Monte v. Monte

• Decision Date: 16 July 1986
• Citation: 515 A.2d 1233,212 N.J.Super. 557
• Parties: Nicholas R. MONTE, Jr., Plaintiff-Appellant, v. Virginia MONTE, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 557

212 N.J.Super. 557

515 A.2d 1233

Nicholas R. MONTE, Jr., Plaintiff-Appellant, v. Virginia MONTE, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued May 28, 1986.

Decided July 16, 1986.

Schachter, Cohn, Trombadore & Offen, Somerville, for plaintiff-appellant (John J. Trombadore, on the brief).

Wilentz, Goldman & Spitzer, Woodbridge, for defendant-respondent (Bonnie S.M. Reiss and Jean R. Campbell, on the brief).

Before Judges MICHELS, GAULKIN and DEIGHAN.

DEIGHAN, J.A.D.

Plaintiff Nicholas R. Monte, Jr., appeals from an award of equitable distribution and support in a final divorce judgment entered on December 12, 1984. The trial court divided the assets equally but did not obligate defendant Virginia Monte to repay loans from plaintiff's family. Also, $250 per week was awarded for unallocated support of defendant and Kristine, the parties' 17 year old daughter who was living with defendant. The parties had been in financial straits, not only at the time of the divorce, but for several years prior thereto. Plaintiff's real estate business had been failing for many years and he borrowed excessively; at the time of the divorce the debts apparently exceeded the marital assets, and many of the outstanding obligations were to plaintiff's family. Defendant claimed she had no knowledge of and received no benefit from any of the funds borrowed from plaintiff's family.

On this appeal plaintiff contends that the trial court (1) failed to make findings of fact and conclusions of law to support its determinations; (2) failed to apply proper legal standards for apportionment of the marital debts in holding him solely responsible for the loans, and (3) erred in awarding defendant alimony where the record indicates that her earnings were comparable to those of plaintiff and that she was essentially self-sufficient.

Subsequent to this appeal, defendant moved to enforce litigant's rights and plaintiff responded with a cross motion for discovery of defendant's financial circumstances, for an order to compel defendant to file a case information statement and for a plenary hearing on support and defendant's needs. After a hearing on May 15, 1985, the trial court both granted and denied the defendant's applications and denied all of the applications of plaintiff. On this appeal, defendant filed an appendix which consists of the transcript of the hearing on the motions held May 15, 1985 and submits that the transcript is a part of the record because the trial court "continued its jurisdiction of this matter, and as such the record below was expanded." Plaintiff vigorously objects to the use of the motion transcript to supplement the record to defeat his contentions that the trial court failed to make findings of fact and conclusions of law in support of its determinations. From our review of the transcript of the hearing held on May 15, 1985, there is no indication that the trial court was elaborating on the determinations made at the original divorce hearing. Also, no statement was filed after a notice of appeal was served upon the trial court. R. 2:5-1(b). Although the trial court retains jurisdiction, R. 2:9-1(a), to enforce judgments and orders pursuant to R. 1:10, nevertheless defendant failed to move to supplement the record as required by R. 2:5-5(a).

We deem it unnecessary to pass upon the issue of whether the transcript hearing on May 15, 1985 to enforce litigant's rights is a part of the record. The facts developed at the enforcement hearing are not relevant to the issue of equitable distribution. Unlike an award of alimony which can be adjusted after divorce to reflect unanticipated changes in the parties' circumstances, a property division or equitable distribution may not be adjusted. Mahoney v. Mahoney, 91 N.J. 488, 498, 453 A.2d 527 (1982). Further, in our view, the findings and conclusions, even as supplemented, are deficient.

The parties were married on November 16, 1957 and two daughters, Karen and Kristine, who at the time of the divorce hearing were 23 and 17 years of age respectively, were born of the marriage. Plaintiff, who was engaged in various aspects of real estate transactions throughout the marriage, purchased a real estate corporation known as L & M Realty in 1967. All shares of stock of the corporation were either issued or transferred to him. The real estate office was located in a building owned by plaintiff and defendant.

Initially, the business prospered and in 1974 two additional offices were opened but were subsequently closed the following year because they were a financial detriment. Plaintiff ascribes financial difficulties of his real estate business to a general depression in the real estate market and a prolonged illness which befell him in 1978. In that year he came down with what was later diagnosed as a hymoglebic migraine, causing him to be hospitalized and unable to work for over one year. L & M was struggling and, although plaintiff's accountant states in a financial report that plaintiff did not receive any income since 1980, plaintiff contends to have taken no salary from the company since 1979. During most of the marriage plaintiff supported defendant who was a homemaker; however, she was also a bookkeeper for the business for a short time after they were first married. Also, during and after plaintiff's illness she worked at L & M offices on a half-day basis for two or three years. While defendant denies it, plaintiff asserts that defendant kept the books of the company while he was ill.

Beginning in the late 1970's plaintiff began to borrow money heavily and, up to the time of the separation between the parties, had borrowed large sums of money from banks, friends, relatives and mortgage companies. He testified that he borrowed for personal reasons as well as business. Plaintiff contends that he borrowed an aggregate of approximately $58,000 from various members of his family. He also borrowed $5,500 against a life insurance policy. At the time of the trial there was an outstanding judgment against plaintiff and defendant in the sum of $6,000 for loans from plaintiff's mother and sister. These obligations were eventually satisfied out of the proceeds of the sale of the marital home.

While none of the loans from plaintiff's family were evidenced in writing, plaintiff nevertheless testified that he agreed to repay the loans to members of his family if he sold his business or office building or if he got on his feet again financially. Plaintiff indicated that all the funds from the various loans were deposited in a joint-checking account in a bank in Edison in the names of both parties and were used for family expenses. However, he could not recount which expenses had been paid with the money from those loans.

Defendant sought to relate the increased borrowing to an extramarital affair plaintiff was having with an employee. She produced letters written in 1980 indicating that the employee became pregnant and that plaintiff had set aside $5,000 for himself and the employee. Plaintiff admitted to having an affair and conceded that he had taken the employee to Vermont and may have given her gifts but he denied that any children were born from that relationship.

The trial court found, among other things, that the first and second mortgages on the marital home and the judgment resulting from the loans to defendant's family were the responsibility of both parties. These debts were paid out of the proceeds of the sale of the marital home. The court also held that defendant should not be charged with the debts to plaintiff's family or a debt to Commercial Trust:

Any remaining monies are to be divided 50% Mrs. Monte and 50% Mr. Monte. I specifically find that all the debts incurred by Mr. Monte to members of his family are not charges against Mrs. Monte's share in the sale of the proceeds of the house. Given the marital history between these people, certainly she should have been told; she says she wasn't and I find as a matter of fact she was unaware of the encumbrancing of her marital assets. The only note she was aware of was one to one bank and she did not consent to the extension of that note and she alleged that they were not her signatures on the extension. Therefore I do not hold it as a debt of hers. Her husband chose to continue the extension for his own purposes, all be it to keep his business going and whatever else had had going.

The trial court's reference to a loan from Commercial Trust, which defendant originally agreed to but did not consent to any extensions, is apparently irrelevant as it appears that the loan had already been repaid. There was no mention made by the trial court concerning other outstanding obligations such as department store accounts, purchases for personal purposes, credit card balances, a life insurance loan or a boat loan, all of which plaintiff contends should have been charged to both parties. From the accountant's report dated March 19, 1984, attached to plaintiff's preliminary disclosure statement, it appears that there were $11,643 of accounts payable for credit card obligations and general creditors including an estimate of $5,000 for professional fees. No explanation is made concerning the professional fees. In addition, plaintiff's financial statement itemizes loans and notes payable to persons other than banks amounting to $82,245 and loans and notes payable to banks in the sum of $10,810.

I.

The final judgment of divorce entered December 12, 1984, allocates certain debts such as the first and second mortgages as well as other obligations to be the responsibility of both parties but provides that the defendant shall not be charged for the debts to plaintiff's family. The judgment further allocated a debt for a Cadillac to be the responsibility of plaintiff but made no itemization as to the nature and amount of other debts or other obligations. As to assets, there is a...