MEHRZAD AZMI SHABESTARI VS. REZA FARHADI (FM-18-0817-16, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-3759-17T1

MEHRZAD AZMI SHABESTARI,

Plaintiff-Respondent,

v.

REZA FARHADI,

Defendant-Appellant.
_______________________________

Argued May 9, 2019 – Decided June 18, 2019

Before Judges Simonelli, Whipple and Firko.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FM-18-0817-16.

Gregory A. Pasler argued the cause for appellant
(Townsend, Tomaio, & Newmark, LLC, attorneys;
Gregory A. Pasler, on the briefs).

Karen Fasano Thomsen argued the cause for respondent
(Armour Law Firm, attorneys; Karen Fasano Thomsen,
on the brief).

PER CURIAM
 Defendant, Reza Farhadi, appeals from a March 14, 2018 dual final

judgment of divorce, entered after a seven-day trial, ordering him to pay his

student loan and marital debt; concluding plaintiff, Mehrzad Azmi Shabestari,

satisfied a portion of her tuition expenses with funds provided by her parents;

and requiring defendant to pay one-half of the rent after he left the marital

residence. There exists substantial, credible evidence in the record to support

the trial judge's findings, including his credibility findings, and we see no abuse

of discretion. We affirm substantially for the reasons given by the judge in his

comprehensive seventeen-page written opinion.1 We add the following remarks.

I.

The parties were married in Iran on July 22, 2011, and in Somerset, New

Jersey on July 26, 2014. No children were born of the marriage. In Fall 2011,

the parties moved to New Jersey and both enrolled in post-graduate Ph.D.

1
Defendant's appeal relative to registration of the parties' Islamic divorce is
moot because an order entered on September 14, 2018, and a consent order
entered on October 29, 2018, resolve the issues on appeal. Further, at oral
argument, counsel for plaintiff represented the Islamic divorce was registered
on January 14, 2019, rendering defendant's appeal as to this issue moot. Plaintiff
thus withdrew her cross-appeal seeking defendant's compliance with registering
the Islamic divorce prior to oral argument. We also note consent orders are not
appealable, Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 207 (App. Div.
2009) (citation omitted), and the consent order here did not preserve any right
to appeal.
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programs at Rutgers University. In order to meet their tuition expenses,

defendant testified he obtained two student loans in his name totaling $145,540

but since his tuition was approximately $80,000, the difference was applied

towards payment of marital expenses. Defendant admitted over $41,377.73 of

interest accrued on his loans because he failed to timely complete his studies,

and his parents provided the parties with $225,000 in cash in order to subsidize

their expenses.

Defendant claimed he procured two types of student loans, Stafford Direct

Loans totaling $82,000, and Student Plus Loans totaling $63,540, yet his first

Case Information Statement (CIS) dated July 14, 2016 indicates his student loan

debt was $176,661. Under the section entitled "Name of Responsible Party" he

listed "D." He claimed his tuition was fully paid for by the Stafford Direct Loans

and the loan funds were directly remitted to Rutgers. Even though defendant

claimed his Student Plus Loan was utilized for marital living expenses, the judge

found defendant "failed to provide any evidence whatsoever that any loan

proceeds were deposited into the parties' joint account or used for joint

expenses."

Defendant had a green card and applied for his loans as a single, unmarried

student, even though he was married at the time. Due to her immigration status,

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plaintiff was ineligible for student loans, and paid her tuition with monetary gifts

from her family. Both parties agreed plaintiff maintained her own personal

savings account during the marriage, where she deposited gifts from her parents

and her earnings. Defendant deposited money he received from his parents into

the parties' joint account because "he viewed the marriage as a joint enterprise

and he was the main investor." He also deposited his earnings into the joint

account, and a portion into plaintiff's individual account. In total, defendant

claimed he contributed $289,043 more than plaintiff towards their marital

expenses, and he sought equitable distribution of these monies. He produced no

documentary evidence specifying what he sought reimbursement for.

Plaintiff objected to defendant's claim for reimbursement because it was

not pled or briefed, and he improperly raised it for the first time on the last day

of trial during her redirect examination. The trial judge found defendant did not

amend his CIS to list the loans from his parents until the eve of trial , on October

29, 2017. Defendant's amended CIS listed a loan in the amount of $232,825

from his parents under the Statement of Liabilities section, and he indicated it

was a joint responsibility. 2

2
Pursuant to Rule 5:5-2(c):

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 The parties owned no significant assets in the United States, and any

property individually owned by them in Iran remained in their respective names.

Plaintiff testified she left the marriage debt free and obtained employment as an

assistant professor of accounting at Towson University, while defendant allowed

interest in excess of $41,377.73 to accrue on his student debt while he remained

unemployed, but he pursued his dissertation in finance.

Defendant testified he made "proclamations" in Iran around the time of

the parties' 2011 wedding and claimed plaintiff and her family "silently

assented" to a loan agreement. The judge concluded, "[a]fter two years of

litigation, [d]efendant did not offer any proof during trial to support his financial

claim of a loan to the married couple from his parents[,]" and there were no

terms associated with the purported loans. The judge found: "[d]efendant failed

to present competent evidence rebutting the presumption that a transfer of

Parties are under a continuing duty in all cases to
inform the court of any material changes in the
information supplied on the [CIS]. All amendments to
the statement shall be filed with the court no later than
[twenty] days before the final hearing. The court may
prohibit a party from introducing into evidence any
information not disclosed or it may enter such other
order as it deems appropriate.

Defendant's second CIS was untimely filed.
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money from a parent to a child is a gift." On the issue of the loans, the judge

concluded defendant

failed to meet his burden of proof to establish the
existence of his student loans. . . . No proof was
provided that any indebtedness existed at the start of
trial . . . . Additionally, [d]efendant failed to provide
any proof regarding where the proceeds of the alleged
loans were deposited or for what purpose they were
used.

At trial, defendant "offered no proof of the existence of any parental loans,

only his father's testimony[.]" Defendant's father testified there was no written

documentation to confirm the so-called loans, he was unsure of the amount of

money he gave his son during the marriage, and he was not informed the sum

was $225,000 until after the complaint for divorce was filed. Moreover, the

monies from defendant's parents were transferred into the parties' joint account,

which was shared with defendant's brother and mother, leading the judge to

conclude the money was comingled, and he could not "definitively conclude that

the gifted monies were exclusively used for marital expenses." The judge also

concluded defendant "failed to present competent evidence rebutting the

presumption that a transfer of money from a parent to a child is a gift."

On appeal defendant argues the judge erred in his application of the

statutory criteria under N.J.S.A. 2A:34-23.1 by finding defendant failed to

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provide sufficient proof of his student loans, the amount owed, concluding it

was "unproven, forgivable student debt[;]" ordering him to be responsible for

all of the marital debt; that the trial judge abused his discretion by finding

plaintiff satisfied $68,242 of her tuition payments; failed to equitably reimburse

defendant for his investment in the marriage; and required him to contribute one-

half of the rental payments for the parties' marital residence after he returned to

Iran.

II.

This was a relatively short-term marriage. Neither party sought alimony,

no real property was acquired during the marriage, and there were minimal

personal assets subject to equitable distribution. Neither party was awarded

counsel fees. The judge carefully considered each statutory factor for equitable

distribution under N.J.S.A. 2A:34-23.1 and determined plaintiff paid $78,391.25

towards her tuition debt of $93,203.55 based upon her "documentary proofs

showing $68,242 in transfers from her individual account into the parties' joint

. . . account . . . that correlate with tuition checks to Rutgers from the joint

account." The parties' respective families gifted $14,812.30 to her to pay the

tuition balance, and plaintiff provided documentary evidence of her $46,557.70

payment towards marital expenses.

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 Regarding defendant's student loan debt, the judge found defendant

provided limited evidence . . . . He presented a partial
printout of a login screen with his name on it as his sole
proof of loans. He continually stated at trial that he
"could go on-line" and print out the loan documents but
he never did so. He did not provide any loan origination
documents, loan statements or a credit report. [The
partial printout] does not evidence loans in
[d]efendant's name or show that any loans are
outstanding.

In contrast, plaintiff produced extensive banking records, tuition bills, and

her testimony was found credible by the judge. Plaintiff proved her tuition cost

was $93,203.55 and $78,391.25 was paid towards the same. Defendant did not

object to plaintiff's proofs. We reject defendant's arguments that the judge

abused his discretion on this issue.

"Where the issue on appeal concerns which assets are available for

distribution or the valuation of those assets . . . the standard of review is whether

the trial judge's findings are supported by adequate credible evidence in the

record." Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div.

1978). But "where the issue on appeal concerns the manner in which allocation

of the eligible assets is made . . . . [we] may determine whether the amount and

manner of the award constituted an abuse of the trial judge's discretion." Id. at

444. Thus we review the judge's decision as to equitable distribution for abuse

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of discretion, recognizing the court's "special jurisdiction and expertise in family

matters[.]" Cesare v. Cesare, 154 N.J. 394, 413 (1998). And we affirm equitable

distribution awards "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." LaSala v. LaSala, 335 N.J. Super. 1, 6 (2000).

Equitable distribution is governed by N.J.S.A. 2A:34-23.1. This statute

authorizes a judge to determine not only which assets are eligible for distribution

and their value, but also how to allocate those assets. Rothman v. Rothman, 65

N.J. 219, 232 (1974). When determining the parties' equitable distribution of

the marital estate, a judge must consider, but is not limited to, the factors set

forth in N.J.S.A. 2A:34-23.1.

The judge applied the factors set forth in N.J.S.A. 2A:34-23.1 to the

parties' circumstances and found the parties were married for five years an d

eight months, they were in "good health[,]" and neither party brought substantial

assets to the marriage. Plaintiff was twenty-nine years old and defendant was

thirty-three years old. They lived a "moderately enhanced student lifestyle[,]"

renting an apartment near Rutgers at a cost of $1,190 per month. Plaintiff

completed her coursework and was employed while defendant delayed

completion of his Ph.D.—admittedly to defer his student loan payments—and

A-3759-17T1
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remained unemployed and supported by his family. The judge reached this

conclusion because he found the parties commenced their studies in the United

States at the same time, have similar post-graduate degrees, and comparable

earning capacities. The judge found defendant incredulous when he "testified

he has not looked for employment because there is no job available for him in

the current market."

Defendant argues the judge abused his discretion by concluding plaintiff

satisfied $68,242 of her tuition debt because there are "only three" simultaneous

transfers to the joint account from plaintiff's individual account which

correspond with tuition payments, and if "every dollar she contributed from her

sole account to the joint account . . . went towards her tuition," she could not

have contributed to the parties' living expenses. Defendant further contends

plaintiff's documentation establishes she paid $41,849.25 of her tuition, and not

$68,242, which he contends is proof he paid the remaining balance of

$51,354.30 towards her tuition, while she did not contribute to his tuition and

only minimally towards living expenses. We disagree. The judge aptly found

plaintiff's parents gifted her approximately $123,000 over the course of the

parties' marriage, which plaintiff credibly testified was not anticipated to be used

for living expenses.

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 The judge also found plaintiff credibly testified she earned $32,000 over

five years, making her contribution to the marriage approximately $155,000.

Subtracting the $27,000 bank account balance at the time she filed her

complaint, plaintiff's financial contribution to the marriage was approximately

$128,000.

At trial, plaintiff provided a detailed analysis of the money transfers from

her personal account to the parties' joint checking account in order to write

checks to Rutgers, and documentation from her student account verifying her

tuition per semester, along with correlating checks to Rutgers for those amounts.

Relying on Tiernan v. Carasaljo Pines, 51 N.J. Super. 393, 404-05 (App. Div.

1958), the trial judge rightfully determined the testimony of defendant and his

father did not satisfy the two elements required to prove the existence of a loan:

the lender advancing money or something of value at the time of the agreement,

and a stipulation or agreement to repay the lender, including interest rates and

date of repayment. Defendant failed to submit proof of any written or oral

agreement to substantiate repayment of monies to his family.

All property "legally or beneficially acquired during the marriage . . . by

either party by way of gift, devise, or intestate succession" except interspousal

gifts is generally excluded from equitable distribution. N.J.S.A. 2A:34-23(h).

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"A 'gift' is a transfer without consideration, requiring an unequivocal donative

intent on the part of the donor, actual or symbolic delivery of the subject matter

of the gift, and an absolute and irrevocable relinquishment of ownership by the

donor." Sleeper v. Sleeper, 184 N.J. Super. 544, 548 (App. Div. 1982) (citation

omitted). "These matters are fact sensitive. When a particular debt is claimed

to be owed to a member of one spouse's family, the burden of proof rests on the

claiming spouse to establishing a bona fide obligation to repay the monies

asserted as loans." Slutsky v. Slutsky, 451 N.J. Super. 332, 348 (App. Div.

2017).

Because there was no documentary evidence submitted by defendant, all

of his proofs in this matter were testimonial in nature. The testimony of

defendant and his father was insufficient to prove an oral contract was formed

between plaintiff and defendant's family to repay the $225,000 amount. At his

deposition, defendant testified: "Let me make it clear for you[,] for all money

that I am claiming from my family[,] I didn't sign anything, I don't have proof

from my family." Consequently, defendant failed to defeat the presumption that

the monies from his parents were a gift. We see no reason to disturb the judge's

findings on this issue.

III.

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 Next, defendant argues pursuant to Mahoney v. Mahoney, 91 N.J. 488

(1982), the judge erred by failing to apply an equitable remedy to reimburse

defendant for his investment in the marriage. Plaintiff argues defendant failed

to plead let alone prove a reimbursement claim. In Mahoney, the parties were

married for approximately seven years before separating, and they shared the

household expenses during the marriage. Id. at 492. The husband entered into

a post-graduate program for sixteen months. Ibid. He did not contribute to

household expenses during that time while the wife contributed approximately

$24,000 towards the household expenses. Ibid.

The wife later returned to school part-time to obtain a post-graduate

degree. Id. at 493. She worked full-time while in school, and completed her

degree one year after the parties separated. Ibid. Neither party requested

alimony, the parties did not acquire any real property, and they divided their

minimal personal property. Ibid. The only issue at trial was whether the wife

should be reimbursed for her contribution to the marriage while her husband was

in school. Ibid. The trial court found the wife was entitled to an equitable share

of the value of her husband's degree, but we reversed, finding professional

licenses and educational degrees are not subject to equitable distribution. Id. at

493-94. Further, our Supreme Court has held it did not support reimbursement

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between former spouses in alimony proceedings, and "every joint undertaking

has its bounds of fairness." Id. at 500. Defendant relies on the Supreme Court's

analysis:

Where a partner to marriage takes the benefits of his [or
her] spouse's support in obtaining a professional degree
or license with the understanding that future benefits
will accrue and inure to both of them, and the marriage
is then terminated without the supported spouse giving
anything in return, an unfairness has occurred that calls
for a remedy.

In this case, the supporting spouse made financial
contributions towards her husband's professional
education with the expectation that both parties would
enjoy material benefits flowing from the professional
license or degree. It is therefore patently unfair that the
supporting spouse be denied the mutually anticipated
benefit while the supported spouse keeps not only the
degree, but also all of the financial and material rewards
flowing from it.

[Ibid.]

Defendant argues both parties pursuing doctorate degrees was a pivotal

factor in entering the marriage, and since he paid more than one-half of

plaintiff's tuition costs, he should be reimbursed for his "investment in the

marriage." We disagree. As a procedural matter, defendant failed to preserve

this issue on appeal because he did not plead same and did not brief it for the

trial court. "[A] mere mention of an issue in oral argument does not require an

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appellate court to address it." Pressler & Verniero, Current N.J. Court Rules,

cmt. 3 on R. 2:6-2 (2019); Selective Ins. Co. v. Rothman, 208 N.J. 580, 586

(2012). Nevertheless, we will address the merits for the sake of completeness.

As noted previously, defendant did not raise the reimbursement issue until

nine days before trial, thereby resulting in prejudice to plaintiff. If a party

requests college or post-secondary school contribution, the CIS instructions

require a party to

attach all relevant information pertaining to that
request, including but not limited to documentation of
all costs and reimbursements or assistance for which
contribution is sought, such as invoices or receipts for
tuition, board and books; proof of enrollment; and proof
of all financial aid, scholarships, grants and student
loans obtained.

[Family Part Case Information Statement, Pressler &
Verniero, Current N.J. Court Rules, Appendix V to R.
5:5-4 at www.gannlaw.com (2019).]

Defendant's first CIS attached three Rutgers invoices, which are of such

poor quality it is impossible to discern the amounts of the bills or which semester

they coincide with. Defendant's second CIS also includes blurry invoices, and

only half of a screenshot listing federal loans and other loans allegedly in his

name. The judge rightfully concluded these documents were incomplete and

insufficient to support defendant's reimbursement and equitable distribution

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claims. Further, plaintiff was deprived of the opportunity to conduct discovery

as to defendant's second CIS which raised material, new information, and

theories. Our courts have long upheld parties must come to court with "clean

hands." "[T]he discretionary application of the equitable maxim of unclean

hands applies to matrimonial cases. It is well settled 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)

(citation omitted) (quoting Chrisomalis v. Chrisomalis, 260 N.J. Super. 50, 53-

54 (App. Div. 1992)).

Mahoney also held reimbursement alimony consists of "all financial

contributions towards the former spouse's education, including household

expenses, educational costs, school travel expenses[,] and any other

contributions used by the supported spouse in obtaining his or her degree or

license." 91 N.J. at 501. "[A]ny other contributions" includes expenses such as

"medical expenses, clothing expenses, entertainment and leisure expenses, costs

of toiletry and personal expenses and the like." Reiss v. Reiss, 195 N.J. Super.

150, 159 (Ch. Div. 1984), aff'd in part, remanded in part, 205 N.J. Super. 41

(App. Div. 1985).

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 Defendant claims he contributed $416,215 towards marital expenses,

including the money from his parents, his student loans, and the interest accrued

from those loans, while plaintiff only contributed $127,172. The evidence

shows plaintiff contributed approximately $128,000 toward the marriage, and

defendant failed to prove he paid for her entire education.

The present case is therefore distinguishable from Mahoney. Defendant

did not exclusively pay for plaintiff's education, and she contributed to martial

expenses, while the husband in Mahoney did not. Moreover, in Mahoney, the

wife deferred her own education for the benefit of her husband. Here, the judge

articulated:

[t]he present case is distinguishable from cases where
there is a supporting spouse who contributes to a
partner's degree and is left without any benefit upon
divorce. Both parties were students, both commenced
[Ph.D.] studies at the same time, both worked during
the marriage, and both received monetary gifts from
their families.

[(Citation omitted).]

Defendant's reliance on Mahoney is misplaced, and we defer to the judge's

credibility assessments of the parties, the witness, and the judge's findings. The

judge's decision was supported by ample credible evidence in the record and we

see no reason to disturb his findings.

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 IV.

Finally, defendant argues the judge erred by requiring him to contribute

one-half of the rental payments because the complaint was filed three months

after the parties separated, thereby releasing him from any obligation to pay rent.

We disagree. Defendant left the marital residence and returned to Iran leaving

plaintiff with exclusive possession of their apartment. Defendant relies on

Painter v. Painter, 65 N.J. 196, 218 (1974), superseded in part by statutory

amendment, N.J.S.A. 2A:23, L. 1980, c. 181, §1, as recognized in Landwehr v.

Landwehr, 111 N.J. 491, 498 (1988), which held, "for purposes of determining

what property will be eligible for distribution the period of acquisition should

be deemed to terminate the day the complaint is filed."

Plaintiff testified defendant's name was on the parties' lease agreement,

creating a contractual obligation separate and apart from "property" subject to

equitable distribution, thereby making Painter inapplicable. She testified she

asked defendant to either pay the rent or remove his name from the lease, which

he refused to do. From the time defendant left the former marital residence, in

December 2015, until the end of the lease term in July 2016, plaintiff paid for

all Schedule A shelter expenses herself using her own funds.

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 It is a basic principle of landlord-tenant law that one has an obligation to

pay rent under a lease, regardless of whether they live at the premises or not. A

tenant's abandonment of a premises, without the consent of the landlord, severs

the tenant's privity of estate, but does not sever the privity of contract, which

requires the tenant to continue to pay rent under the lease. See N.J. Indus. Props.

v. Y.C. & V.L. Inc., 100 N.J. 432, 443-44 (1985). Painter does not change this

principle. The judge did not abuse his discretion by requiring defendant to

reimburse plaintiff for one-half of the rental payments after he voluntarily

abandoned the premises.

We conclude that the remaining arguments – to the extent we have not

addressed them – lack sufficient merit to warrant any further discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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