Barbara Poulard v. Lucien Poulard, Jr. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2941-21
BARBARA POULARD,
Plaintiff-Respondent,
v.
LUCIEN POULARD, JR.,
Defendant-Appellant.
_______________________
Argued February 13, 2024 – Decided April 8, 2024
Before Judges Whipple, Enright and Paganelli.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic County,
Docket No. FM-01-0800-17.
Kelly T. McGriff argued the cause for appellant (Kelly
McGriff Law, LLC, attorneys; Kelly T. McGriff, of
counsel and on the briefs).
Brian D. Winters argued the cause for respondent
(Keith, Winters, Wenning & Harris, LLC, attorneys;
Brian D. Winters, on the brief).
PER CURIAM
Defendant Lucien Poulard appeals from certain alimony, equitable
distribution, and other provisions of an April 13, 2022 post-judgment
matrimonial order. We vacate paragraph eleven of the April 13 order, which
directed defendant to pay $24,410 to plaintiff Barbara Poulard for his dissipation
of a vehicle acquired during the marriage, and affirm the challenged order in all
other respects, substantially for the reasons set forth in the trial court's
thoughtful eighty-one-page opinion.
I.
Because we write for the parties, and considering the trial court fully
detailed the parties' personal and financial circumstances in its comprehensive
written decision, we only summarize the pertinent facts. The parties were
married on October 2, 1979, and lived together intermittently until they
separated for the last time in 2002. They have two adult children, both of whom
are emancipated.
Plaintiff is sixty-seven years old, and defendant is sixty-six years old.
Plaintiff suffers from post-traumatic stress disorder, major depressive disorder,
generalized anxiety disorder, and dysthymic disorder. She last worked in 1997
and receives Social Security Disability (SSD) benefits totaling $1,381 per
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month. The trial court found she "is not expected to regain employment in the
future."
Defendant was declared disabled by the Social Security Administration in
or around 1987 and receives SSD benefits of approximately $1,515 per month.
The trial court found he also "operates a used car business."
In May 2017, plaintiff filed a pro se complaint for divorce, requesting an
award of alimony, equitable distribution, and reimbursement for the following:
(1) $2,800 in parking tickets incurred by defendant in plaintiff's name,
plus a $100 fee to reinstate her driver's license;
(2) a 2000 XJ8 Jaguar Sedan that defendant allegedly sold for parts and
fraudulently reported stolen to the parties' insurance company;
(3) $17,000 in social security disability payments that plaintiff claimed
defendant stole from her;
(4) half of the value of a $279,000 Merrill Lynch account that defendant
allegedly liquidated after forging plaintiff's signature;
(5) $169,000 for a house in Elizabeth, which the parties sold;
(6) a gold watch, diamond anniversary necklace, and earrings;
(7) funds from a joint account, which included plaintiff's and the children's
disability proceeds; and
(8) $7,000 for a dining room set plaintiff claimed defendant stole.
Additionally, plaintiff asked the trial court to order defendant to satisfy all
mortgages he obtained against any marital real estate to fund his automobile
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business, and that defendant "[c]lear all the [b]ad credit" in her name.
In September 2017, defendant filed a certification, acknowledgment of
service, and answer to the complaint. He also requested dismissal of plaintiff's
complaint, claiming the parties were divorced in 2007 under a decree he
obtained from the Republic of Haiti, and that he remarried twice thereafter.
The judge presiding over the parties' matter denied defendant's request for
dismissal. She found the parties were divorced in Haiti, but the divorce decree
provided the parties with no other relief except permission for plaintiff to resume
her maiden name. Accordingly, in March 2018, the judge entered a case
management order directing the parties to exchange discovery and file current
case information statements (CIS). In July 2018, the judge entered another order
directing the parties to file CISs or risk suppression of their pleadings. Although
plaintiff filed a CIS, defendant never did. Therefore, his answer was stricken
on the first day of trial.
The ten-day trial began in September 2018 and ended in October 2019.
Both parties, as well as their daughter and plaintiff's friend, testified at trial. A
significant portion of plaintiff's testimony focused on her purchase of a 2000
XJ8 Jaguar in April 2000. She stated she was able to buy the car with settlement
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proceeds she received from a lawsuit against her former employer, Avenel,
noting her portion of the net proceeds totaled approximately $57,000.
Plaintiff testified the title to the Jaguar initially was placed in defendant's
name, but he intended to transfer it to her name after completing "all the title
work." Plaintiff stated she could not drive the car at the time, due to her poor
health, but she was its sole owner. She also testified she instructed defendant
not to drive the car because it was hers.
According to plaintiff, when she looked out of her window one morning
in October 2002, she noticed the 2000 XJ8 Jaguar was no longer in her driveway
and had been replaced with another Jaguar. She suspected defendant removed
her car because he did not want her driving it. Later that night, defendant came
home to tell her that her "car got stolen in New York." Thereafter, the New
York Sanitation Department called plaintiff to tell her that because the Jaguar
was stripped and found in a derelict condition, the Sanitation Department took
possession of the damaged vehicle and "crushed it."
Plaintiff testified she thought defendant "took [her] car to New York and
had it stripped." Additionally, she produced a police report from October 19,
2002, showing that on the day her Jaguar disappeared from the driveway,
defendant told the Union City police he drove the vehicle to a local store, parked
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it in the lot, and after shopping for approximately forty-five minutes, he returned
to the lot to find the car gone. At a subsequent hearing, plaintiff also produced
a letter to verify the parties filed an insurance claim for the loss of the Jaguar,
but the carrier denied the claim based on the parties' failure to submit certain
documentation.
When the trial continued in February 2019, the judge entered an order
extending the time for the parties to exchange additional discovery. The judge
also directed plaintiff to provide defendant with a copy of "her current exhibits"
within two weeks. On May 7, 2019, the judge entered another order directing
plaintiff to provide the court and defendant with proof she provided defendant
with certain discovery and ordered defendant to submit a certification a week
later to confirm whether he received plaintiff's discovery.
Three weeks later, the judge conducted a case management conference.
Plaintiff appeared; defendant did not. Accordingly, the judge entered an order
finding defendant's "outstanding discovery issue [wa]s deemed moot" because
he failed to communicate with the court and "provide any indication that
[his] . . . discovery matter [wa]s still at issue[,] . . . per the order of May 7, 2019."
The judge heard an additional five days of testimony before the trial ended on
October 1, 2019.
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On April 13, 2022, the court entered a final order: (1) finding plaintiff's
request for a judgment of divorce was moot, based on the 2007 Haitian divorce
decree; (2) ordering defendant to pay plaintiff open durational alimony of $260
per week, retroactive to the date of plaintiff's complaint, plus $100 per week
toward arrears, based on defendant's ability to earn approximately $32,900 per
year from selling cars; (3) awarding plaintiff $24,410 as reimbursement for the
loss of the 2000 XJ8 Jaguar sedan; and (4) directing defendant to reimburse
plaintiff the sum of $2,097.05 for motor vehicle tickets he incurred in her name.
The judge denied plaintiff's remaining requests for relief as either unsupported
or barred under "the equitable principle of laches."
In finding plaintiff was entitled to an award of $24,410 for the 2000 XJ8
Jaguar, the judge explained:
[d]efendant told Union City police he was driving the
Jaguar on October 19, 2002, [and] it was stolen from a
parking lot in Union . . . when he went into a store for
approximately [forty-five] minutes. The car was
discovered stripped in Queens the same day, removed
by the Sanitation Derelict Vehicle Operations on
October 21, 2022, and crushed or dismantled . . . .
Defendant . . . did not testify about the 2000
[XJ8] Jaguar, provide any evidence of his own [about
it], or refute [p]laintiff's claims concerning her belief
that he "had it stolen." . . . It appears, from the face of
[p]laintiff's evidence, that her Jaguar was reported
stolen by [d]efendant to the police department in Union
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City, New Jersey, at [7:38 p.m.], over [six] hours after
the vehicle was reported as tagged for removal in
Queens, at [1:18 p.m.]. It appears that [d]efendant's
report to police that he had been in a store for about
[forty-five] minutes and came out to find the vehicle
gone was patently false. Plaintiff also offered
uncontroverted testimony that [d]efendant . . . told her
the vehicle was stolen in "New York," when he had
reported it stolen from Union City.
After finding the purchase price of the Jaguar was $24,410, the judge stated:
[t]he court accepts that this [amount] was paid with the
proceeds of [p]laintiff's personal injury lawsuit[,] . . .
which the court deems exempt from equitable
distribution in this matter, notwithstanding the title to
the car at some point [was] in the joint names of the
parties. Defendant shall pay the sum of $24,410 to
[p]laintiff within 180 days.
II.
On appeal, defendant argues the trial court erred by: (1) finding plaintiff's
alimony claim "was not barred by the doctrine of laches"; (2) imputing income
to defendant; and (3) denying his motion to dismiss the complaint after plaintiff
repeatedly "fail[ed] to comply with discovery deadlines." Additionally,
defendant contends for the first time on appeal that the trial court erred in: (1)
concluding plaintiff's alimony claim "was not barred by the doctrine of equitable
estoppel"; (2) "requiring [him] to reimburse plaintiff for the Jaguar" and certain
motor vehicle tickets without the court examining the appropriate equitable
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distribution factors; (3) determining that he dissipated the Jaguar without the
court having applied the factors set forth in Kothari1; and (4) converting
plaintiff's complaint into a Rule 4:50 motion and granting her relief without
compelling plaintiff to satisfy the Rule's requirements.
Other than defendant's contentions about the Jaguar, none of his
arguments have sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). We also need not address the arguments defendant failed to
raise to the trial court because they are not "jurisdictional in nature," nor do they
"substantially implicate public interest." State v. Walker, 385 N.J. Super. 388,
1
Kothari v. Kothari, 255 N.J. Super. 500, 507 (App. Div. 1992). In Kothari,
the court held that "[w]here property has been dissipated during the marriage[,]
the asset subject to distribution may take the form of a cash indebtedness to be
imposed by the court upon one spouse in favor of the other." Id. at 510. The
court also identified the following "most commonly" applied factors in
determining whether one spouse dissipated a marital asset at the expense of the
other spouse:
(1) the proximity of the expenditure to the parties'
separation, (2) whether the expenditure was typical of
expenditures made by the parties prior to the
breakdown of the marriage, (3) whether the expenditure
benefitted the "joint" marital enterprise or was for the
benefit of one spouse to the exclusion of the other, and
(4) the need for, and amount of, the expenditure.
[Id. at 507.]
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410 (App. Div. 2006) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973)). Thus, we limit our discussion to whether the judge mistakenly awarded
plaintiff $24,410 for her claims related to the Jaguar.
We begin with the standards that govern our analysis. Our scope of review
of Family Part orders is limited. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
We owe substantial deference to the Family Part's findings of fact because of its
special expertise in family matters. Id. at 413. Deference is especially
appropriate in bench trials when the evidence is "largely testimonial and
involves questions of credibility." Id. at 412 (quoting In re Return of Weapons
to J.W.D., 149 N.J. 108, 117 (1997)). A trial judge who observes witnesses and
listens to their testimony is in the best position "to make first -hand credibility
judgments about the witnesses who appear on the stand." N.J. Div. of Youth &
Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008).
Therefore, we will not disturb a trial court's factual findings unless "they
are so manifestly unsupported by or inconsistent with the competent, relevant[,]
and reasonably credible evidence as to offend the interests of justice." Cesare,
154 N.J. at 412 (quoting Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65
N.J. 474, 484 (1974)). However, we do not accord such deference to legal
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conclusions and review such conclusions de novo. Thieme v. Aucoin-Thieme,
227 N.J. 269, 283 (2016).
"Accurate, complete and current information is essential at every stage of
a litigated matrimonial matter," and "[t]he quality of every judicial decision
depends heavily on the information presented to the court." Pressler & Verniero,
Current N.J. Court Rules, cmt. 1 on R. 5:5-2 (2024). Therefore, pursuant to Rule
5:5-2(a), a CIS "shall be filed and served in all contested family actions . . . in
which there is any issue as to . . . support, alimony[,] or equitable distribution."
A reviewing court will not disturb a trial court's decision on distribution
of property "as long as the trial court could reasonably have reached its result
from the evidence presented, and the award is not distorted by legal or factual
mistake." La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000).
Pursuant to N.J.S.A. 2A:34-23.1:
In making an equitable distribution of property, the
court shall consider, but not be limited to, the following
factors:
a. The duration of the marriage or civil
union;
b. The age and physical and emotional
health of the parties;
c. The income or property brought to the
marriage or civil union by each party;
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d. The standard of living established
during the marriage or civil union;
e. Any written agreement made by the
parties before or during the marriage or
civil union concerning an arrangement of
property distribution;
f. The economic circumstances of each
party at the time the division of property
becomes effective;
g. The income and earning capacity of
each party, including educational
background, training, employment skills,
work experience, length of absence from
the job market, custodial responsibilities
for children, and the time and expense
necessary to acquire sufficient education or
training to enable the party to become self-
supporting at a standard of living
reasonably comparable to that enjoyed
during the marriage or civil union;
h. The contribution by each party to the
education, training[,] or earning power of
the other;
i. The contribution of each party to the
acquisition, dissipation, preservation,
depreciation[,] or appreciation in the
amount or value of the marital property, or
the property acquired during the civil union
as well as the contribution of a party as a
homemaker;
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j. The tax consequences of the proposed
distribution to each party;
k. The present value of the property;
l. The need of a parent who has physical
custody of a child to own or occupy the
marital residence or residence shared by
the partners in a civil union couple and to
use or own the household effects;
m. The debts and liabilities of the parties;
n. The need for creation, now or in the
future, of a trust fund to secure reasonably
foreseeable medical or educational costs
for a spouse, partner in a civil union
couple[,] or children;
o. The extent to which a party deferred
achieving their career goals; and
p. Any other factors which the court may
deem relevant.
[N.J.S.A. 2A:34-23.1.]
Before fixing an equitable distribution award, the trial court must first
decide which property qualifies as marital property and which property, if any,
belongs separately to either spouse. N.J.S.A. 2A:34-23.1 ("[T]he court shall
make specific findings of fact on the evidence relevant to all issues pertaining
to asset eligibility or ineligibility, asset valuation, and equitable distribution,
including specifically, but not limited to, the factors set forth in this se ction.").
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As the Court in Rothman v. Rothman, 65 N.J. 219, 232 (1974) explained, when
fixing an equitable distribution award,
a trial judge enters upon a three-step proceeding.
Assuming that some allocation is to be made, [the
judge] must first decide what specific property of each
spouse is eligible for distribution. Secondly, [the
judge] must determine its value for purposes of such
distribution. Thirdly, [the judge] must decide how such
allocation can most equitably be made.
A Family Part judge will presume that property acquired during the
marriage is marital property subject to equitable distribution. N.J.S.A. 2A:34-
23.1 ("It shall be a rebuttable presumption that each party made a substantial
financial or nonfinancial contribution to the acquisition of income and property
while the party was married."). Importantly, however, when a court determines
how to divide marital assets, there is no presumption the assets should be
distributed equally. Rothman, 65 N.J. at 232 n.6; see also Wadlow v. Wadlow,
200 N.J. Super. 372, 377 (App. Div. 1985).
"[T]he burden of proof to establish the immunity of an asset from
[equitable] distribution rests upon the spouse asserting the immunity." Dotsko
v. Dotsko, 244 N.J. Super. 668, 676 (App. Div. 1990) (citing Painter v. Painter,
65 N.J. 196, 214 (1974)). Nonetheless, the Court has made clear that a party's
personal injury recovery for pain and suffering is not equitably distributable .
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Landwehr v. Landwehr, 111 N.J. 491, 501 (1988). Instead, only that portion of
a personal injury settlement attributable to lost wages and "assets . . . expended
for medical expenses" is subject to equitable distribution. Id. at 502.
Finally, it is axiomatic "that a party 'in equity must come into court with
clean hands and . . . must keep them clean . . . throughout the proceedings.'"
Clark v. Clark, 429 N.J. Super. 61, 77 (App. Div. 2012) (omissions in original)
(quoting Chrisomalis v. Chrisomalis, 260 N.J. Super. 50, 53-54 (App. Div.
1992)).
Governed by these principles, we affirm all but paragraph eleven of the
April 13, 2022 order, granting plaintiff a $24,410 award for the Jaguar. We are
constrained to vacate this award and remand for further proceedings to allow the
trial court to reconsider this distribution as it relates to the statutory factors under
N.J.S.A. 2A:34-23.1.
In reaching this conclusion, we discern no reason to disturb the judge's
finding that plaintiff credibly testified she bought the Jaguar using settlement
funds she received from a personal injury suit. But the basis for the judge
finding the settlement funds were "exempt from equitable distribution" is
unclear. Moreover, the parties' testimony sheds little light on this issue.
Similarly, it is not clear from the record why the judge found defendant
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"dissipated" the Jaguar, as her opinion does not explicitly state defendant was
responsible for the Jaguar's destruction.
Therefore, on remand, we direct the judge to reconsider the nature of
plaintiff's settlement funds and more fully address the statutory factors set forth
under N.J.S.A. 2A:34-23.1—including the dissipation factor set forth under
N.J.S.A. 2A:34-23.1(i)—to determine whether plaintiff is entitled to
reimbursement for the full purchase price of the Jaguar. We understand the
judge's analysis of the statutory factors may be hampered due to the parties'
limited testimony and proofs regarding the Jaguar, not to mention defendant's
blatant violation of the judge's orders and Rule 5:5-2, compelling him to file a
current CIS. Thus, although we do not direct the judge to elicit further testimony
from the parties on the remaining issues, she may do so if she feels it is
appropriate.
Affirmed in part and vacated and remanded in part. We do not retain
jurisdiction.
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