Kothari v. Kothari

• Decision Date: 15 April 1992
• Citation: 255 N.J.Super. 500,605 A.2d 750
• Parties: Dipti KOTHARI, Plaintiff-Respondent, v. Ajay KOTHARI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 500

255 N.J.Super. 500

605 A.2d 750

Dipti KOTHARI, Plaintiff-Respondent, v. Ajay KOTHARI, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued March 3, 1992.

Decided April 15, 1992.

James J. Armstrong, Jr., Trenton, for appellant.

Edward B. Meredith, Trenton, for respondent (Meredith, Meredith & Chase, attorneys; Regina H. Meredith, on the brief).

Before Judges ANTELL, BAIME and THOMAS.

The opinion of the court was delivered by

ANTELL, P.J.A.D.

In this matrimonial action, defendant (former husband) appeals from portions of a divorce judgment entered on August 9, 1990, determining that certain monies paid during the marriage by defendant to his parents and other monies spent on his own personal requirements to be includable within the marital estate. The judgment also orders payment of 50% thereof to plaintiff (former wife) as her partial share of equitable distribution. Although not clearly stated, the trial court seems to have found that these monies were "dissipated" within the meaning of N.J.S.A. 2A:34-23.1i, and the significant question presented on this appeal is whether that conclusion is supported by the evidence and the trial court's findings.

Also challenged by defendant are the trial court's calculations in arriving at its award of equitable distribution, alimony and child support. He further complains that the court erred in ordering that the child of the marriage be designated as the sole beneficiary of defendant's life insurance policies and in awarding counsel fees in favor of plaintiff.

The parties were married in Baroda, Gujarat, India, in a religious ceremony on April 30, 1981. Plaintiff was then a United States citizen, and after the marriage ceremony both parties took up residence together in New Jersey. Defendant had become a medical doctor in India in February 1979 and when he arrived in this country on September 2, 1981, he devoted his time in preparation for his licensing examinations. The couple lived off plaintiff's earnings and resided rent-free successively with plaintiff's parents in Trenton, plaintiff's sister, and then with a friend and former schoolmate of defendant, Dr. Harish Patel. One child was born of the marriage on May 27, 1985.

The parties agree that the marriage was beset with strife from the beginning. Before plaintiff brought this divorce action in New Jersey on August 7, 1989, defendant had instituted divorce proceedings in Cook County, Illinois on August 5, 1985, in Butler County, Ohio in October 1987, and in the District of Narol, Ahmedabad, India in July 1988, none of which proceeded to a conclusion.

One of the principal impediments to the success of the marriage was defendant's inability to abide the cultural differences between American and Indian society. Another was defendant's regular acquiescence in the demands of his parents that he supply them with money in accordance with Indian custom.

Among the acts of extreme cruelty alleged in the second count of her complaint, plaintiff specified that "[d]efendant sent outrageous amounts of money to his family" and "has not financially supported Plaintiff or their child." Defendant conceded giving money to his parents, but claimed these were funds that "he was bound to return to ... [his] parents for monies advanced to him in pursuit of his education and other expenses till he landed in USA [in 1981]." On July 12, 1990, the trial court rendered an oral decision, finding that plaintiff's grounds of desertion and extreme cruelty had been proved, and on August 9, 1990, it signed a divorce judgment.

The court found that, as of August 7, 1989, the date plaintiff filed her complaint, the parties' marriage had accumulated essentially "nothing." It noted, though, that between the date of the marriage on April 30, 1981, and the filing of the divorce complaint on August 7, 1989, through defendant's manipulation the funds that the parties had acquired during the marriage "went somewhere," and concluded that plaintiff was entitled to enjoy a 50% interest in those assets.

First, the court found defendant had sent $30,000 to his parents while they resided in India between October 1981 and September 1987. Defendant testified that he had sent this money to his parents to satisfy his moral obligation to repay the money he received from them to finance his medical education and initial passage to America. The court determined, however, that there was "no basis to find that a debt was owed." It also observed that, while plaintiff "knew that monies were being sent," it was also "clear that she was objecting to the fact that these monies were being sent." Thus, as to that $30,000, the court declared them to be "marital assets that were sent without the real consent of ... [plaintiff], or the recognition of them as a [debt] repayment." Half of that sum, or $15,000, was therefore ordered distributed to plaintiff.

Second, the court found that, just before defendant returned with his parents to India in March 1988, he established a $19,000 fund by liquidating marital assets, acquired through the efforts of both parties, then in his possession and took that fund with him to India. The court found that defendant used the money "for some living expenses [in India] to establish a practice again" and in December 1988, after buying airplane tickets for himself and his parents, defendant "returned to the United States with $11,000" that defendant "ended up spending for his own purposes." The court also noted that "during this time period [September 1987 to March 1988]" defendant was "planning and thinking of divorce." Accordingly, this money too was held to constitute marital funds of which plaintiff was awarded a one-half share in the amount of $9,500.

Third, the court concluded that defendant had expended the sum of $58,624 for the support of his parents during the 32-month period they lived with defendant after his return to the United States from India. As to these monies, the court awarded a 50% share to plaintiff in the amount of $29,312.

N.J.S.A. 2A:34-23.1i requires the court, in making an equitable distribution of marital property, to consider the "contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property." (Emphasis added). The Legislature did not define "dissipation" of marital property. It is clear, however, that the concept is a plastic one, suited to fit the demands of the individual case. As the court stated in Head v. Head, 168 Ill.App.3d 697, 119 Ill.Dec. 549, 552-53, 523 N.E.2d 17, 20-21 (1 Dist.1988), with respect to a similar statute:

Dissipation may be found where a spouse uses marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship was in serious jeopardy.

Whether a given course of conduct constitutes dissipation within the meaning of the Act depends upon the facts and circumstances of the particular case. Upon review, the trial court's determination regarding the dissipation of assets lies within the sole discretion of the trial court and will not be reversed absent an abuse of discretion. (citations omitted).

As aptly noted in Annotation, Spouse's Dissipation Of Marital Assets Prior To The Divorce As A Factor In Divorce Court's Determination Of Property Division, 41 A.L.R. 4th 416, 419, n. 1 (1985), the term "dissipation" in a divorce context is "not susceptible to a precise definition."

When one party to a divorce proceeding spends marital funds extravagantly, or merely for his or her own benefit, that obviously diminishes the amount of property which is available for distribution by the divorce court. On the other hand, until such time as the parties are contemplating a divorce, they are generally vested with the authority to spend marital funds for their own enjoyment, such as movies, dinners, vacations, and the like. The question of dissipation of marital assets thus involves an attempt to accommodate these two conflicting interests in the marital estate. [Id. at 420].

While the courts that have considered this question have "uniformly held that one spouse's actual dissipation of marital property is an appropriate factor for the court to consider when dividing the marital estate," uniformity deteriorates when those courts addressed the "more complicated" issue of whether the purpose of the expenditure "amounts to dissipation under the circumstances." Id. at 420-21.

In resolving this issue, courts have considered a variety of factors, including, "most commonly," the following:

(1) the proximity of the expenditure to the parties' separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditure benefitted the "joint" marital enterprise or was for the benefit of one spouse to the exclusion of the other, and (4) the need for, and amount of, the expenditure. [Id. at 421].

The question ultimately to be answered by a weighing of these considerations is whether the assets were expended by one spouse with the intent of diminishing the other spouse's share of the marital estate. Robinette v. Robinette, 736 S.W.2d 351, 354 (Ky.Ct.App.1987); Bollenbach v. Bollenbach, 285 Minn. 418, 175 N.W.2d 148, 155 (1970). We leave for future cases the question of whether the dissipation concept also includes expenditures of marital assets, even where the parties are not considering separation, where the expenditures are made for purposes inimical to the marriage and in association with some form of matrimonial misconduct.

The analytical format suggested above is soundly reasoned and not incompatible with New Jersey precedents in comparable cases. See Goldman v. Goldman, 248 N.J.Super. 10, 589 A.2d 1358 (Ch.Div.1991); Siegel v. Siegel, 241 N.J.Super. 12, 574 A.2d 54 (Ch.Div.1990); Baskinger v. Baskinger, 129 N.J.Eq. 224, 18 A.2d...