Opinion
DOCKET NO. A-4108-11T1
08-08-2013
CHARLES W. BROWN, Plaintiff-Respondent/Cross-Appellant, v. GLORIA J. GIOVANELLI-BROWN (n/k/a GLORIA J. GIOVANELLI), Defendant-Appellant/Cross-Respondent,
John M. Holliday, attorney for appellant/cross-respondent. Skey & Bhattacharya, L.L.C., attorneys for respondent/cross-appellant (W.S. Gerald Skey, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Hayden.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-450-10-C.
John M. Holliday, attorney for appellant/cross-respondent.
Skey & Bhattacharya, L.L.C., attorneys for respondent/cross-appellant (W.S. Gerald Skey, on the brief). PER CURIAM
Defendant Gloria J. Giovanelli-Brown and plaintiff Charles W. Brown appeal from certain provisions of their December 2, 2011 dual final judgment of divorce. Having carefully considered the parties' contentions in light of the applicable law, we affirm substantially for the reasons set forth in the trial judge's thorough written opinion.
The parties were married on May 8, 1987, and had no children. During the marriage, defendant was employed as a teacher in a local public school, and plaintiff was a truck driver. They also established a business known as "Alaska Trucking." Plaintiff, who did not draw a salary, ran the business and defendant financed it through a $100,000 line of credit secured against her pre-marital real estate ("the Robbinsville property"). In 1998, when the business failed and ceased operating, the balance of the loan was $96,643.50. From 1998 to 2003, defendant paid off the loan without any contribution by plaintiff.
Meanwhile, in 1995, defendant filed a medical malpractice action as a result of nerve damage she sustained during surgery in 1993. When the case settled in November 1999, defendant received a payment of $180,368.72, which she deposited into an account in her name only.
In October 1998, while the malpractice case was pending, the parties separated. Plaintiff did not file his complaint for divorce until November 18, 2009. During the separation, the parties filed their tax returns jointly as a married couple until 2006, and defendant continued to pay for plaintiff's medical and vehicle insurance and loan him money to pay certain credit card and other debt.
At the time of trial, plaintiff, then fifty-six years old, received $1282 per month in social security disability benefits, from which he paid $233 per month for child support obligations. He did not own any real estate and had no pension or savings account. Defendant, then sixty-two years old, had retired from teaching in 2004, and received $47,000 per year in pension benefits. She also earned $20,000 per year in income from her part-time position as a home instructor, and $10,000 per year in income from her part-time work at a garden center. She owned the Robbinsville property and another property in Virginia purchased with the proceeds from her medical malpractice settlement.
Defendant asserted that the marriage had ended in October 1998, the date of physical separation, and plaintiff contended that it had ended in April 2004. In his written opinion, the trial judge concluded that the parties' marriage was "irretrievably broke" on June 30, 1999, the mid-point of the year in which defendant received the proceeds of the malpractice claim settlement.
Utilizing the statutory criteria set forth in N.J.S.A. 2A:34-23.1, the judge distributed the assets and liabilities of the parties. The judge awarded plaintiff a fifty percent share of the marital coverture value of defendant's pension benefits, payable retroactive to 2004. The judge found that plaintiff was "entitled to his share of defendant's pension for the years that defendant has been receiving her pension, but has not given the plaintiff his share."
The "coverture fraction" is the proportion of years worked during the marriage to the total number of years worked. Barr v. Barr, 418 N.J. Super. 18, 34 (App. Div. 2011).
The judge also awarded plaintiff $9400, as his per quod portion of the medical malpractice settlement, and $2500 in counsel fees. Defendant received credits totaling $57,500 for payment of the business line of credit and other loans to plaintiff. The judge entered a final judgment memorializing his decision, and denied the parties' motions for reconsideration. This appeal and cross-appeal followed.
Specifically, the judge awarded the following: $35,000 (35% of the $100,000 loan for Alaska Trucking) + $9000 (plaintiff's credit card debt) + $11,000 (trailer and other credit cards) + $1500 (moving fees) + $1000 (plaintiff's child support legal fees).
The scope of our review of a trial court's equitable distribution of marital property is strictly limited. Genovese v. Genovese, 392 N.J. Super. 215, 222 (App. Div. 2007). We consider only whether the trial court's decision is supported by sufficient credible evidence in the record and whether the decision represents a proper exercise of the court's broad discretion to divide the parties' property. Sauro v. Sauro, 425 N.J. Super. 555, 573 (App. Div. 2012), certif. denied, 213 N.J. 389 (2013); Genovese, supra, 392 N.J. Super. at 223.
Moreover, we owe special deference to the expertise of the Family Part in making often difficult judgments about the lives of families and children. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 413 (1998). Here, the trial judge heard the testimony and observed the witnesses, then thoroughly articulated his findings. We will not second-guess a Family Part judge's factfindings. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
On appeal, defendant argues that the trial judge erred in awarding plaintiff a share of defendant's pension benefits, because under the doctrine of laches, the ten-year hiatus between the parties' separation in 1998 and the filing for divorce in 2009 bars plaintiff from pursuing such a claim. It is undisputed that the delay did not increase plaintiff's share of defendant's pension because the judge found, for purposes of equitable distribution, that the marriage ended in 1999. However, defendant claims she was harmed by the delay because she is now obligated to pay plaintiff a lump sum of $72,200, instead of the more manageable $760 monthly payments that would have been awarded had plaintiff filed the complaint earlier.
"Laches is an equitable doctrine, operating as an affirmative defense that precludes relief when there is an 'unexplainable and inexcusable delay' in exercising a right, which results in prejudice to another party." Fox v. Millman, 210 N.J. 401, 417 (2012) (quoting Cnty. of Morris v. Fauver, 153 N.J. 80, 105 (1998)). "Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned." Knorr v. Smeal, 178 N.J. 169, 181 (2003). "The core equitable concern in applying laches is whether a party has been harmed by the delay." Ibid. Prejudice may be shown where a party has sustained actual financial harm due to the delay. Ibid.
The doctrine of laches is applicable to divorce proceedings. Schlemm v. Schlemm, 31 N.J. 557, 572 (1960). However, laches "cannot validly be used to sponsor an inequitable result." Linek v. Korbeil, 333 N.J. Super. 464, 475 (App. Div.), certif. denied, 165 N.J. 676 (2000).
We reject defendant's laches claim because she has not demonstrated she was harmed by plaintiff's inaction. Defendant's pension benefits, derived from the joint efforts of the parties during the marriage, were subject to equitable distribution, and plaintiff was entitled to a percentage of the pension benefit upon defendant's retirement in 2004. Genovese, supra, 392 N.J. Super. at 223. Defendant failed to establish prejudice by the five-year delay between the 2004 retirement and the 2009 divorce complaint because she has had the use of her pension benefits, as well as plaintiff's share, since she retired in 2004. There is no indication in this record that plaintiff led defendant to believe that he had abandoned that right. Further, application of the doctrine would "sponsor an inequitable result," because plaintiff is entitled to a share of the pension earned during the marriage.
Moreover, the amount that accrued during the five-year delay totaled $45,600 (60 months x $760), not $72,500, an amount that apparently includes sums that accrued during the trial and appeal.
--------
Next, defendant argues that the judge erred in awarding plaintiff a retroactive share of defendant's pension, without "account[ing] for the substantial amount of taxes" she allegedly paid on the sum to be distributed. Courts must consider "tax consequences of the proposed distribution to each party." N.J.S.A. 2A:34-23.1(j). However, defendant did not raise this issue at trial, nor did she present any evidence as to the amount of taxes she allegedly paid in support of her motion for reconsideration. We therefore decline to address this issue on appeal. Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012).
Finally, plaintiff argues by way of cross-appeal that the judge erred in awarding defendant credits of $35,000 for the Alaska Trucking loan and $11,000 for the trailer and credit card debt. Plaintiff's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We conclude that the judge's findings were amply supported by the substantial, credible evidence in the record. Cesare, supra, 154 N.J. at 411-12.
In sum, we will not disturb the judge's findings of fact and conclusions of law on the appeal and cross-appeal as they are fully supported by the record and the applicable legal principles.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION