Opinion
DOCKET NO. A-5974-08T1
10-28-2013
ROSE PETRONE,Plaintiff-Appellant, v. DIANE PETRONE, Defendant/Third-Party Plaintiff-Respondent, v. JOSEPH PETRONE and JOHN PETRONE, Third-Party Defendants.
Michelle Joy Munsat argued the cause for appellant (Ms. Munsat, attorney; Ms. Munsat and Steven P. Russo, on the brief). Michael H. Schreiber argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Nugent.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-264-07.
Michelle Joy Munsat argued the cause for appellant (Ms. Munsat, attorney; Ms. Munsat and Steven P. Russo, on the brief).
Michael H. Schreiber argued the cause for respondent. PER CURIAM
This partition action stems from a family feud over the ownership interests plaintiff Rose Petrone, the family matriarch, and defendant Diane Petrone, plaintiff's only daughter among five children, have in the Seaside Park residence they purchased with the late Angelo Petrone, plaintiff's husband, and defendant's father. Following a lengthy trial in the Chancery Division, the court held that plaintiff and defendant each owned fifty percent of the property as joint tenants. The court also ordered that the house be sold and the proceeds be distributed equally subject to adjustments for certain expenditures made by the parties. Plaintiff appealed, contending the court's findings were unsupported by the evidence. Having reviewed the record in light of plaintiff's arguments, we affirm.
I.
Plaintiff and her late husband, Angelo, were married in 1949 and had five children: Joseph, Diane, John, Angelo (Junior), and Michael. Over the years, plaintiff and her husband helped three of the boys buy homes when they married. They also helped defendant make the down payment on her home in Mystic Island. On February 23, 1998, plaintiff, her husband, and defendant purchased the Seaside Park home for $160,000. The deed designated the grantees as: "Angelo Petrone and Rose Petrone, his wife and Diane Petrone, single as Joint Tenants with Rights of Survivorship." Plaintiff and defendant disagreed at trial about whether the deed description accurately described their ownership interests. Plaintiff contended that it did not; defendant contended that it did. The validity of the deed designation was one of the primary disputes at trial.
We refer to plaintiff's late husband, Angelo, by his first name, and Junior by his nickname, to avoid confusion.
According to defendant, in 1997 she and her parents began to discuss the joint purchase of a home. Her dad "was becoming sick." Her mother had asthma. The house her parents lived in was near the beach but was not winterized. Although her parents had decided to move into the house owned by their son, Junior, that idea ended when plaintiff and Junior had a disagreement about decorating his house. Plaintiff and Angelo had considered buying a new home, but they could not afford it, so they began talking about buying a home with defendant.
Plaintiff, Angelo, and defendant decided that defendant would sell her home in Mystic Island and the three of them would purchase the Seaside Park home and live together. They would own the home jointly, defendant would care for her parents during their lives, and upon their deaths defendant would own the home.
Defendant understood that a "joint tenancy with right of survivorship" meant that "whoever survived would be the sole owner of the home." The parties not only discussed the concept among themselves, but also discussed it with the attorney who represented them at settlement. According to defendant, her brothers "knew exactly what was happening and there was no argument at all about it."
Plaintiff denied that defendant had anything to do with the decision she and her husband made to purchase the Seaside Park home. She also denied that she and her husband discussed purchasing the home with any of her children, and she explicitly denied ever having any discussions with defendant about purchasing the home. According to plaintiff, her husband paid cash not only for the down payment, but also for the balance of the purchase price.
Plaintiff also testified that she and Angelo were represented at closing by Paul Sica, Esq. Before February 23, 1998, when closing occurred, she had no conversations with Sica concerning title to the property. She denied that defendant or any of her other children were present at the closing. She understood that she and her husband would have title to the property. She intended, however, to bequeath to defendant a small house in the "back" of the property, which she believed represented approximately one-third of the property.
For the most part, witnesses who had any knowledge about the circumstances under which the parties purchased the Seaside Park property corroborated defendant's testimony. Plaintiff's son, Joseph, knew nothing about the discussions between his parents, or between his parents and defendant, that led up to the purchase of the property. He did testify, however, he heard that his parents were putting defendant's name on the deed because she wanted to have a tax write-off.
Michael testified there was no doubt — "no ifs, ands or buts" — that his parents intended to leave Diane the home when she died. His father intended that his mother would live in the Seaside Park home, his sister would retire there, and upon his mother's death, his sister would own the house "a hundred percent." Junior concurred with Michael's testimony. According to him, on countless occasions, his mother and father said they wanted defendant to have the home when she retired. Everyone else had children and a family. Defendant did not. Consequently, she was the most qualified sibling "to be there for [their] parents in every manner." Junior was emphatic that his parents "had no doubt in their mind that [defendant] would provide for them throughout the remaining years."
Plaintiff's younger sister, Mary Mazzuoccolo, also testified that plaintiff and her husband intended that defendant own the Seaside Park home when they died. She had many conversations with both plaintiff and her husband concerning the Seaside Park home. Defendant was going to care for them and, after retiring from her job at the casino, move into the back house at the Seaside Park property. "[Defendant] was going to get half of the house[,] . . . [and] the house was going to be [defendant's] after [plaintiff] and Angelo died."
Paul Sica, the attorney who represented plaintiff, Angelo, and defendant at the closing, had known the Petrone family since his childhood. He had considered Angelo a mentor and a father figure. He was also close to Angelo's son, Joseph. He was closer to Joseph than to Diane.
Sica had represented several members of the Petrone family. He had represented plaintiff and Angelo when they refinanced a previous home and when they sold one of their homes. He had also represented Joseph when he sold a home, and Junior when he purchased a home. When the parties and Angelo decided to buy the Seaside Park home, they discussed it at length with Sica. Plaintiff and Angelo decided to move to Seaside Park because Junior was there. Defendant was going to take care of them and they were going to take care of her by giving her the house when they passed away.
Sica recalled one discussion in particular in the kitchen of plaintiff and Angelo's home before they purchased the Seaside Park property. Angelo, who was no longer earning income, was very concerned about having enough money to live. He was considerably older than plaintiff and he was worried about how she would be cared for. Defendant was going to care for her mother. The other children had families, but defendant did not, so she was available to care for her parents. In exchange, she would ultimately get the house.
Sica discussed several ways for plaintiff and Angelo to leave defendant the Seaside Park home. He discussed leaving the home to defendant in a will, having her named in the deed as the owner, and having the three take title as joint tenants with rights of survivorship. Sica recalled explaining to plaintiff and Angelo that they would in effect be disinheriting their sons. They understood. Sica recalled specifically that plaintiff said to him, "you don't understand, [defendant] is my best friend." Angelo, as well, wanted to take care of defendant. He felt his sons could fend for themselves. They were all fairly successful.
Plaintiff, Angelo, and defendant decided to take title as joint tenants with rights of survivorship. Sica explained to them that the concept basically meant "the last person standing would own the house." He further explained that when one of the three died, the other two would share equally, and when the next person died, the survivor would own the house. Sica also explained that there would be nothing to bequeath in a will.
According to Sica, he explained the concept of joint tenants with rights of survivorship to plaintiff on at least two occasions, once at her kitchen table, and again at closing. Sica attended the closing on February 23, 1998.
Sica also recalled that Robert Budesa, Esq., represented the sellers at closing. Budesa did not appear at the closing. Budesa was unconcerned about how the property was titled "as long as the money [was] good . . . ." Sica spoke to Budesa's secretary because Budesa's office was responsible for preparing the deed. The deed was prepared with plaintiff, Angelo, and defendant taking title as joint tenants with rights of survivorship. Sica identified the executed deed as the deed "that [he] left Mr. Budesa's office with that day." Sica didn't recall if the designation of the purchasers as joint tenants with rights of survivorship was initially on the deed or whether it was added later, but it was on the deed when he left Budesa's office on the day of closing. Following the closing, Sica recorded the deed and later sent it to the Petrones at their Seaside Park home.
After plaintiff filed the lawsuit, she and Joseph tried to call Sica, but he did not return their calls. He testified, emphatically, that he had no doubt that the parties understood exactly what they were doing when they took title to the property as joint tenants with rights of survivorship.
Robert Budesa testified the original contract designated Junior as the buyer, but also provided that Angelo, plaintiff, and defendant could be added as owners. The latter three were later added and Junior's name was removed. According to Budesa's notes, the deed was to show Angelo and plaintiff as husband and wife and defendant as single. The phrase "joint tenants with rights of survivorship" did not appear in his notes and was not part of the deed in his file. Although Budesa could not be certain whether that phrase was added by his secretary, if someone in his office typed it, there should have been a copy of the deed with that language in his file.
Because a deed with the survivor language was not in Budesa's file, he believed it was fair to assume the deed he prepared left his office without that language. However, there was no signed deed in his file, which was unusual, and he could not explain why the copy in his file did not have a second page with the legal description of the property.
Angelo died in 2005. Plaintiff filed the lawsuit against defendant two years later, in 2007. According to defendant, her dispute with plaintiff and the lawsuit stemmed from her brother Joseph's divorce and financial problems. Defendant explained that in June 2007, after Joseph's divorce, plaintiff wanted to help Joseph with his financial problems. Plaintiff asked defendant to give Joseph $50,000. When defendant explained that she did not have $50,000 to give away, plaintiff decided she wanted to get a $400,000 reverse mortgage on the house. Defendant later received a threatening call from Joseph, who said that if defendant did not sign over the deed to the home to plaintiff, he would see her in court. Defendant refused. The lawsuit ensued.
Plaintiff denied telling defendant that Joseph needed money and asking defendant to give him $50,000. According to plaintiff, Joseph never needed her financial help; he had "all the money he needed." In the summer of 2007, plaintiff met with an attorney, Bonnie Peterson, Esq., to have a will prepared in which she would leave defendant one-third of the Seaside Park home. Peterson obtained a copy of the deed and informed plaintiff that defendant's name was on the deed. Plaintiff claimed defendant's name was not supposed to be on the deed.
Thereafter, plaintiff spoke to defendant and asked defendant to remove her name from the deed. When defendant refused to sign a corrective deed acknowledging that she had a one-third interest in the property, plaintiff commenced the lawsuit.
In addition to their dispute about their ownership interests in the Seaside Park home, plaintiff and defendant sharply disputed how much money they each contributed toward the purchase, improvement, and upkeep of that property. According to plaintiff, she and Angelo netted $98,000 when they sold their Florida house in 1992, and $118,000 when they sold the home they left to move to Seaside Park. Angelo paid the $15,500 deposit for the purchase of the Seaside Park home, the balance of the purchase price, $145,723.65, as well as the closing costs. He also paid for all of the repairs and renovations with cash they had saved and kept in his safe. Plaintiff claimed defendant paid nothing toward the purchase or renovation of the property. However, because defendant took all of the records from the house after Angelo died, plaintiff had no documentary evidence to support her claims.
Plaintiff also testified that she and Angelo had approximately $2,549 in monthly income when they moved into the Seaside Park home. She presented the testimony of her son, Joseph, to corroborate her testimony. Joseph had prepared an analysis of his parents' assets. Between January and February 1998, just weeks before closing on the property, Angelo withdrew $164,600 from his various investment accounts. When his parents closed on the Seaside Park home, Angelo had approximately $130,000 to $140,000 in investments, and approximately $75,000 to $100,000 in cash in his safe. Angelo paid for all of the renovations to the property. Although Joseph acknowledged that defendant and Junior did considerable work around the house, he insisted Angelo made the renovations and paid the bills. Joseph believed that the renovations cost between $70,000 and $100,000.
Joseph also acknowledged that he kept Angelo's safe when his parents moved to Seaside Park, but said he returned it approximately one year later. Angelo came over and took money whenever he wanted. Joseph claimed that he did not have the combination to the safe and never opened it. He denied having complete control over his parents' finances, and he denied stealing any of his parents' money.
Defendant, who worked in a casino, believed she contributed $75,000 toward the purchase of the Seaside Park property, including the $15,500 down payment. On the date she and her parents closed on the Seaside Park property, she took a $48,807 loan out on her house in Mystic Island to remodel and furnish the Seaside Park home. From 1998 through 2007, she paid more than $200,000 for renovations to, and maintenance of, the Seaside Park property, including taxes and insurance. She documented her claims with detailed income and expense records that she kept because she needed them when renewing her casino license every four years.
Defendant knew about her father's safe, but did not know how much cash he kept in it. She estimated that he kept between $50,000 and $100,000. She knew that Joseph took the safe when her parents moved to Seaside Park. When Joseph returned the safe, the money was gone. Her father was very upset and repeatedly asked what had happened to his money. According to defendant, Joseph lived a lavish lifestyle, well beyond his means.
Other witnesses, including Joseph's former wife, confirmed that Joseph had lived a lavish lifestyle, which included owning racehorses and stables, and which also included extensive traveling. Joseph's former wife also testified that Joseph had her sign his mother's name on checks without his mother's knowledge; and that she and Joseph had considerable debt.
Following the trial, the court found in favor of defendant as to her ownership interest in the Seaside Park property. The court first defined the issue:
One of the central issues before this Court is to determine whether or not the manner in which title was vested among these three individuals accurately reflected their
understanding at the time of closing or whether a fraud was perpetrated by [defendant] in concert with the closing attorney to modify the manner in which title was to be vested providing [defendant] with 50 percent ownership as opposed to a one-third ownership with Angelo and [plaintiff] owning the other two-thirds.
The court noted that the deed vested title to the grantees as follows: "ANGELO PETRONE and ROSE PETRONE, his wife and DIANE PETRONE, single as JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP." The court further noted that the deed "suggests that a different typewriter was utilized to add the terms as joint tenants with rights of survivorship after the original deed had been prepared." Nevertheless, the court found, "based on the documentary evidence . . . and the testimony of Mr. Sica, these terms were added during the closing in Mr. Budesa's office, not by Mr. Sica after they left Mr. Budesa's office, . . . and before filing this deed with the Ocean County Clerk's office." The judge added: "I have no reason to doubt the veracity of Mr. Sica regarding the preparation of this deed and I am satisfied that no fraud was perpetrated on any of the parties by designating the grantees in the form with which title was vested."
Based on its credibility determinations, the court concluded:
The deed as originally filed and the testimony of Mr. Sica substantiate this Court's conclusion that Mr. and Mrs. Petrone owned 50 percent interest in the property and [defendant] owned the other 50 percent. As a legal consequence of Angelo Petrone's passing, [plaintiff] possessed an undivided one-half interest in the property and [defendant] owned the other undivided one-half interest in the property as joint tenants with the rights of survivorship.
The court further concluded there was no understanding by the parties "that their respective interests would be delineated along the lines of their financial contributions." Rather, the testimony and documentary evidence established that "this investment was a joint investment -- joint venture and their respective interests were not defined by their proportionate initial respective financial contributions."
As to contributions toward maintenance of, and improvements to, the Seaside Park property, the court found the parties had entered into the joint venture with the understanding that defendant would care for both of her parents as they aged, and that she would ultimately receive title to the property upon their death. The court also found, "this most probably will never occur." Determining that defendant had fulfilled only some of her obligations, the court concluded plaintiff was entitled to contribution from defendant for the initial purchase of the Seaside Park property:
[Plaintiff] alone should be entitled to a credit on the monies . . . that she and Angelo paid on behalf of [defendant] at the time of the closing as a set-off against that part of the obligation which can never be fulfilled by [defendant]. This joint venture included both cash and future services. The interruption of those services, for whatever reason, now suggests the better approach would be to adjust the initial capital contributions to reflect the split of acquisition cost between [plaintiff] and [defendant].
[Defendant] was able to establish that she contributed approximately $9,323.46 in cash at the time of closing to the closing itself. [Plaintiff] established that she and Angelo were able to contribute $153,4 00 at the time of closing. Each should have contributed approximately $81,361 to the closing. [Defendant] contributed $9,323. Therefore, to equalize their contributions, [Defendant] must reimburse her mother $72,038 from her share of the proceeds of the sale.
The court next addressed contributions made after closing. "The equalization of subsequent contributions is another aspect of the Court's final responsibility in fairly partitioning the proceeds from the sale of this real estate." The court concluded that the costs of the renovations, maintenance, and upkeep of the Seaside Park property between the years 1998 to 2007 totaled $320,326:
[T]he renovations paid in cash equal $64,712. Renovations paid by check equal $126,438. Maintenance and upkeep for the property paid for by credit cards equals $30,795. Water, taxes equals $51,992.
Homeowners and flood insurance equal $29,800. Power and light equals $7,576 and New Jersey Natural Gas equals $9,013. These figures totaled $320,326. Subtracted therefrom would be the rental income that could be utilized to defray the costs in the amount of $30,000, thereby leaving a total amount of expenditures . . . for repairs and the like in the amount of $290,326.
The court noted the testimony regarding the parties' respective contributions "could not be more contradictory." As to defendant's contribution claim, the court concluded:
it is not possible that [defendant] had available to her sufficient net funds to equal the total renovation, maintenance and miscellaneous expenses and upkeep between the years 1998 and 2007 totaling $320,327.12 plus an additional $15,125 to pay [plaintiff]'s gambling debts and, at the same time, maintain her own assets, savings accounts and expenditures for her own real estate. It is simply not possible.
As to plaintiff's contribution claim, the court held that Angelo and plaintiff had cash assets even after the purchase. "[Plaintiff] would . . . have had access to $121,00 over and above her Social Security which was needed to provide normal living expenses and those funds which are now still available in the Resource Range account. This $121,000 was expended on capital improvements and the like." Therefore, defendant was required "to make up the difference." Because the "difference" exceeded defendant's fifty percent share, the court credited defendant for the excess.
After adjusting the credits, the court held that defendant was required to pay plaintiff $48,875 from her share of the proceeds of the sale. The court entered a memorializing order from which plaintiff appealed.
II.
Plaintiff contends that she and her daughter held their shares in the Seaside Park property as tenants in common, not as joint tenants with right of survivorship, and that the trial court erred by finding to the contrary. She also contends the trial court erred when it determined that defendant owned a fifty-percent interest in the property, rather than a one-third interest. Lastly, she contends that the trial court's findings concerning plaintiff's and defendant's contributions to the property were not supported "by a full, sufficient and adequate review and consideration of all of the evidence."
Our review of a trial judge's decision following a bench trial is limited by well-settled legal principles. Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002). "We are not to review the record from the point of view of how we would have decided the matter if we were the court of first instance." Ibid. "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (alteration in original) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)). For that reason, a trial court's findings of fact "should not be disturbed unless 'they are so wholly [u]nsupportable as to result in a denial of justice . . . . Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). We owe no special deference, however, to a trial court's conclusions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Plaintiff argues that the court erred by finding she and defendant were joint tenants with rights of survivorship, rather than tenants in common, because "it appears that the Trial Judge did not even consider the possibility that Mr. Sica could have been acting on instruction from [defendant], and that instruction could have been based on her honest belief in what her parents desired." Plaintiff reasons that had the trial judge considered the possibility of a simple miscommunication from defendant to Sica, then the court could have found that plaintiff met her burden to prove that the language in the deed did not reflect the grantees' intent.
Although plaintiff asked the trial court to reform the deed to conform to the grantees' intention to take as tenants in common, not joint tenants with rights of survivorship, plaintiff acknowledges that she was required to demonstrate by clear and convincing evidence that the reformation she sought was what the grantees intended. See St. Pius X Home of Retreats v. Diocese of Camden, 88 N.J. 571, 580-81 (1982). She disregards our standard of review, that a trial court's "[f]indings [of fact] . . . are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc., supra, 65 N.J. at 484. The standard does not permit us to speculate about findings of fact a trial court could have made had it weighed the evidence differently.
Implicit in plaintiff's argument is that the trial court should have either rejected Sica's testimony, or rejected most of it, particularly what he had to say about plaintiff's intent and his explanation to plaintiff, on two separate occasions, about the meaning of the phrase "joint tenants with rights of survivorship." The trial court's finding that Sica was credible is entirely supported by the overwhelming evidence that was produced during the trial. There is no basis to disturb the court's findings.
Plaintiff next contends that the court erred when it determined that plaintiff and defendant each owned fifty percent of the Seaside Park property. She argues that if the court determined the ownership interests based on the parties' financial contributions, then the court grossly miscalculated the ownership interests. Plaintiff argues, alternatively, that if the court determined the parties' ownership interests based on their status as joint tenants with rights of survivorship, it misapplied applicable law.
Plaintiff's suggestion that the court might have determined the parties' ownership interests based on their contributions is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The court held, explicitly, that the parties purchased the property as a joint venture without any understanding that their interests would be based on their contributions. That finding was supported by ample credible evidence in the record.
Plaintiff's argument that the court misapplied the law when it found that she and defendant each had a fifty-percent ownership in the property is also misplaced. Significantly, the language in the deed first identified the parties: Angelo and plaintiff, "his wife"; and defendant, "single." The deed then vested ownership in the grantees "as joint tenants with rights of survivorship." "In a grant by way of joint tenancy, to three persons, each takes one third part. In a grant to a husband and wife, and a third person, the husband and wife take one half, and the other person takes the other half[.]" Mosser v. Dulsay, 132 N.J. Eq. 121, 123 (Ch. Div. 1942) (citation omitted). That common law rule does not change with the application of current statutory law. A tenancy by entirety is created when "[a] husband and wife together take title to an interest in real property . . . under a written instrument designating both of their names as husband and wife." N.J.S.A. 46:3-17.2. Under that statute, the interest plaintiff and Angelo held in the Seaside Park property was a tenancy by entirety; but as between them and defendant, they took one-half and defendant took the other half.
That interpretation is also consistent with N.J.S.A. 46:3-17.3, which states:
No instrument creating a property interest on the part of a husband and wife shall be construed to create a tenancy in common or a joint tenancy unless it is expressed therein or manifestly appears from the tenor of the instrument that it was intended to create a tenancy in common or joint tenancy.
But even if each grantee were vested with a one-third interest in the Seaside Park property as a joint tenant with right of survivorship, the result would be the same. "[T]he 'grand incident' of joint tenancy is the right of survivorship; on the death of any joint tenant, title descends to the survivors and continues until there is only one left who takes the entire interest." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 389 N.J. Super. 219, 226 (Ch. Div. 2006), aff'd in part and rev'd in part, 398 N.J. Super. 299 (App. Div.), certif. denied, 195 N.J. 521 (2008). Thus, upon Angelo's death, title to the property would have descended to the survivors, plaintiff and defendant.
Plaintiff appears to argue that plaintiff, Angelo, and defendant intended to vest themselves with a one-third interest in the property, and that she succeeded to Angelo's interest upon his death. The flaw in her argument is that the tenancies were created at the time the parties were vested with ownership in the Seaside Park property, not when Angelo died. Plaintiff's and defendant's ownership rights were created by the deed, and those rights determined what interests they would have upon Angelo's death. The tenancies did not change between the time the deed was executed and the time Angelo died.
To summarize, plaintiff and defendant each owned fifty percent of the property upon Angelo's death. That result is obtained regardless of whether plaintiff and Angelo were tenants by the entirety, or joint tenants. The trial court did not err in concluding that plaintiff and defendant each owned a fifty percent interest in the property when Angelo died. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (explaining that if a trial court's order is valid, it will be affirmed, even if the reason for affirmance differs from the basis for the trial court's decision), abrogated on other grounds, Commercial Realty & Res. Corp. v. First Atlantic Properties, Co., 122 N.J. 546 (1991).
In her final point, plaintiff argues that the trial court incorrectly determined the parties' respective financial abilities and contributions to both the purchase of, and capital improvements to, the Seaside Park property. She contends the court's findings were "contrary to the weight of the credible, relevant and often uncontradicted testimony." Specifically, she claims the court indicated that it would give the parties credit only for financial contributions to capital improvements, and would not give anyone credit for any expenditure not proven by corroborating evidence, but ultimately based its award on uncorroborated expenses and contributions other than for capital improvements.
We reiterate that the "dispositive consideration here controlling is the pervading principle in this kind of matter, particularly applicable where there is a partition in equity, that the allocation of charges and credits . . . be governed by the basic justice and fairness of the situation." Baird v. Moore, 50 N.J. Super. 156, 173 (App. Div. 1958). We also note the difficult task confronting the trial court, evidenced by its observation that,
[u]nfortunately, neither party's willing to acknowledge the contribution of the other in the maintenance of this home. The original demands have changed during the course of this trial. Their positions have evolved into unrealistic expectations of the outcome of this lawsuit without any recognition of the contribution of the other.Having considered the extensive but conflicting testimony and the voluminous documents introduced by the parties, as well as the application by the trial court of the legal principles set forth in our decision in Baird, we find no reason to disturb the court's factual determinations or legal conclusions concerning the allocation of credits between plaintiff and defendant. Contrary to plaintiff's argument, the court's findings are supported by adequate evidence in the record, and we find no basis for disturbing the court's credibility determinations. Plaintiff's argument is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION