S.G. VS. F.G. (FM-02-0303-13, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4665-15T1
A-1923-16T1
S.G.,
Plaintiff-Appellant,
v.
F.G.,
Defendant-Respondent.
___________________________
S.G.,
Plaintiff-Respondent,
v.
F.G.,
Defendant-Appellant.
___________________________
Submitted October 17, 2018 – Decided February 1, 2019
Before Judges Alvarez and Reisner.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0303-13.
Joseph & Smargiassi, LLC, attorneys for appellant S.G.
in A-4665-15 and respondent S.G. in A-1923-16 (Mario
A. Joseph, of counsel; John Smargiassi, on the briefs).
Newsome O'Donnell, LLC, attorneys for respondent
F.G. in A-4665-15 and appellant F.G. in A-1923-16
(Edward J. O'Donnell, of counsel; Edward J. O'Donnell
and Rebecca E. Frino, on the briefs).
PER CURIAM
These two appeals, which we consolidate for purposes of this opinion,
arise from a May 25, 2016 final judgment of divorce, entered after a twenty-two
day trial between plaintiff-husband S.G. and defendant-wife F.G.1 Assignment
Judge Bonnie J. Mizdol issued a sixty-three page written opinion, making
detailed credibility determinations and factual findings, and exhaustively
addressing all of the relevant factors pertaining to equitable distribution,
alimony, and counsel fees. 2
1
We use the parties' initials because the case involves allegations of sexual
assault and domestic violence. We addressed the relevant evidence in detail in
our earlier opinion arising from the parties' domestic violence trial. S.G. v. F.G.,
No. A-4646-13 (App. Div. Mar. 16, 2016).
2
The judge later entered a series of amended judgments, dated July 28, 2016,
August 1, 2016, November 2, 2016, and November 29, 2016. The first three
A-4665-15T1
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Each party has challenged portions of the divorce judgment. Defendant
contends that the judge erred in determining that certain of plaintiff's assets were
premarital and exempt from equitable distribution; that the judge erred in
applying collateral estoppel concerning a finding that defendant spoliated
evidence; and the judge erred in determining that one of the parties' business
concerns had no value. Plaintiff disagrees with those points and contends that
defendant's appeal is untimely and barred by judicial estoppel. In his own
appeal, plaintiff asserts that the judge should not have equally divided the
marital asserts, due to defendant's wrongdoing and lack of contribution to the
marital enterprise; the court erred in deciding the amount and duration of
amended judgments corrected mathematical errors in the initial judgment and
adjusted certain dates for compliance. The November 29 amendment extended
plaintiff's time to post a supersedeas bond; the parties did not brief that issue,
and any objection to the timing issue is waived. Pertinent to this appeal, the
judge issued an oral opinion on July 28, 2016, and a written statement of reasons
with the July 28 amended judgment. She issued a written opinion with the
August 1, 2016 amended judgment. She issued an oral opinion on October 28,
2016, stating her reasons for the November 2, 2016 amended judgment, and also
issued a written statement of reasons for the November 2 amendment. Plaintiff
amended his notice of appeal to include the first two amendments. Defendant's
appeal included all four amendments. Defendant's notice of appeal was filed
within seventy-five days after the last substantive amended judgment on
November 2, 2016, and in the interests of justice we deem her January 12, 2017
notice of appeal to be timely.
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alimony; the court erred in distributing certain premarital assets to defendant 3;
and the court abused discretion in denying plaintiff's application for counsel
fees. We find no merit in any of the parties' respective arguments, and except
as briefly addressed in this opinion, they do not warrant further discussion. R.
2:11-3(e)(1)(E).
In deciding this appeal, we do not write on a clean slate. We owe
tremendous deference to Judge Mizdol's expertise and her evaluation of witness
credibility. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); M.G. v. S.M.,
__ N.J. Super. __, __ (App. Div. 2018) (slip op. at 7-8). We will not disturb the
judge's factual findings so long as they are supported by substantial credible
evidence. Cesare, 154 N.J. at 411-12. Absent an abuse of discretion, we will
not interfere with the judge's distribution of marital assets, award of alimony,
and decision whether to award counsel fees. See Clark v. Clark, 429 N.J. Super.
61, 71 (App. Div. 2012); Gonzalez-Posse v. Ricciardulli, 410 N.J. Super. 340,
354 (App. Div. 2009); Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div.
2008). We review a trial court's legal interpretations de novo, but we review
3
In the third amended judgment dated November 2, 2016, Judge Mizdol gave
plaintiff credit for additional premarital assets and reduced defendant's equitable
distribution award accordingly. As previously noted, plaintiff did not appeal
from that order.
A-4665-15T1
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evidentiary rulings for abuse of discretion. See Estate of Hanges v. Metro. Prop.
& Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).
After carefully reviewing the extensive record, including the trial
transcripts, we find no basis to disturb the judge's credibility determinations or
her evaluation of the experts' financial testimony. The judge's factual findings
are supported by substantial credible evidence. In light of the facts the judge
found and the testimony she deemed credible, we find no abuse of discretion or
other legal errors in her apportionment of assets between the parties, her award
to defendant of temporary alimony, and her determination that each party should
bear his or her own counsel fees. We affirm the divorce judgment and amended
judgments, substantially for the reasons Judge Mizdol stated in her written
opinion accompanying the final divorce judgment, and the oral and written
opinions she issued with the amended judgments on appeal. We add the
following comments.
The trial evidence is detailed in Judge Mizdol's May 25, 2016 opinion,
and a brief summary will suffice here. The parties' marriage lasted seven years,
during which they lived a very affluent lifestyle. At all times, plaintiff was a
high-earning financial professional. Defendant was trained as an ultrasound
technician, but at plaintiff's request, she did not work during the marriage.
A-4665-15T1
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The divorce was highly acrimonious. Around the time of the divorce
filing, each party accused the other of domestic violence (DV). After a twenty-
day DV trial, in which both sides were represented by counsel, Judge Mary F.
Thurber found, among other things, that defendant threatened plaintiff with a
knife, falsely accused plaintiff of sexually assaulting her, and intentionally
destroyed some of plaintiff's computerized financial records. Judge Thurber
found that the destruction of the computer records was part of defendant's
campaign of harassment against plaintiff, and it was one of the reasons plaintiff
needed a final restraining order (FRO). 4 In affirming Judge Thurber's decision
on appeal, we cited defendant's intentional destruction of plaintiff's
computerized financial records as one factor supporting issuance of the FRO.
S.G. v. F.G. (slip op. at 10-11).
In the divorce trial, Judge Mizdol applied the doctrine of collateral
estoppel in determining that defendant intentionally destroyed the computer
records. However, Judge Mizdol based her decision about the content of the
destroyed records on the testimony she heard in this case. After finding that the
records consisted of spreadsheets and other documents tracking plaintiff's
4
In addition to issuing the FRO, Judge Thurber ordered defendant to pay
plaintiff approximately $142,000 in compensatory damages.
A-4665-15T1
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premarital assets, Judge Mizdol sanctioned defendant for spoliation of evidence
by drawing a negative inference against her concerning the destroyed records.
We find no error in the application of collateral estoppel. The record-
destruction issue was fully litigated in the first trial, and the discrete finding –
that defendant intentionally destroyed the computer records – was an essential
component of Judge Thurber's decision. See Pivnick v. Beck, 326 N.J. Super.
474, 485 (App. Div. 1999). We also find no abuse of Judge Mizdol's discretion
in her choice of a sanction for the spoliation of evidence. See Rosenblit v.
Zimmerman, 166 N.J. 391, 402-03 (2001).
Next, we briefly address the valuation of a financial management business
that the parties created during the marriage. After hearing testimony from the
parties and their respective financial experts, Judge Mizdol concluded that the
business had steadily lost value despite plaintiff's good faith efforts to keep the
company going. She concluded that by the time of the divorce filing in July
2012, the fair value of the business was zero. In reaching that conclusion, the
judge considered that defendant's valuation expert used projected rather than
actual financial figures for 2012, and she found the approach espoused by
plaintiff's expert – using actual numbers – to be more reliable. We find no basis
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to second-guess the judge's reasonable evaluation of the expert testimony. See
In re Accutane Litigation, 234 N.J. 340, 390-91 (2018).
We find no error in the judge's decision that a portion of plaintiff's 2005
bonus, earned through plaintiff's work efforts prior to the parties' August 2005
marriage, was a premarital asset. See Thieme v. Aucoin-Thieme, 227 N.J. 269,
286-87 (2016). Defendant's factual assertions about the bonus, and the reasons
it was awarded, are not supported by any citations to the record.
The parties' remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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