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Separation Agreement and Equitable Distribution of Stocks

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									                     NOT FOR PUBLICATION WITHOUT THE
                    APPROVAL OF THE APPELLATE DIVISION

                                           SUPERIOR COURT OF NEW JERSEY
                                           APPELLATE DIVISION
                                           DOCKET NO. A-5721-03T1



ANNA SALESKY,

            Plaintiff-Respondent/
            Cross-Appellant,

v.

LEONARD SALESKY,

          Defendant-Appellant/
          Cross-Respondent.
________________________________________________________________

            Submitted January 10, 2006 - Decided February 2, 2006

            Before Judges Lisa and S.L. Reisner.

            On appeal from the Superior Court of New
            Jersey, Chancery Division, Family Part,
            Burlington County, FM-3-1149-01X.

            Leonard       Salesky,   appellant/cross-respondent
            pro se.

            Domers    &    Bonamassa,   attorneys   for
            respondent/cross-appellant (Alan Domers, of
            counsel; Sheryl D. Richards, of counsel and
            on the brief).

PER CURIAM

     This    is    a   matrimonial    case.    Anna   and   Leonard   Salesky

married     in    1959.      They    raised   four    children;   three    are

emancipated and one is deceased.           They separated in 1984.        From
1975    to    1984,      they    devoted     a    significant    portion        of   their

finances to develop Leonard's business, LS Scientific.                           When the

parties      separated,     Anna      was    employed    at   Siemans     Corporation.

She retired in 1999.

       In March 2001, Anna filed a divorce complaint.                          During the

pendency      of   the    divorce      proceedings,      Judge    Wellerson       ordered

pendente lite support for Anna and also ordered Leonard to pay a

portion of her counsel fees.                 The divorce litigation was marked

by ongoing discovery disputes and enforcement proceedings.                                A

domestic      violence      incident        occurred    in    December    2002,      as   a

result of which Anna amended her complaint to include a Tevis1

claim and Leonard was indicted for attempted murder.                           The Tevis

claim was severed and transferred to the Law Division and is not

an issue on appeal.             Subsequent to the completion of the divorce

proceeding, Leonard was tried and convicted of attempted murder

and is now serving a State prison sentence.

       The divorce trial was conducted over seven days between

January and March 2004.               On May 7, 2004, Judge Wellerson issued

a thirty-seven page single-spaced written opinion disposing of

the    contested      issues     in    the    case,    namely    alimony,       equitable

distribution of property and attorneys' fees.                          At the time of

the    divorce,     Leonard      was    sixty-nine      years    old     and    Anna   was

1
    Tevis v. Tevis, 79 N.J. 422 (1979).



                                              2                                  A-5721-03T1
sixty-five.        Both parties were retired.             Leonard was receiving

or   entitled      to   receive    social     security    benefits.           Anna    was

receiving social security and pension benefits.                       Anna's benefits

were   less    than     Leonard's.       Because   of     the    extreme      acrimony

between      the    parties,      Leonard's     demonstrated          resistance      to

complying with court orders, and the age of the parties, Judge

Wellerson       determined        that    an     alimony        award        would    be

counterproductive.          In    lieu   of    alimony,    he    awarded       Anna   an

additional sum, $36,505.13, representing the present value of

the payments that would be required to equalize the parties'

social security and retirement benefits, projected over Anna's

life expectancy.        Subject to a credit for that amount, the judge

divided the marital assets equally.

       The judge did not award Anna any additional attorneys' fees

beyond those that were awarded pendente lite.                    He concluded that

with   the    equitable    distribution        award    she     had    the   financial

ability to pay the balance of her legal fees on her own and,

considering the other factors applicable to counsel fee awards,

there was no justifiable basis to render an additional award.

       Leonard appealed and makes the following arguments:

              I.   THE TRIAL COURT ERRED BY AWARDING
              PLAINTIFF MONIES THAT WERE EARNED AFTER THE
              TIME OF FILING.




                                          3                                    A-5721-03T1
    II. THE TRIAL COURT ERRED BY FAILING TO
    CONSIDER THE PROPERTY SETTLEMENT THE PARTIES
    DEVISED AT THE TIME OF SEPARATION.

    III. THE TRIAL COURT ERRED WHEN IT INCLUDED
    DEFENDANT'S INHERITANCE AS A PORTION OF THE
    MARITAL ESTATE.

    IV. THE TRIAL COURT [ERRED] BY ALLOWING
    TESTIMONY IN THE DIVORCE PROCEEDING THAT
    SHOULD HAVE BEEN A PART OF PLAINTIFF'S TEVIS
    CLAIM.

    V.   THE TRIAL COURT ERRED WHEN IT ALLOWED
    THE TESTIMONY OF A WITNESS THAT SHOULD HAVE
    BEEN SEQUESTERED.

    VI. THE COURT'S BIAS TOWARDS THE PLAINTIFF
    PREJUDICED   THE   DEFENDANT'S ABILITY  TO
    RECEIVE A FAIR TRIAL.

    VII. THE TRIAL COURT'S AWARD TO PLAINTIFF
    VIOLATED BOTH THE 13TH AMENDMENT TO THE U.S.
    CONSTITUTION  AND   THE  NEW   JERSEY  STATE
    CONSTITUTION.

Anna cross-appealed and makes these arguments:

    I.   THE TRIAL COURT ERRED BY FAILING TO
    AWARD PLAINTIFF ADDITIONAL COUNSEL FEES AND
    COSTS.

         A.   Additional   Counsel  Fees  Should
    Have Been Awarded For Defendant's Failure To
    Supply Discovery.
         B.   Plaintiff Should Have Been Awarded
    Additional Counsel Fees And Costs.

    II. THE TRIAL COURT ERRED BY FAILING TO
    DISTRIBUTE THE SWISS BANK ACCOUNT HELD BY
    DEFENDANT.

    III. THE TRIAL COURT ERRED BY FAILING TO
    COMPENSATE PLAINTIFF FOR THE DISSIPATION OF
    ASSETS AND CANCELLATION OF INSURANCE BY THE
    DEFENDANT PENDENTE LITE.



                          4                        A-5721-03T1
              IV. THE TRIAL COURT ERRED BY FAILING TO
              PROVIDE PLAINTIFF WITH A CREDIT FOR THE
              MONIES UTILIZED BY DEFENDANT FROM JOINT
              ASSETS   IN  ORDER TO  PAY  HIS  ALIMONY
              OBLIGATION.

    Based upon our review of the record, we are satisfied that

the judgment rendered by the trial court is based on findings of

fact that are adequately supported by the evidence, R. 2:11-

3(e)(1)(A), the judge's discretionary rulings did not constitute

a mistaken exercise of discretion, and, except to the extent

discussed below, the arguments made on the appeal and cross-

appeal lack sufficient merit to warrant discussion in a written

opinion.      R. 2:11-3(e)(1)(E).           We affirm substantially for the

reasons expressed by Judge Wellerson in his thorough and well-

reasoned written opinion of May 7, 2004.

    The principal substantive issues raised by the parties on

appeal     deal      with    equitable      distribution         of     property    and

attorneys' fees.            With respect to equitable distribution, we

will not disturb a trial judge's determination whether an asset

should be subject to equitable distribution or valuation of the

asset    if    the    judge's      findings         were    supported    by   adequate

credible evidence.          Rothman v. Rothman, 65 N.J. 219, 233 (1974);

Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div.

1978).        We   will     not   disturb       a   trial    judge's    determination

regarding the amount and manner of division of property if there



                                            5                                 A-5721-03T1
was no mistaken exercise of discretion.                       Borodinsky, supra, 162

N.J. Super. at 444.

       Leonard      argues   that     he    opened      the   Fremont     Money     Market

account with money earned by his business after the divorce

complaint was filed.              However, he admitted that $52,500 was

transferred into that account from the Vanguard Prime account,

which existed prior to filing.                   Thus, the funds constituted a

transfer     of     one   marital     asset      to    another.         See    Goldman    v.

Goldman, 275 N.J. Super. 452, 458 (App. Div.), certif. denied,

139 N.J. 185 (1994).             Further, Leonard did not provide records

that    would       establish    that      the   funds    were    derived       from     his

business after the filing of the complaint.                       There was no error

in     the   judge's       inclusion        of    these       funds      for    equitable

distribution.

       Leonard       contended      that     there      should     be     no    equitable

distribution of property in the divorce proceeding because the

parties,     at     the   time   of     their    separation,       entered       into    and

implemented a marital agreement.                      He relies upon a deed dated

April 23, 1985, conveying the marital home to Anna.                               The deed

bore a notation:          "marital settlement."

       Where    married      parties       separate     and    orally     agree    to    the

division       of    property,      and     an    agreement       can     be    shown     by

sufficient proof, the court will hold the date of the agreement




                                             6                                    A-5721-03T1
as the cut-off date for which property acquired after will not

be     eligible      for    equitable        distribution.           Brandenburg       v.

Brandenburg, 83 N.J. 198, 206 (1980) (citing Di Giacomo v. Di

Giacomo,     80    N.J.    155,    159     (1979)).         Courts   require    a   "more

definite indication than mere physical separation to support a

conclusion that the marital partnership terminated prior to the

date    of   a     divorce    complaint."             Id.    at   207.     A    partial

distribution will not necessarily demonstrate the end of the

marital partnership, and therefore an agreed distribution must

involve "'a large part of [the] marital assets.'"                          Id. at 209

(quoting Di Giacomo, supra, 80 N.J. at 159).

       Here, Leonard argues that the deed executing a transfer of

one piece of real property to Anna constituted sufficient proof

that the parties had an oral agreement dividing the marital

assets.      Leonard also claimed he made support payments to Anna

during the first two years of their separation.

       As stated in Brandenburg, it must be evidenced that a large

part of the marital assets were distributed between the parties

in order for the court to find that an equitable distribution

agreement     has     occurred      prior     to   the      filing   of   the   divorce

complaint.         Leonard offered only the deed to one piece of real

property.         But there is nothing to suggest that the parties

divided      the     mutual       funds,     stocks,        automobiles,       Leonard's




                                             7                                  A-5721-03T1
business, and another piece of real property.                            Further, Judge

Wellerson found that Leonard deeded the property to Anna with

the purpose of avoiding tax consequences.                        The record supports

the    judge's    conclusion      that       the    parties      had    not   devised      an

equitable distribution agreement.

       Leonard       argues    that    the       judge    improperly      included        for

equitable distribution assets he acquired by way of inheritance

from his parents who died in 1987 and 1989.                       Anna complains that

the judge erred by failing to find that Leonard owned a Swiss

bank    account      and    include    it    in    the     distribution       of    assets.

Implicit in the judge's decision is that he found the proofs by

each    party    to    these    respective         claims      lacking.       The     record

supports the findings, and we will not disturb them.

       Finally, we comment on the judge's refusal to award Anna

additional       counsel       fees.         A     trial       judge's    determination

regarding counsel fees will not be disturbed on appeal unless

the determination constituted a mistaken exercise of discretion.

Martindell      v.    Martindell,      21     N.J.      341,    356    (1956).       "[F]ee

determinations by trial courts will be disturbed only on the

rarest occasions, and then only because of a clear abuse of

discretion."          Rendine v. Pantzer, 141 N.J. 292, 317 (1995).

Judge    Wellerson         carefully   reviewed          and   analyzed       all   of    the

appropriate       factors       pertaining         to     counsel      fee     awards      in




                                             8                                      A-5721-03T1
matrimonial actions, and he explained carefully his reasoning in

the application of those factors to this case.      We find no

mistaken exercise of discretion in the result he reached, and we

have no occasion to interfere with his order.

    Affirmed.




                               9                        A-5721-03T1

								
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