,960 a month joint and that would be without . . . the defendant working. So if that was his joint budget that he put out, that would, if you just multiply that by 12, you get something in the $155,000 range[.] . . .
The court stated that it reduced the total budget. On the other hand, the court stated that it inflated defendant's need in order to account for her custody of the children, notwithstanding that she would also receive child support for the children:
I did, as I indicated, slice the budget to some extent on the defendant. But what I tried to do is come up with numbers that, quite frankly, give the defendant a little bit more money to live on than the plaintiff because the defendant has three kids. The alimony is tax deductible to the plaintiff and income to the defendant.
Utilizing the child support guidelines, the court calculated weekly child support of $244. The guidelines included no credit for health insurance payments for the children.*fn5 After adding child support and alimony, defendant's total receipts were set at $7,049 a month, or $84,588 per year. After tax payments as calculated in the child support worksheet, along with her imputed annual income of $25,000, defendant's net weekly income (before child support) totaled $1438, and plaintiff's weekly ...