Perkins v. Perkins

• Decision Date: 27 April 1978
• Citation: 159 N.J.Super. 243,387 A.2d 1211
• Parties: Martha PERKINS, Plaintiff-Respondent and Cross-Appellant, v. Charles Edward PERKINS, Defendant-Appellant and Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 243

159 N.J.Super. 243

387 A.2d 1211

Martha PERKINS, Plaintiff-Respondent and Cross-Appellant, v. Charles Edward PERKINS, Defendant-Appellant and Cross-Respondent.

Superior Court of New Jersey,Appellate Division.

Submitted April 10, 1978.

Decided April 27, 1978.

Nathan W. Davis, Jr., Atlantic City, for defendant-appellant and cross-respondent.

Sherman L. Kendis, Atlantic City, for plaintiff-respondent and cross-appellant.

Before Judges FRITZ, BOTTER and ARD.

PER CURIAM.

This appeal and cross-appeal concern only the provisions for equitable distribution of marital property contained in the judgment of divorce.

Defendant contends that the trial judge erred by granting plaintiff an excessive portion of the marital assets and by requiring defendant to pay a counsel fee of $500 to plaintiff's attorney. The assets that were divided were bank accounts, certificates of deposit and the marital home. ¹ Plaintiff was awarded $10,000, representing approximately one-third of the savings taken at face value ² and $12,500, representing her one-half interest in the equity of the home. Plaintiff cross-appealed, contending that she should have received one-half of the cash savings in addition to one-half of the equity in the home.

Initially the trial judge intended to award plaintiff one-third of the equity in the house and one-half of the savings. That proposed distribution was based in part on the fact that defendant owned the home before marrying plaintiff and in part on the fact that plaintiff was gainfully employed throughout the marriage, although she also continued her education during a portion of their married years. Such a distribution would have given plaintiff approximately $23,000 based entirely on the equities as the trial judge saw them.

However, at a continued hearing the judge announced that he had reconsidered the wife's claim to a one-half interest in the house. Defendant had conveyed the property to himself and his wife during their marriage. Defendant testified that he did this because he thought that his wife should "have some equity in the property," that she should get "at the time half of the equity." Accordingly, the trial judge determined that defendant had made a gift to his wife of an equal share in the property. Therefore, the judge concluded that plaintiff should be awarded an amount equal to one-half of the equity in the property. However, in conformity with his original determination of what would be an equitable distribution of all property, he reduced her share of the savings to a sum equal to approximately one-third of their unencumbered or face value.

The evidence in the case supports the trial judge's conclusion that defendant's conveyance of the property to himself and his wife constituted a gift and created a tenancy by the entirety. N.J.S.A. 37:2-18; Herr v. Herr, 13 N.J. 79, 88-89, 98A.2d 55 (1953); Trotta v. Trotta, 103 N.J.Super. 295, 298-300, 247 A.2d 145 (App.Div.1968), certif. den. 53 N.J. 516, 251 A.2d 453 (1969). However, assets acquired by gift during marriage are subject to distribution equitably. Painter v. Painter, 65 N.J. 196, 215-216, 320 A.2d 484 (1974). As such, the entire equity in the home was available for equitable distribution, notwithstanding that plaintiff had been given an estate by the entirety in the property. In other words, the trial judge had the right not to award plaintiff a one-half interest in the equity in the house if the factors to be considered in making an equitable distribution justified an unequal division of that property. As was said in Painter, supra, at 213, 320 A.2d at 493: "The courts are now empowered to allocate marital assets between the spouses, regardless of ownership." See Gemignani v. Gemignani, 146 N.J.Super. 278, 282, 369 A.2d 942 (App.Div.1977).

Although the trial judge felt compelled to award the wife one-half of the equity in the house, he adjusted her award of the cash savings to reflect his initial determination of what constituted an equitable division of all the property. It is clear that the final distribution is approximately equal in value to the judge's initial determination although he used different calculations to reach the same result. The final determination is amply supported by the evidence in the case and does not represent an abuse of discretion by the judge. We also find no abuse of discretion in the award of counsel fees.

Defendant's premise that the assets should be divided solely in proportion to the financial contribution of each party during the marriage is clearly incorrect. Chalmers v. Chalmers, 65 N.J. 186, 194, 320 A.2d 478 (1974), tells us that each party to a marriage presumably contributes to the enterprise that produces an accumulation of property. Rothman v. Rothman,65 N.J. 219, 229, 320 A.2d 496 (1974), expresses the view that marriage is a shared undertaking to which both parties...