                                NOT FOR PUBLICATION WITHOUT THE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-4437-17T1

ARLENE MCCOY,

          Plaintiff-Respondent,

v.

DANIEL MCCOY,

     Defendant-Appellant.
____________________________

                    Submitted December 18, 2019 – Decided January 17, 2020

                    Before Judges Whipple, Gooden Brown and Mawla.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Family Part, Morris County,
                    Docket No. FM-14-0489-15.

                    Foley & Foley, attorneys for appellant (Sherry L. Foley
                    and Timothy Joseph Foley, of counsel and on the
                    briefs).

                    Lyons & Associates PC, attorneys for respondent
                    (Joanna R. Adu, Chris Ann Wright, and David F.
                    Salvaggio, on the brief).

PER CURIAM
      Following a twenty-five-year marriage, plaintiff Arlene McCoy and

defendant Daniel McCoy participated in a four-day trial to address the following

issues: child support; college contribution; alimony; equitable distribution,

including the value of defendant's paving business, plaintiff's pension, the

marital residence, marital debt; credits for pendente lite payments; and counsel

fees, and litigation expenses. Defendant now appeals from the April 19, 2018

final judgment of divorce, challenging the equitable distribution determination.

We affirm for the reasons expressed in Judge Maritza Berdote Byrne's thorough

and well-written thirty-six-page opinion.

      The underlying facts are set forth in detail in the judge's written decision.

We summarize those related to this appeal. Defendant started a paving business

during the marriage in 1999. He reported a minimal income from the business,

which did not correspond with the parties' marital lifestyle. Plaintiff testified

she believed defendant's income to be much greater than he reported due to

substantial unreported cash income. She testified a "considerable amount" of

defendant's unreported cash income was used to construct an addition to the

marital home; purchase luxury vehicles, jet skis, and dirt bikes; and pay for

apartments in Brooklyn and Manhattan for one of their children.




                                                                           A-4437-17T1
                                        2
         Plaintiff argued defendant was voluntarily underemployed. Defendant

conceded he was underemployed but blamed it on a bad economy.

         The court appointed a forensic accountant to value defendant's business

and earnings. Although the accountant was able to review four years of business

income and expenses, the materials were incomplete.            For example, the

accountant received a customer ledger, which did not include customer names

or invoices, because defendant advised he gave customers verbal estimates. She

requested business tax returns, loan agreements, and loan documents to

complete the valuation, but only received the tax returns.        The accountant

discovered a significant number of cash withdrawals, which contained no

explanation in the accompanying memos. For the business expenses, defendant

failed to provide mileage logs, even though fuel was represented as a large

portion of expenses on the tax returns. He did not provide a complete equipment

list, but instead provided a list containing his personal estimate of the equipment

value.

         The accountant concluded the business was "haphazardly run" and

defendant "relied almost exclusively on [his personal accountant] . . . for

business management decisions."         At trial, defendant agreed with this

assessment. He also confirmed he did not use invoices, and instead relied on


                                                                           A-4437-17T1
                                        3
verbal estimates and agreements. The accountant also concluded defendant used

company funds to pay for personal expenses.

      Notwithstanding the difficulty with timely and complete production of

business records by defendant, the accountant was able to opine regarding

defendant's compensation and the value of the business, which were greater than

defendant initially represented.     Although defendant initially disputed the

business valuation, he later accepted the valuation during his testimony.

      Plaintiff worked for the Borough of Watchung for over seventeen years.

She made mandatory contributions to a pension throughout the course of her

employment, including during the marriage. She also borrowed three times from

her pension. Two loans were taken during the marriage, and a third loan, was

taken after the complaint to pay her attorney's fees related to the divorce.

Plaintiff did not seek to include the third loan as marital debt.

      The parties purchased the marital residence in 1994 for $178,500. They

expanded the residence from two to six-bedrooms.           Although both parties

contributed to the mortgage, defendant's contribution to the expense was

irregular.   Plaintiff testified defendant refused to contribute to the shelter

expenses, forcing her to take a second job, reduce the marital lifestyle, use credit

cards, and borrow money from her pension during the marriage.


                                                                            A-4437-17T1
                                         4
      The marriage broke down in 2012, however plaintiff lacked the funds

necessary to seek a divorce. She eventually moved out of the marital residence

in June 2014, residing and paying rent at her father's summer home. She also

continued to pay her share of the mortgage on the home to avoid foreclosure .

However, defendant cashed two of her checks and kept the money instead of

paying the mortgage. As a result, plaintiff stopped paying her share of the

mortgage, and the home went into foreclosure.       At trial, plaintiff testified

regarding her efforts to prevent the home from foreclosure. Defendant denied

receiving any foreclosure notices until he was formally served.

      Defendant would not sell the residence. In June 2015, the court ordered

him to either obtain the funds to purchase the home or list the home for sale.

The court also ordered the parties to equally contribute to the mortgage, taxes,

and homeowner's insurance until the buyout or sale occurred.        The parties

retained a realtor, however, defendant refused to sign the listing agreement. At

trial, defendant initially testified he had no knowledge of the realtor, denied

receiving a copy of the listing agreement, and did not recall signing any

documentation. However, on cross-examination, he conceded he was aware of

the realtor.




                                                                         A-4437-17T1
                                       5
      The parties hired a second realtor to sell the home.           The realtor

recommended defendant move out of the home to improve the chances of selling

it. Defendant refused to sign the listing agreement.

      Plaintiff filed a motion to enforce litigant's rights and ultimately a third

realtor was retained. Following three months of delays and meetings with

defendant, the home was listed for $620,000 in September 2016. The realtor

was unable to show the home because defendant refused to secure the parties'

dog. The third realtor resigned. In October 2016, plaintiff learned the home

had gone into foreclosure for a second time because defendant failed to pay the

mortgage. Defendant testified he did not pay the mortgage.

      The court appointed a fourth realtor and imposed restraints against the

family from impeding the sale of the home. The realtor listed the residence for

sale in January 2017, for $670,000. The realtor attempted to show the home on

several occasions, but defendant did not make himself available and turned

down opportunities to do so. At trial, defendant conceded he refused to show

the home on at least two occasions.

      The parties eventually found a buyer for the home, who offered $553,000

contingent on the parties closing various open permits. Plaintiff testified she

took time off work to meet with inspectors and provided defendant with a list of


                                                                          A-4437-17T1
                                        6
items to be completed at the home to close the permits. She also purchased fire

alarms and obtained a certificate of occupancy. The residence was finally sold

in September 2017. The net proceeds of the sale were $172,518.

      Plaintiff testified in detail regarding the marital debt and submitted an

explanatory summary into evidence. She also testified she spent "large sums"

of money on the children following pendente lite, for which she was not seeking

credit against marital debt.    Judge Berdote Byrne found plaintiff testified

credibly and in detail about the marital debt.

      During the trial, defendant was afforded multiple opportunities to review

plaintiff's evidence of the marital debt. Initially, he claimed all of plaintiff's

debt was not marital. Then, he disputed debt related to a plane ticket for a trip

to Kansas ordered in his name because he did not recall taking the trip. He also

disputed credit card charges for book purchases, claiming he did not use the

books and that the parties overspent on books during the marriage. The judge

found his testimony "unpersuasive."

      Judge Berdote Byrne found the total marital debt was $60,380, of which

$49,159 was from plaintiff and $11,221 from defendant. She ordered the total

debt divided equally and payment of defendant's half of the marital debt come

from his share of the marital residence proceeds.


                                                                          A-4437-17T1
                                        7
The judge also ordered plaintiff pay $5000 for the forensic accounting fees , and

defendant pay the remainder because he delayed and failed to provide relevant

information to the accountant, hindering the process. The judge held the marital

residence proceeds, defendant's business, and plaintiff's pension were subject to

equitable distribution. She analyzed the N.J.S.A. 2A:34-32.1 statutory factors

governing equitable distribution in detail.

      The judge concluded defendant resided in the marital residence rent-free

from December 2015 to September 2017, and accordingly awarded plaintiff

sixty percent of the equity in the marital home.         The judge determined

defendant's business was worth $73,800. She awarded plaintiff forty percent of

its value because plaintiff contributed to it as the primary caregiver of the

children, allowing defendant to focus almost exclusively on growing the

business. Citing our decision in Monte v. Monte, 212 N.J. Super. 557 (App.

Div. 1986), the judge did not allocate any of the business debt to plaintiff

because she found he intentionally dissipated it by admitting to running it

haphazardly and damaging his credit.

      The judge awarded defendant ten percent of the coverture portion of

plaintiff's pension. She found defendant did not present evidence he contributed




                                                                         A-4437-17T1
                                        8
significantly to the accumulation of the pension by taking on additional marital

responsibilities.

        In a final explanation regarding the distribution the judge stated:

              Moreover, defendant voluntarily dissipated the main
              marital assets, both the marital home and his business,
              to the detriment of plaintiff's equitable distribution.
              Finally, because the business is a going concern,
              defendant has the ability to earn significantly more
              between now and his retirement, hire workers to grow
              the business, and save his unreported cash. In contrast,
              plaintiff must live solely on her pension as the court has
              not awarded alimony.

                                          I.

        Defendant raises the following arguments on this appeal:

              POINT I: THE TRIAL COURT ABUSED ITS
              DISCRETION    IN   DETERMINING     THE
              ALLOCATION OF EQUITABLE DISTRIBUTION.

              POINT II: THE TRIAL COURT ABUSED ITS
              DISCRETION   IN   AWARDING     PLAINTIFF
              [NINETY] PERCENT OF THE COVERTURE
              PORTION OF THE PARTIES' PENSIONS 1.

              POINT III: THE TRIAL COURT ABUSED ITS
              DISCRETION IN AWARDING PLAINTIFF [SIXTY]
              PERCENT OF THE NET EQUITY IN THE MARITAL
              HOME.

              POINT IV: THE TRIAL COURT ABUSED ITS
              DISCRETION IN AWARDING PLAINTIFF [FORTY]

1
    The record reflects there was only one pension belonging to plaintiff.
                                                                              A-4437-17T1
                                          9
PERCENT OF THE PARTIES' PAVING BUSINESS
WHILE ALLOCAT[ING] 100 PERCENT OF THE
BUSINESS DEBT TO DEFENDANT.

POINT V: THE COURT'S DECISION ON THE
ADJUSTMENT FOR MARITAL DEBT IS CLEARLY
ERRONEOUS, MUST BE CORRECTED AND
CONSTITUTES AN ABUSE OF DISCRETION.

       We defer to a trial judge's factfinding "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., 65 N.J. 474,
484 (1974)). "We do not weigh the evidence, assess the
credibility of witnesses, or make conclusions about the
evidence."      Mountain Hill, LLC v. Twp. of
Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008)
(quoting State v. Barone, 147 N.J. 599, 615 (1997)).
We also recognize the Family Part has "special
jurisdiction and expertise in family matters," which
often requires the exercise of reasoned discretion.
Cesare, 154 N.J. at 413. Thus, if we conclude there is
satisfactory evidentiary support for the Family Part
judge's findings, our "task is complete and [we] should
not disturb the result." Beck v. Beck, 86 N.J. 480, 496
(1981) (quoting State v. Johnson, 42 N.J. 146, 161-62
(1964)).

. . . [O]ur "[d]eference 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)). . . .

      "[This is because] [a] Family Part judge has
broad discretion . . . in allocating assets subject to
equitable distribution." Clark v. Clark, 429 N.J. Super.
61, 71 (App. Div. 2012).

                                                             A-4437-17T1
                           10
            [M.G. v. S.M., 457 N.J. Super. 286, 293-94 (App. Div.
            2018) (second and fifth alteration in original)
            (alteration omitted).]

      Having considered defendant's arguments in light of the record, we

conclude they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E). As Judge Berdote Byrne noted, it is axiomatic that

an equitable distribution is not synonymous with an equal distribution. See

Rothman v. Rothman, 65 N.J. 219, 232 n.6 (1974). Moreover, regarding the

debt, she correctly found "[e]ven if debts are presumed to be marital, a debt can

be allocated to one party based upon that party's greater earning potential."

      Defendant's dissipation of the marital residence compared with plaintiff's

attempts to preserve it justified the equitable distribution award regarding the

residence. His uncontroverted dissipation of the business, coupled with his

ability to continue operating it and earn a greater income, clearly justified

allocating the business debt to him. Defendant's earning capacity and the lack

of an award of alimony following a lengthy marriage justified plaintiff retaining

her pension. Judge Berdote Byrne's findings are amply supported by the rec ord

and did not constitute an abuse of discretion. R. 2:11-3(e)(1)(A).

      Affirmed.




                                                                          A-4437-17T1
                                      11
