JOANN LOPEZ VS. LORRAINE CUTILLO (FM-15-0436-18, OCEAN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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 NO. A-2468-19
JOANN LOPEZ,
Plaintiff-Appellant,
v.
LORRAINE CUTILLO,
Defendant-Respondent.
________________________
Submitted March 10, 2021 – Decided July 22, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket
No. FM-15-0436-18.
Fusco & Macaluso Partners, LLC, attorneys for
appellant (Amie E. DiCola, on the brief).
Greenbaum, Rowe, Smith & Davis LLP, attorneys for
respondent (Jeanette Russell, of counsel and on the
brief).
PER CURIAM
In this dissolution matter, plaintiff Joann Lopez appeals from portions of
the Family Part's January 7, 2020 Dual Final Judgment of Divorce. On appeal,
plaintiff challenges the trial judge's alimony award to defendant Lorraine
Cutillo, as well as the judge's decision not to enforce two alleged debts. Because
the trial judge's factual findings are supported by substantial evidence and her
legal conclusions comport with applicable law, we affirm.
The parties were married on March 31, 2012. Plaintiff filed a complaint
for divorce on October 10, 2017. No children were born during the marriage,
but plaintiff has one child from a previous relationship, J.L., born in January
2011. With the exception of alimony, two alleged debts, and attorney's fees, all
aspects of the divorce were resolved by consent orders.
Plaintiff has been a police officer since 2001. At the time of the trial, she
was a Detective Sergeant for the Newark Police Department. During the
marriage, plaintiff was the primary wage earner. Her form 1040 wages for the
years 2016 through 2018 were: $130,163 in 2016; $123,906 in 2017; and
$120,260 in 2018. For the purposes of alimony, the judge found plaintiff's
annual income was $120,000.
Defendant earned substantially less during the marriage and has a sporadic
employment history. In 2006, she was diagnosed with a cardiac condition which
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impedes the electoral impulses on the left side of her heart. Before suffering
from a sudden cardiac arrest in November 2016, defendant purchased items at
auctions to refurbish and sell on eBay for income. Since the cardiac arrest,
defendant has been able to engage only in sedentary work. She also manages
and collects rental income from a building she co-owns with her sister and sister-
in-law in Hoboken. For the purposes of alimony, the parties stipulated that
defendant's annual income is $33,000.
Before meeting plaintiff, defendant co-owned a home in Brick, New
Jersey, with her friend, Cynthia. In 2003, Cynthia moved to Florida and sold
her interest in the home to plaintiff. Plaintiff assumed and refinanced the
mortgage, using the proceeds to purchase Cynthia's equity. After refinancing,
plaintiff was the only person encumbered by the mortgage.
Plaintiff has paid the mortgage, homeowner's insurance, and property
taxes from the time she moved into the home in 2003. All other household
expenses were split evenly before and during the marriage. The only financial
aspect of the relationship that changed between the parties after they were
married was that defendant received health insurance benefits as plaintiff's
spouse, and would reimburse plaintiff for the costs. Each party maintained
separate bank accounts and lines of credit; there was no comingling of marital
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funds. The electricity, natural gas, cable, and internet were placed in plaintiff's
name and funds were withdrawn directly from her account each month to pay
for the utilities. Defendant then reimbursed plaintiff for her half of the bills in
cash. All other expenses, including but not limited to food, entertainment,
landscaping, and pool maintenance were also equally divided, with one party
reimbursing the other, in cash, for the expenses paid on their behalf. Defendant
paid plaintiff for the cost of her health insurance benefits in advance each month.
Since the parties separated, plaintiff's monthly expenses have decreased.
Her Case Information Sheet (CIS) listed post-marital monthly expenses totaling
more than $8,000. In June 2017, however, plaintiff left the marital home and
moved into her girlfriend's house. Her girlfriend owns the home and does not
require plaintiff to contribute to the mortgage. Instead, she pays approximately
$800 per month for the gas, electricity, cable, and internet. During cross-
examination, plaintiff conceded that the expenses listed in her CIS were inflated
by at least $2,400 per month.
Conversely, defendant has had to rely on savings and support from her
family members to pay her bills since the parties separated. Defendant's CIS
lists $2,959 in post-marital monthly expenses, which result in annual costs that
exceed her stipulated income. Compounding the deficit, defendant's CIS did not
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contemplate the additional monthly cost of health insurance after she was
dropped from plaintiff's policy, which was estimated would increase from $364
to at least $1,000.
At trial, disputes arose regarding two alleged debts. The first was related
to plaintiff's acquisition of Cynthia's equity in the house. Plaintiff testified that
defendant owed her $25,000 after she refinanced the mortgage. She planned to
collect the funds when the parties sold the home and retired to Florida.
Defendant conceded that she incurred a debt associated with plaintiff's purchase
of the home, but testified she owed only $13,000. She alleged that she repaid
the debt over six years by making monthly payments of $200, as the parties had
previously agreed. Neither party provided a copy of the original mortgage or
the refinancing agreement. Consequently, the record is unclear as to exactly
what debts existed before or after Cynthia's departure.
To support her claim, plaintiff produced a document which she argued
memorialized defendant's agreement to repay the $25,000. She testified that at
some point in 2002 or 2003, the parties drafted the agreement in their living
room. The document is a poor-quality photocopy of the back of a notepad.
Some handwritten markings appear on the top of the page, but only "$25,000"
and "balance" can be made out. Because the document was not the original
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agreement, the judge did not allow it to be placed into evidence. See N.J.R.E.
1002.
The parties also disputed an insurance reimbursement that defendant
received. Prior to the marriage, the parties took out four mortgage life insurance
policies; two in each party's name. Two of the policies included terms that
provided reimbursement of the premiums after ten years of payments without a
claim. The monthly premiums for all of the policies were deducted from
plaintiff's checking account from the time they were initially obtained until June
2017. Because defendant smoked, the premiums due on her policy were higher.
Plaintiff testified that the parties orally agreed that she would collect the
reimbursements on both policies when they became available, since she had paid
the premiums. Before she was able to collect, however, the parties separated.
Defendant, on the other hand, testified that the insurance policies were no
different from any other household expense. Each month defendant repaid
plaintiff in cash for the amount due on her behalf. When the policies expired,
the insurer sent each party a check. Defendant's reimbursement was more than
$15,000. In support of her claim to the reimbursement, plaintiff produced two
statements from her checking account showing transaction history from
December 10, 2014, through January 8, 2015, and May 10, 2017, through June
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9, 2017. The statements show payments in the amount of $99.64 and $33.51
were made to the insurer on December 22, 2014, and May 22, 2017. She also
provided letters she exchanged with the insurers discussing cancellation of the
policies.
On January 7, 2020, the judge entered a Dual Final Judgment of Divorce
accompanied by a twenty-six-page written decision. After comprehensively
analyzing each of the fourteen alimony factors, pursuant to N.J.S.A. 2A:34 -
23(b), the judge awarded defendant limited duration alimony in the amount of
$400 per week for forty-two months, secured by a $70,000 life insurance policy.
In a similar fashion, the judge addressed the equitable distribution of the
alleged debts, incorporating each factor under N.J.S.A. 2A:34-23.1 into her
analysis, and concluded that plaintiff had failed to establish either of the alleged
debts. With regard to the mortgage-related debt, the judge found that "[p]laintiff
failed to provide a scintilla of evidence that this mortgage existed, let alone any
agreement. The [c]ourt was not provided with a single financial document
pertaining to this alleged transaction."
In addressing the insurance reimbursement, the judge noted that both
parties testified extensively that expenses were shared equally throughout the
marriage, and that the parties repaid each other almost exclusively in cash. The
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judge found that plaintiff had successfully established that the policies existed
and that premiums were withdrawn from her account, but failed to demonstrate
that she was not reimbursed by defendant in the same manner as every other
martial expense. Consequently, defendant was not ordered to repay either of the
alleged debts.1
On appeal, plaintiff raises the following issues for our consideration:
POINT I
THIS HONORABLE COURT SHOULD REVERSE
THE [TRIAL JUDGE'S] DECISION, IN WHICH SHE
ORDERED THAT ALIMONY WAS TO BE PAID
FROM [PLAINTIFF] TO [DEFENDANT] IN THE
AMOUNT OF [$400] PER WEEK FOR FORTY-TWO
MONTHS, AS THIS DECISION WAS NOT
SUPPORTED BY ADEQUATE, SUBSTANTIAL,
CREDIBLE EVIDENCE.
POINT II
THIS HONORABLE COURT SHOULD REVERSE
THE [TRIAL JUDGE'S] DECISION, IN WHICH SHE
ORDERED THAT [PLAINTIFF] HAD FAILED TO
MEET HER BURDEN OF PROOF WITH REGARD
TO THE EQUITABLE DISTRIBUTION OF THE
[$25,000] MORTGAGE AMOUNT SHE ASSUMED
AND THE MORTGAGE INSURANCE PREMIUMS,
AS THIS DECISION WAS NOT SUPPORTED BY
ADEQUATE, SUBSTANTIAL, CREDIBLE
EVIDENCE.
1
The parties were ordered to pay their own attorneys' fees.
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In our review, we defer to a trial court's factual findings, which "are
binding on appeal when supported by adequate, substantial, credible evidence."
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc.
v. Invs. Ins. Co., 65 N.J. 474, 484 (1974)). We "do not weigh the evidence,
assess the credibility of witnesses, or make conclusions about the evidence."
Slutsky v. Slutsky, 451 N.J. Super. 332, 344 (App. Div. 2017) (quoting
Mountain Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App.
Div. 2008)). This is particularly so in divorce proceedings, because they
"involve[] the Family Part's 'special jurisdiction and expertise in family matters,'
which often requires the exercise of reasoned discretion." Ibid. (quoting Cesare,
154 N.J. at 413).
"[O]ur '[d]eference is especially appropriate'" where, as here, "the
evidence is largely testimonial and involves questions of credibility." Ibid.(second alteration in original) (quoting Cesare, 154 N.J. at 412). "Because a
trial court '"hears the case, sees and observes the witnesses, [and] hears them
testify," it has a better perspective than a reviewing court in evaluating the
veracity of witnesses.'" Cesare, 154 N.J. at 412 (alteration in original) (quoting
Pascale v. Pascale, 113 N.J. 20, 33 (1988)). Thus, we will not disturb a trial
court's factual findings unless we are "convinced that they are so manifestly
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unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice." Ibid. (quoting Rova
Farms, 65 N.J. at 484).
Plaintiff argues the trial judge's decision to award defendant limited
durational alimony was not supported by evidence demonstrating her inability
to maintain the parties' martial lifestyle. She reminds us that the parties kept
separate financial accounts and split household expenses equally, both before
and during the marriage, and therefore contends that alimony is unnecessary to
enable defendant to maintain the lifestyle she was able to independently provide
for herself. Plaintiff argues that because defendant did not depend on her
financial support during the marriage, she should not have to provide financial
support following the divorce.
A Family Part judge has broad discretion in setting an alimony award.
Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004) (citing
N.J.S.A. 2A:34-23(b)). However, "the exercise of this discretion is not
limitless" and is "frame[d]" by the statutory factors set forth in N.J.S.A. 2A:34-
23(b). Ibid. We will not disturb an alimony award if the trial judge's conclusions
are consistent with the law and not "manifestly unreasonable, arbitrary, or
clearly contrary to reason or to other evidence, or the result of whim or caprice."
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Foust v. Glaser, 340 N.J. Super. 312, 316 (App. Div. 2001) (quoting Raynor v.
Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999)). The purpose of alimony
is "to assist the supported spouse in achieving a lifestyle that is reasonably
comparable to the one enjoyed while living with the supporting spouse during
the marriage." Crews v. Crews, 164 N.J. 11, 16 (2000).
In this case, the trial judge's decision to award defendant limited
durational alimony was supported by substantial, adequate, credible evidence.
The judge considered the financial needs and circumstances of both parties, their
testimony regarding the marital lifestyle and financial matters, the duration of
the marriage, and all of the documentary evidence when she carefully and
systematically analyzed each of the alimony factors. That analysis led her to
conclude that limited durational alimony, in the amount of $400 per week for a
period of forty-two months, was necessary in order for defendant to maintain
the marital lifestyle. We discern no abuse of discretion in either the amount or
duration of alimony ordered.
With regard to equitable distribution of the alleged debts, plaintiff argues
the trial judge disregarded credible evidence in the record by concluding that
she failed to establish the legitimacy of either the mortgage-related debt or the
parties' agreement regarding defendant's insurance reimbursement. Plaintiff
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contends that her testimony, as well as the documentary evidence she produced,
including the photocopy of the purported agreement, definitively established
defendant's obligation to repay the debts.
The equitable distribution of property aims "to effect a fair and just
division of marital assets." Steneken v. Steneken, 183 N.J. 290, 299 (2005)
(quoting Steneken, 367 N.J. Super. at 434). "It reflects a public policy that is 'at
least in part an acknowledgement "that marriage is a shared enterprise, a joint
undertaking, that in many ways [] is akin to a partnership."'" Thieme v. Aucoin-
Thieme, 227 N.J. 269, 284 (2016) (alteration in original) (quoting Smith v.
Smith, 72 N.J. 350, 361 (1977)). "Applying the equitable distribution statute, a
Family Part judge undertakes a three-step analysis." Ibid. n.4 (citing Rothman
v. Rothman, 65 N.J. 219, 232 (1974)). The judge must first "'decide what
specific property of each spouse is eligible for distribution'; second, [he or she]
'must determine [the property's] value for purposes of such distribution'; and
finally, it 'must decide how such allocation can most equitably be made.'" Ibid.(alteration in original) (quoting Rothman, 65 N.J. at 232). It is the proponent's
"obligation to persuade the court, by a preponderance of the evidence, that the
proposal for equitable distribution is fair and equitable under the specific facts
of the case." Clementi v. Clementi, 434 N.J. Super. 529, 532 (Ch. Div. 2013).
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Initially, we find no error in the judge's decision not to admit the alleged
copy of the parties' agreement regarding the mortgage-related debt. N.J.R.E.
1002, known as the "Best Evidence Rule," requires an original writing to prove
its contents, when the writing's contents are material to the dispute, and
production is not otherwise excused. Moreover, plaintiff was unable to
authenticate the document, recalling only that it was drafted in either 2002 or
2003 in the parties' living room. See N.J.R.E. 901. Accordingly, the judge did
not abuse her discretion in rejecting the exhibit.
Plaintiff similarly failed to offer any evidence tending to show the parties'
alleged agreement that she would receive defendant's insurance reimbursement.
While acknowledging plaintiff's production of her communications with the
insurer as well as her bank statements, she failed to offer any evidence showing
she was entitled to the funds. Defendant testified she repaid plaintiff for the
premiums each month. Conversely, plaintiff testified that she was never repaid.
The trial judge found "the credibility of the parties regarding this specific issue
[was] in equipoise." Without further proof of the parties' agreement, we
conclude the judge's decision not to enforce either of the alleged debts was
supported by substantial, adequate, credible evidence.
Affirmed.
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