VALERIE GIARUSSO VS. WILLIAM G. GIARUSSO, SR. (FM-02-1561-08, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0746-13T4
VALERIE GIARUSSO,
Plaintiff-Appellant,
v.
WILLIAM G. GIARUSSO, SR.,
Defendant-Respondent.
_________________________________
Submitted May 2, 2018 – Decided July 13, 2018
Before Judges Alvarez, Currier, and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1561-08.
Snyder & Sarno, LLC, attorneys for appellant
(Joseph V. Maceri and Ruth Kim, of counsel and
on the brief).
William G. Giarusso, Sr., respondent pro se.
PER CURIAM
Plaintiff Valerie Giarusso appeals from three post-judgment
orders: (1) a June 27, 2013 order; (2) a September 16, 2013 order
amending the June 27, 2013 order; and (3) a September 18, 2013
order denying reconsideration of the June 27, 2013 order. We
affirm in part and vacate and remand in part.
I.
We glean the following facts from the record. Plaintiff and
defendant William G. Giarusso, Sr., were married on October 30,
1993, and have two children, born in 1996 and 1999. During the
marriage, defendant was the sole wage earner and plaintiff was a
homemaker. Plaintiff filed for divorce in February 2007, later
withdrew her complaint, and subsequently filed a second divorce
action on January 15, 2008. Defendant filed an answer and
counterclaim on March 19, 2008. A contentious divorce proceeding
ensued with a judgment of divorce being entered on June 24, 2010,
after a twenty-seven-day trial.
The parties possessed joint marital property, including
substantial investments; life insurance; their former marital
residence (FMR) in Upper Saddle River, New Jersey; a vacant parcel
in Margaretville, New York; and seven properties in Florida (the
Florida properties). Homes were under construction on five of the
Florida properties. Defendant completed three one-family homes
in 2011, spending $153,720.52 in 2010 and $480,257.76 in 2011 to
complete the construction. Defendant maintains plaintiff was
aware of the expenditures, and he made the capital improvements
with plaintiff’s knowledge and tacit approval.
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On June 24, 2010, the trial court issued a lengthy opinion
and Final Judgment of Divorce (FJOD). The opinion and FJOD
provide, in relevant part: (1) the FMR and the Margaretville
property shall be sold within sixty days unless the parties
mutually agreed otherwise; (2) the Florida properties shall be
listed for sale unless the parties agreed to first complete
construction or secure all necessary approvals and then list them
for sale; (3) the Northwestern Mutual Life Insurance Policy
(Northwestern Policy) shall be surrendered and the proceeds used
to pay marital debt with any excess to be equally divided; (4) the
parties shall equally share the costs to maintain the mortgages
and property taxes on the FMR, the Margaretville property, and
Florida properties; (5) defendant shall advance the mortgages and
real estate taxes for these properties and then deduct these costs
from the supplemental alimony paid to plaintiff; (6) defendant
shall pay alimony in the amount of thirty percent of defendant's
base salary of $500,000 or $150,000 annually and twenty percent
of his commission checks, yielding a total alimony obligation of
$547,500 per year; (7) defendant shall pay child support in the
amount of $75,000 per year per child plus ten percent of
defendant's commission checks until he paid a total of $150,000;
(8) each party shall be responsible for their own car payments;
(9) the personal property shall be distributed in accordance with
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the agreement reached by the parties; (10) each party shall be
responsible for their own attorney's fees; and (11) plaintiff
shall be responsible for forty percent of the $21,909.54 owed to
Leslie Solomon, CPA, and $82,146.80 owed to Barry Kaufman, Esq.,
the court-appointed discovery master. The parties did not appeal
the FJOD.
Thereafter, the parties engaged in several rounds of post-
judgment motion practice. In November 2011, plaintiff moved to
enforce litigant's rights, seeking fourteen forms of relief.
Defendant cross-moved to compel plaintiff to reimburse him for
certain costs and other relief. On February 14, 2012, the trial
court issued two orders and a written decision, which provided,
in pertinent part: (1) defendant was permitted to take certain
credits for the properties; (2) the Florida properties were to be
sold within sixty days after June 24, 2012, unless the parties
agreed otherwise; (3) plaintiff’s share of maintenance of the
properties was limited to a maximum of $137,500, with any excess
amount carried forward; (4) defendant shall continue to be
responsible for the lease payments on plaintiff's vehicle; and (5)
the Northwestern Policy was to be surrendered, with the parties
sharing the cash surrender value consistent with the FJOD.
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Contrary to the court's ruling, the Florida properties were
not sold. Neither party provided the trial court with the terms
of any agreement reached regarding those properties.
Plaintiff filed a second motion to enforce litigant's rights
in March 2012. Defendant filed a cross-motion for reconsideration
of the February 14, 2012 order. Following oral argument, the
trial court entered two May 25, 2012 orders, which denied certain
relief and set the matter for a plenary hearing to determine
whether expenditures and capital improvements were completed on
the Florida properties with plaintiff’s knowledge and approval.
The court also ruled: (1) defendant shall receive a credit
of $35,000 of the $70,000 he advanced for plaintiff's legal fees,
since the monies advanced were derived from joint marital assets;
(2) defendant shall receive a credit for all car lease payments
from the inception of the lease to its termination date; and (3)
plaintiff shall provide defendant with reasonable proof as to
monies received from the surrender of the Northwestern Policy.
The trial judge noted the properties in Florida were under
construction and, as a result, the judge suggested it may be
prudent for the parties to consider investing in completing the
homes under construction prior to listing for any sale. The court
also stated the parties would share equally in any gains or losses
in the event of a sale of the Florida properties.
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The parties entered into an August 17, 2012 consent order
before the plenary hearing commenced. The consent order provided
for, in relevant part: the parties sharing joint legal custody
with defendant designated as parent of primary residence (PPR);
permitting plaintiff to apply to revise the parenting schedule and
to be designated PPR if she returns to New Jersey after relocating
to California; a reduction in child support; restraining plaintiff
from entering or being on the premises of the FMR after she
relocates to California; allowing plaintiff to remove specified
items from the FMR; and the release of specified funds to each
party.
The consent order also listed the issues to be decided in the
plenary hearing: (1) whether defendant is entitled to a reduction
in alimony and the amount of defendant's alimony arrears; (2) the
amount of defendant's child support arrears through the date of
the plenary hearing; (3) the amount of the credits to defendant
for payments made on the FMR, the Florida properties, the
Margaretville property, plaintiff's leased Land Rover and
automobile insurance, the surrender value of the Northwestern
Policy, reimbursement for the children's custodial accounts, the
amount of the credit for counsel fees previously paid on behalf
of the plaintiff for which defendant is not responsible, and the
manner in which each party is to be paid; (4) all issues relating
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to the jewelry; (5) whether the parties agreed to invest in the
Florida property after the FJOD was entered; (6) the amount of
child support owed by either party as of August 15, 2012; and (8)
counsel fees.
The nine-day plenary hearing took place over a nine-month
period. Following written submissions and oral argument, the
court issued a sixteen-page written decision and several orders
on June 27, 2013. In a subsequent September 16, 2013 order, the
court amended the June 27, 2013 orders and clarified its earlier
decision.
In his analysis of the issues regarding the real estate, the
judge emphasized plaintiff introduced no testimony with respect
to the fair market value of the Florida properties. The trial
judge noted "[d]efendant testified . . . that the three residences
in Florida could not be sold without a certificate of occupancy
('C/O')." This testimony was uncontroverted by plaintiff. The
judge found "[d]efendant decided to complete the construction of
the homes in order to secure a C/O so that the homes could be
listed for sale or rented."
With respect to the possible sale of the real estate, the
court stated:
The [p]laintiff never filed a motion to
compel the sale of the FMR, Margaretville or
the Florida [P]roperty. The parties entered
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into a [c]onsent [o]rder dated August 17,
2012, in which the [p]laintiff did not seek
the sale of any of the properties.
The [c]ourt notes that it is
uncontroverted that the sale of any of the
properties at the present time is likely to
be a "short-sale." Neither party has the
financial ability to deal with the tax
consequences of a short sale.
Even if there was not an agreement not
to list the properties for sale, [p]laintiff
has failed to introduce any evidence that they
could have been sold, with or without a C/O.
The [p]laintiff could have contacted
[r]ealtors in Florida to produce evidence
contrary to the [d]efendant's testimony. The
[p]laintiff did not. Likewise, the [p]laintiff
has failed to produce any appraisals that
would establish either the FMR or
Margaretville could be sold without a
shortfall. The [p]laintiff has failed to
produce any plan as to how her share of any
shortfall would be paid.
Relevant to this appeal, the amended order stated:
1. The provision of the Final Dual
Judgment of Divorce limiting the defendant's
right to collect any monies due him from the
plaintiff from the supplemental alimony
awarded to the plaintiff as defined in the
[c]ourt's decision dated the same date, is
vacated.
2. The [c]ourt finds that the plaintiff
entered into the agreement with the defendant
to maintain all of the real properties
including their home in Upper Saddle River,
Margaretville and Florida and to share in all
the profits and losses equally; and that the
plaintiff agreed to be responsible for one-
half of the capital improvements to the
Florida property.
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. . . .
6. The defendant shall remain in the
[FMR] with the children, as the parties agreed
that the [FMR] will not be listed for sale at
the present time, as any such sale is likely
to result in a "short sale."
7. The defendant shall pay utilities,
lawn care, snow removal and the first $500 of
any noncapital repairs on the [FMR].
8. All other costs with respect to the
[FMR], including but not limited to the first
mortgage, [home equity line of credit
account], real estate taxes, capital repairs,
and noncapital repairs, in excess of $500
shall be paid equally by the plaintiff and
defendant.
9. Since the parties agree, the
Margaretville vacant land shall remain listed
for sale.
10. The parties shall equally be
responsible for all costs with respect to the
Margaretville vacant land until it is sold.
11. When the Margaretville vacant land
is sold, the entire net proceeds shall be paid
to the defendant, provided that the plaintiff
credited one half of the net proceeds as
against the monies owed to the defendant as
set forth in this order and the [FJOD].
12. Since the plaintiff and defendant
agreed not to sell the Florida property but
rather invest in completing the homes under
construction after the [divorce] decision was
entered and also agreed to secure the
subdivision approvals, the defendant shall
continue to manage the Florida property,
provided that the defendant shall however
consult with the plaintiff and advise her as
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to any further capital improvements he may
seek to undertake.
13. No further capital improvements
shall be undertaken on the Florida properties
without the consent of the plaintiff, which
consent shall not be unreasonably withheld,
unless the defendant is prepared to advance
all monies required, then no such consent
shall be required.
. . . .
17. The plaintiff is directed to pay the
defendant $621,284.70, without considering
the payments that the defendant made for the
plaintiff and children for which he is
entitled to additional reimbursement . . . .
18. The plaintiff shall pay defendant
for the plaintiff's children's expenses
advanced by the defendant as set forth on
schedule L except for those items which the
[c]ourt has crossed out which amount owed to
the defendant totals $124,425.19.
19. The total which the plaintiff owes
to the defendant, pursuant to paragraphs 17
and 18 of this Order, is $745,709.89
($621,284.70 plus $124,425.19).
20. $250,000 shall be deducted from the
plaintiff's one-half share of the defendant's
401(k) plan that is subject to equitable
distribution, provided that the plaintiff
shall receive credit of $200,000 from the
$745,709.89 owed to the defendant, reducing
the amount owed by the plaintiff to the
defendant to $545,709.89.
21. Defendant shall continue to pay the
plaintiff 30% of his current base income of
$500,000 or $150,000 per year of $6,250 semi-
monthly as alimony.
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. . . .
26. Should the former marital residence,
the Margaretville residence or vacant land,
or any of the Florida properties be sold in
the future, the plaintiff's share of the
proceeds shall be paid to the defendant until
she has paid in full the $545,709.89 as set
forth in paragraph 20 above, reimbursement of
the children's custodial accounts as set forth
in paragraph 16 above, any child support
arrearages owed from July 1, 2013, or her
share of the expenses for the former marital
residence, Margaretville residence or vacant
land, Florida properties, or life insurance
premiums from July 1, 2013.
27. Any alimony due to plaintiff from
her 20% share of the defendant's commissions
shall not be paid to her, but credited against
her obligations to the defendant until all of
her obligations, as set forth herein and the
Final Dual Judgment of Divorce, are paid in
full.
. . . .
30. The parties are to negotiate with
or take action against the merchant with
respect to the propriety sale of jewelry by
the plaintiff. Any recovery shall be divided
equally by the parties after first paying the
defendant the $10,000 that the plaintiff
received.
The trial court also awarded defendant the following credits:
(1) $70,000 for counsel fees paid on plaintiff's behalf in the
divorce and domestic violence actions from defendant's earnings
after the divorce complaint was filed; (2) $44,813.25 for the
surrender of the Northwestern Policy; and (3) $42,422.54
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representing plaintiff's forty percent share of Kaufman's and
Solomon's fees.
Plaintiff sought reconsideration, which was denied on
September 18, 2013. In its written decision, the trial court
stated:
The [p]laintiff does not specifically set
forth where the [c]ourt erred. The
Plaintiff's brief is directed at only the
issue as to whether the [p]laintiff agreed
with the [d]efendant to complete construction
of the Florida Properties and to withhold the
decision to sell the [FMR] and the
[Margaretville property]. The [c]ourt
decision as to all other issues is not raised
in the [p]laintiff's motion for
reconsideration.
As set forth in the [d]ecision, the
amount of the capital improvements to complete
construction of the Florida Properties is
$359,035.08.
The [p]laintiff argues that she never
agreed to complete construction of the Florida
Properties. The [p]laintiff never explained
why she did not, therefore, request the sale
of the Florida properties in her motions filed
December 16, 2011 and March 30, 2012. The
[p]laintiff did not address any issue as to
the sale or completion of the Florida
Properties in the [c]onsent [o]rder dated
August 17, 2012.
The [p]laintiff testified that she never
read the Judgment of Divorce and accompanying
decision which provided for the FMR and
Margaretville to be sold by a date certain
unless the parties agreed otherwise. The
parties were aware that it appeared that both
the FMR and Margaretville were encumbered by
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liens which exceeded their apparent fair
market value ("FMV"). Whether the
construction of the Florida Properties was to
be completed was raised by the [c]ourt to the
[p]laintiff.
The [p]laintiff testified that she wanted
to sell the FMR. The [p]laintiff secured a
listing agreement for the FMR. The
[p]laintiff secured a listing for vacant land
associated with Margaretville but not for the
residence. The [p]laintiff made no effort to
secure a listing for the Florida Properties.
The [p]laintiff concedes in their post
hearing brief that the liens filed as against
the Florida Properties exceed their FMV.
The [p]laintiff never moved to enforce a
sale of any of the properties pursuant to the
JOD.
The [d]efendant completed construction
of the Florida Properties in order to secure
certificates of occupancy so that if the
general market improved the homes could be
sold. The real estate market continued in a
depressed state. As a result, the completed
homes were leased in order to limit the cost
of supporting the continuing mortgage costs
and real estate taxes.
The [c]ourt does not find the argument
that it is not equitable for the [p]laintiff
to be responsible for 50% of the capital costs
and maintenance given the disparity in their
income to be persuasive.
The [p]laintiff seeks to retain 50% of
any profit generated by the sale of the
various properties. The [d]efendant offered
to assume responsibility to the various
properties subject to a diminished interest
on the part of the [p]laintiff. The
[p]laintiff declined [d]efendant's offer.
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On appeal, plaintiff argues:
I. THE RECORD BELOW DOES NOT SUPPORT THE TRIAL
COURT'S FINDINGS THAT THERE WAS A MUTUAL
AGREEMENT THAT THE FLORIDA PROPERTIES WERE TO
BE RETAINED BY THE PARTIES AND THAT
CONSTRUCTION BE COMPLETED SOLELY BY DEFENDANT
AS A JOINT ENDEAVOR.
A. The Trial Court Erred in Finding
That There Was An Agreement Between
the Parties As to the Florida
Properties.
B. Alternatively, If There Was an
Agreement Between the Parties to
Retain the Florida Properties and
For Defendant to be Solely
Responsible for the Management and
Maintenance Thereof and For
Plaintiff to Share the Expenses
Equally, The Agreement Should be Set
Aside.
II. THE TRIAL COURT FAILED TO CONSIDER THE
VOLUNTARY NATURE OF THE PAYMENTS MADE BY
DEFENDANT ON BEHALF OF THE PLAINTIFF AND
CHILDREN AND THEREFORE, DEFENDANT SHOULD NOT
BE ENTITLED TO VARIOUS CREDITS.
III. THE DEFENDANT WAS AWARDED VARIOUS CREDITS
TO WHICH HE WAS NOT ENTITLED PURSUANT TO THE
COURT ORDERS.
IV. THE TRIAL COURT FAILED TO PROPERLY ADDRESS
THE ISSUE OF THE DISPOSITION OF JEWELRY AND
INACCURATELY PROVIDED DEFENDANT WITH FULL
CREDIT FOR MONIES PREVIOUSLY RECEIVED BY
PLAINTIFF AFTER THE SALE OF JEWELRY.
II.
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Generally, "findings by the trial court 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. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
"Therefore, an appellate court should not disturb the 'factual
findings and legal conclusions of the trial judge unless [it is]
convinced that they are so manifestly unsupported by or
inconsistent with the competent, relevant and reasonably credible
evidence as to offend the interests of justice.'" Id. at 412
(alteration in original) (quoting Rova Farms, 65 N.J. at 484).
"The findings of the Family Part are entitled to particular
deference in view of its 'special expertise in the field of
domestic relations.'" Pressler & Verniero, Current N.J. Court
Rules, cmt. 6.2 on R. 2:10-2 (2018) (quoting Cesare, 154 N.J. at
412-13). "Deference is especially appropriate 'when the evidence
is largely testimonial and involves questions of credibility.'"
Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D.,
149 N.J. 108, 117 (1997)). However, "[a] trial court's
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995) (citations omitted).
15 A-0746-13T4
III.
In Point I, plaintiff contends the record does not support
the trial court's findings that the parties reached a mutual
agreement to retain the Florida properties and for defendant to
construct the residential units as a joint endeavor. Primarily,
plaintiff asserts the purported agreement lacks a meeting of the
minds and is not supported by valid consideration. Alternatively,
plaintiff suggests, if there was an agreement, it should be set
aside as the product of overreaching by defendant who took
advantage of his then confidential relationship with plaintiff.
Additionally, plaintiff argues the agreement must be set aside
because the terms of the agreement were manifestly unfair or
oppressive and dictated by defendant, the dominant party.
We are unpersuaded by these arguments and affirm the trial
court's ruling on the issues pertaining to the Florida properties
substantially for the reasons expressed by the trial judge in his
written opinion and September 16, 2013 order. We add the following
comments.
As to credibility, the judge stated he had "the opportunity
to access the credibility of the parties, who both testified."
Based on his findings, we surmise the judge tacitly found
defendant's testimony to be more credible than plaintiff's. While
the judge could have made more explicit credibility findings, the
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court essentially accepted defendant's version. "Thus, by that
finding, the trial court essentially credited [defendant's]
version and not [plaintiff's]." See N.J. Div. of Youth and Family
Servs. v. M.C. III, 201 N.J. 328, 345 (2010). The record also
demonstrates plaintiff's testimony was argumentative, sometimes
evasive, and riddled with internal contradictions and
inconsistencies.
The factual findings rendered by the trial judge regarding
the issues involving the Florida properties are amply supported
by substantial, credible evidence in the record. As indicated by
the judge, much of defendant's testimony was uncontroverted. Many
facts were not disputed by plaintiff. The judge's conclusions
logically flow from those findings. Applying the appropriate
deference, we discern no basis to disturb the trial court's
findings and conclusions as to issues pertaining to the Florida
properties.
IV.
Plaintiff further argues the trial court: (1) failed to
consider the voluntary nature of the payments made by defendant
on behalf of plaintiff and the children (Point II), (2) erred by
awarding defendant various credits to which he was not entitled
(Point III), and (3) failed to properly address the disposition
of the jewelry and erred by awarding defendant full credit for
17 A-0746-13T4
monies previously received by plaintiff after the sale of the
jewelry (Point IV). Plaintiff further contends the trial court
did not provide the requisite findings or analysis leading to its
conclusions.
A trial court must state the reasons for its conclusions.
Ribner v. Ribner, 290 N.J. Super. 66, 76 (App. Div. 1996); R. 1:7-
4). As we explained in Ribner:
The trial court must clearly state its
factual findings and correlate them with
relevant legal conclusions, so that parties
and the appellate courts may be informed of
the rationale underlying the conclusion.
Without the benefit of such findings, it is
impossible for an appellate court to perform
its function of deciding whether the
determination below is supported by
substantial credible proof on the whole
record.
[Id. at 77 (citations omitted).]
Accord Ricci v. Ricci, 448 N.J. Super. 546, 574-75 (App. Div. 2017);
Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997).
Here, the trial court did not make sufficient findings of fact
and conclusions of law in his award to defendant of credits for
expenses he paid, the entire cash surrender value of the Northwestern
life insurance policy, and jewelry sales proceeds. The trial court
did not express its reasoning for allowing credit for some expenses
paid by defendant and not others. As a result, we are unable to
perform our review function as to the credits awarded.
18 A-0746-13T4
Similarly, we are unable to determine the basis for awarding
defendant the entire $44,813.25 cash surrender value of the
Northwestern life insurance policy. The FJOD required the policy
to be surrendered, with the proceeds used to pay marital debts and
any unused excess to be equally divided. A subsequent February
14, 2012 order directed the policy to be surrendered and the
proceeds equally shared. The trial court did not adequately explain
the basis for determining defendant was entitled to the full cash
surrender value.
Finally, the trial court determined defendant was entitled to
a credit for the entire $10,000 proceeds from the sale of the
jewelry, except for any recovery from a separate action against
the merchant jeweler, which would be divided equally. Plaintiff
argues defendant never sought equitable distribution of the
jewelry. Claiming she believed the jewelry was hers, plaintiff
sold the jewelry to a third party for $10,000. The trial court
did not provide a sufficient analysis for its ruling.
We are constrained to vacate and remand the portions of the
orders pertaining to the proper credits to be awarded to defendant
for the expenses he paid, the Northwestern Policy proceeds, and the
19 A-0746-13T4
jewelry sale proceeds.1 The remand court shall reconsider these
issues and make findings of fact and conclusions of law.
Affirmed in part and vacated and remanded in part for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
1
We recognize the judge who presided over the trial, post-
judgment motions, and plenary hearing is now retired.
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