Wadlow v. WadlowWadlow v. Wadlow
The essential facts are not in dispute and need not be recounted at length. The parties were married in 1971 and separated approximately ten years later. No children were born during the marriage. Throughout the entire period of the marriage, plaintiff was employed and earned a substantial salary. Defendant worked as a surveyor until 1980 when he resigned his position to pursue a career as a financial planner.
It is undisputed that plaintiff had acquired approximately $20,000 through savings, gifts and inheritances prior to the marriage. Although this amount was commingled over the years, defendant candidly acknowledged that it was the result of his wife‘s efforts and that it would be returned to her family. In recognition of this understanding, defendant executed a will which provided that in the event of a common disaster or simultaneous death the $20,000 would be paid to plaintiff‘s brother prior to distribution of the residuary estate.
It is also undisputed that plaintiff‘s parents maintained a securities account (the CJL Security Account) for her benefit during the marriage. Plaintiff‘s father managed the account. Although substantial profits were earned, nothing was ever withdrawn from the account. Nevertheless, both parties shared in paying the taxes emanating out of these earnings.
Following a plenary hearing, the trial judge granted a judgment of divorce. In a bench opinion, the court determined that the $20,000 in savings, gifts and inheritances which predated the marriage was, nonetheless, part of the marital estate available for distribution. In that regard, the trial judge found that the money had been commingled during the parties’ cohabitation and had been used to make joint purchases. However, he also concluded that the CJL Security Account constituted a gift solely to plaintiff and was, thus, immune from distribution. So too, he determined that the enhanced value of the account was attributable to the еfforts of plaintiff‘s father and was not subject to allocation. The trial judge carefully considered the factors and criteria set forth in Painter v. Painter, 65 N.J. 196, 211-212 (1974) and decided to divide the parties’ personal property equally. Different considerations were said to apply to the marital residence which was allocated on an uneven basis, 55% to plaintiff and 45% to defendant. The court decided that the date of the filing of the complaint was to be used in determining the value of the residence and that the outstanding mortgage and legal fees and a hypothetical brokerage commission were to be deducted.
I
Initially, we reject plaintiff‘s claim that the trial judge abused his discretion in deciding to allocate the partiеs’ personal property on an equal basis. At the outset, we emphasize the narrow contours of appellate review pertaining to the division of marital assets. It can fairly be said that articulation of the standards and criteria which are to be taken into account in determining an equitable distribution of property is generally a task considerаbly less formidable than applying them. “[W]e rely heavily, as we must, on the discretion of the trial judge in making these delicate and difficult judgments.” Gibbons v. Gibbons, 174 N.J. Super. 107, 114 (App.Div. 1980), rev‘d on other grounds 86 N.J. 515 (1981). Thus, the ultimate question before us is whether the trial judge mistakenly exercised his broad authority by equally dividing the parties’ personal property. Ibid. See also Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App.Div. 1978); Esposito v. Esposito, 158 N.J. Super. 285, 291 (App.Div. 1978); Salmon v. Salmon, 88 N.J. Super. 291, 310 (App.Div. 1965). Of course, we recognize that a trial judge “does not fulfill his heavy judgmental obligation by routinely or meсhanistically dividing the marital assets equally.” Gibbons v. Gibbons, supra, 174 N.J. Super. at 114. See also Stout v. Stout, 155 N.J. Super. 196, 205 (App.Div. 1977); Gemignani v. Gemignani, 146 N.J. Super. 278, 282 (App.Div. 1977). That approach was specifically rejected by our Supreme Court in Rothman v. Rothman, 65 N.J. 219, 232, n. 6 (1974). As we noted in Stout v. Stout, supra 155 N.J. Super. at 205, “[t]he
Here, we are entirely satisfied that the trial judge conscientiously applied the standards set forth in Painter v. Painter, supra. His findings in that regard are clearly grounded in the evidence contained in the record. Although plaintiff‘s employment generated slightly greater income during the marriage, we cannot say thаt this factor, when considered within the context of the complete factual milieu, compelled an uneven distribution of marital assets. So too, the fact that plaintiff was responsible for household chores, while plainly deserving recognition and consideration, did not mandate that she be allocated the greater portion of the marital assеts. The trial judge cannot be faulted for counter-balancing against that factor the defendant‘s contribution in the form of financial and investment management. Finally, the defendant‘s “fault” in leaving the marital home “is not an appropriate criterion for consideration in effecting an equitable distribution of marital assets.” Painter v. Painter, supra, 65 N.J. at 212. See also Chalmers v. Chalmers, 65 N.J. 186, 193 (1974). In our view, the trial judge did not abuse his discretion. We perceive no valid basis to disturb his findings and conclusions in that regard.
II
Equally unpersuasive is plaintiff‘s claim that the trial judge erred when he refused to compel defendant to cooperate in filing joint income tax returns. Plaintiff‘s reliance on our decision in Weinkrantz v. Weinkrantz, 129 N.J. Super. 28 (App. Div. 1974) is clearly misplaced. There, we held that the parties “were not legally separated under a decree of separate maintenance within the intendment of
We need not address that question here. We merely note in passing that the problem has not received uniform treatment in other jurisdictions. See, e.g., Wolk v. Wolk, 191 Conn. 328, 464 A.2d 780 (Sup.Ct. 1983); Leftwich v. Leftwich, 442 A.2d 139 (D.C.App. 1982); In re Marriage of Butler, 346 N.W.2d 45 (Iowa Ct. App. 1984); Frasse v. Frasse, 315 N.W.2d 271 (N.D.Sup.Ct. 1982). Assuming that the Chancery Division had the authority to order the parties to file a joint return, we discern no sound basis compelling that course within the context of the facts of this case. Under the Internal Revenue Code (
What has been said thus far does not mean that the trial judge was obliged to ignore the tax ramifications of his decisions. To the contrary, when determining an equitable division of property the court is free to consider the financial consequences of one party‘s refusal to file a joint return and grant an appropriate credit. See Leftwich v. Leftwich, supra at 146; In re Marriage of Butler, supra at 47. In light of the potential problems to which we have alluded, that would appear to be the far wiser course in this case.
III
In our view, the trial judge erred when he failed to exclude from the marital estate $20,000 in the form of savings, gifts and inheritances acquired by plaintiff рrior to the marriage. Although these funds were commingled during the parties’ cohabitation, we perceive a clearly manifested and unequivocal intent that they belonged to plaintiff and would ultimately be returned to her or her family. We are thoroughly convinced from our careful review of the record that the trial court‘s findings in that regard are not supported by the evidence presented. Rothman v. Rothman, supra, 65 N.J. at 233; Borodinsky v. Borodinsky, supra 162 N.J. Super. at 444; Perkins v. Perkins, 159 N.J. Super. 243, 247 (App.Div. 1978). See also Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974); Mayflower Securities v. Bur. of Securities, 64 N.J. 85, 92-93 (1973); State v. Johnson, 42 N.J. 146, 161-162 (1964).
As noted, the exact fate of the $20,000 could not be traced by the parties. Nevertheless, the record evinces a clear intention to return that sum to plaintiff or her family. As defendant candidly acknowledged, the parties “always had the feeling that [the money] had come from her family and as a result of her
Under the circumstances, we are satisfied that the trial judge‘s conclusion was clearly erroneous and “so plainly unwarranted that the interests of justice demand intervention and correction.” State v. Johnson, supra, 42 N.J. at 162. We note in that regard that the court‘s decision was not premised upon its assessment of the parties respective credibility or its “feel” of the case. Id. at 161. Rather, the question presented is essentially one of law. We, thus, conclude that the premarital gifts and savings of plaintiff should not have been considered part of the estate available for equitable distribution.
IV
We next turn to the arguments advanced by defendant in his cross-appeal. Defendant‘s contention that the CJL Security Account was subject to equitable distribution does not require extended discussion. The record clearly supports the trial judge‘s finding that the account was established by plaintiff‘s parents and managed solely by her father. It was segregated throughout the marriage and clearly was never intended to benefit the defendant. The value of plaintiff‘s interest in the account was, thus, immune from distribution. Cf. Painter v. Painter, supra 65 N.J. at 214.
We are further convinced that defendant was not entitled to a share in any increase in value occurring during the
V
Equally devoid of merit is defendant‘s contention that the trial judge‘s division of the value of the marital residence constituted an abuse of discretion. As noted previously, our role as we see it is to “determine whether the result could reasonably have been reached by the trial judge on the evidence, or whether it is clearly unfair or unjustly distorted by a misconception of law or findings of fact that are contrary to the evidence.” Perkins v. Perkins, supra 159 N.J. Super. at 247. Clearly, “[m]ore than a feeling of dissatisfaction is needed to fuel an appeal.” Id. at 248. “A sharp dеparture from reasonableness must be demonstrated before our intercession can be expected.” Ibid. Applying these principles here, we find that the trial judge did not abuse his discretion. We cannot say that he was wrong.
VI
Nevertheless, we harbor serious reservations with respect to other aspects of the trial court‘s decision pertaining to thе division of the value of the marital home. At the outset, we note certain ambiguities in the court‘s disposition of this issue. The trial judge did not order that the property be sold. Nor did he direct that one party‘s interest be transferred to the other.
We assume that the trial court contemplated plaintiff‘s purchase of defendant‘s interest in the premises. Our assumption is predicated upon the fact that plaintiff continued to reside in the home following defendant‘s departure and paid all carrying charges and incidental expenses. Further, defense counsel in his summation offered to sell defendant‘s interest to the plaintiff.
Based upon that assumption, we hold that the trial court erred in two respects. First, we find unwarranted that portion of the court‘s judgment which directs that a hypothetical brokerage commission be deducted from the parties’ equity in the marital residence. We recognize that such a deduction was apparently permitted in Daly v. Daly, 179 N.J. Super. 344, 351 (App.Div. 1981). However, the specific issue presented here was neither raised by the parties nor considered by us in that case. In point of fact, no published decision in New Jersey аddresses that precise question. The decisions of other jurisdictions appear to be equally divided. Compare In re Marriage of Stratton, 46 Cal. App.3d 173, 119 Cal. Rptr. 924, 925 (Ct.App. 1975); Rossum v. Rossum, 482 P.2d 410, 412-413 (Nev.Ct.App. 1971) with In re Marriage of Denney, 115 Cal. App.3d 543, 171 Cal. Rptr. 440, 444 (Ct.App. 1981); In re Marriage of Drivon, 28 Cal. App.3d 896, 105 Cal. Rptr. 124, 125 (Ct.App. 1972).
In our view, the better position is that a hypothetical brokerage commission should not be charged in the absence of evidence that the property will be sold to a third person. We find nothing in the record to support the hypothesis that a real еstate commission constitutes a reasonably foreseeable expense incident to the present and future disposition of the property.
We also conclude that the trial court failed to account for the accretion in the value of the property between the date of the filing of the complaint and the time of the distribution order. In Bednar v. Bednar, 193 N.J. Super. 330, 332 (App.Div. 1984), we held that there was no iron-clad rule for determining the date of valuation of marital assets. We noted, however, that “use of a consistent date is preferrable, such as the filing of the complaint.” Ibid. See also Smith v. Smith, 72 N.J. 350, 361-362 (1977). We also stated that “[t]he question of enhancement or accretion in value pending distribution is separate.” Bednar v. Bednar, supra 193 N.J. Super. at 333. With respect to that question, we distinguished between an increase in value cаused by market factors or inflation and an enhancement which is the result of the “personal industry of the party controlling the asset.” Ibid. We held that “[i]nterim accretions pending actual distribution due to the diligence and industry of a party in possession of an asset, independent of identifiable market forces,” should accrue to that person alone. However, where the enhanced value is attributable to market factors or inflation, “each party should share equitably in the increment.” Ibid.
VI
Since our decision vitally affects the allocation of the marital assets, the matter must be remanded for further consideration. The judgment of the Chancery Division is affirmed in part and reversed in part. The matter is remanded for further proceedings consistent with this decision. We do not retain jurisdiction.