Abel Bantyiwalu v. Melkemaryam Yimer

NOT FOR PUBLICATION WITHOUT THE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-0343-24

ABEL BANTYIWALU,

Plaintiff-Appellant,

v.

MELKEMARYAM YIMER,

Defendant-Respondent.

_________________________

Submitted November 5, 2025 – Decided January 12, 2026

Before Judges Rose and Torregrossa-O'Connor.

On appeal from the Superior Court of New Jersey,

Chancery Division, Family Part, Essex County, Docket

No. FM-07-0422-23.

Herbert & Weiss, LLP, attorneys for appellant (Helene

C. Herbert, on the briefs).

Melkemaryam A. Yimer, self-represented respondent.

PER CURIAM

After trial in this matrimonial action, plaintiff Abel Bantyiwalu appeals

from portions of the August 19, 2024 Family Part order for final dual judgment

of divorce (FJOD), dissolving his brief marriage to defendant Melkemaryam

Yimer. Plaintiff specifically appeals paragraph seventeen of the FJOD, which

directed plaintiff to pay defendant $12,000 in equitable distribution—a

percentage of funds the court found were marital assets plaintiff depleted or

withdrew as cash from several bank accounts both during the marriage and after

filing for divorce. Plaintiff also challenges paragraph twenty-one denying his

request for counsel fees. After a review of plaintiff's contentions in light of the

record and applicable principles of law, we affirm. 1

1

In addition to challenging paragraphs seventeen and twenty-one, plaintiff's

Notice of Appeal identified paragraph fifteen of the FJOD, which concerns the

equitable distribution of a Fidelity Investment account. However, plaintiff's

brief on appeal does not address or make any arguments concerning distribution

of the Fidelity account, nor did plaintiff seek oral argument. As such, we have

no basis upon which to assess that portion of the court's order, and deem this

issue waived. See Midland Funding, LLC v. Thiel, 446 N.J. Super. 537, 542 n.1

(App. Div. 2016) (when appellant's Notice of Appeal lists issues later "not

briefed on appeal," the Appellate Division "considers [the] appeal from those

[issues] abandoned . . . [and] waived"); Kerney v. Kerney, 81 N.J. Super. 278,

282 (App. Div. 1963) (when "the Notice of Appeal states [specific] grounds, but

the brief completely ignores them and argues other issues," then "there is

nothing in the brief to which [this court's] appellate jurisdiction can attach").

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2

I.

We synthesize the following salient facts from the trial record during

which only the parties testified.2 Both of Ethiopian descent, the parties were

married in New Jersey on July 15, 2021, and share one child, L.M., 3 born in

Ethiopia in 2020. Plaintiff resided in New Jersey and worked for two different

employers when, in April 2021, defendant, a trained secretary with a business

degree from an Ethiopian university, obtained a "green card,"4 and, with the

parties' child, joined plaintiff in New Jersey. After roughly thirteen months of

marriage, plaintiff filed for divorce on August 11, 2022, alleging irreconcilable

differences.

Pertinent to this appeal are plaintiff's financial disclosures in his initial

Case Information Statement (CIS) filed on January 19, 2023, and his amended

2

Issues of custody and support were also addressed at trial and by the FJOD

and are not the subject of this appeal. We note for context the court decided a

spectrum of issues, including: awarding the parties joint legal custody of the

child; denying alimony to defendant; designating defendant as the parent of

primary residence with weekly parenting time for plaintiff; and setting plaintiff's

child support obligation.

3

We use initials to protect the identity of the child. R. 1:38-3(f)(6).

4

A permanent resident card, also known as a "green card," allows holders to

"live and work permanently in the United States." Green Card, U.S. Citizenship

& Immigr. Servs., https://www.uscis.gov/green-card (last visited Jan. 5, 2026).

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CIS filed on April 25, 2024, both of which he affirmed as accurate during trial.

In these statements, plaintiff disclosed five bank accounts held solely in his

name, to which defendant had no access. Those account balances in plaintiff's

2023 CIS totaled $21,623, and, in the 2024 CIS, the same accounts totaled

$1,732.5 In his 2023 CIS, plaintiff listed $63,180 in assets "Subject to Equitable

Distribution"; $195,514 in assets "Not Subject to Equitable Distribution";

$39,528 in liabilities "Subject to Equitable Distribution"; and $34,257 in

liabilities "Not Subject to Equitable Distribution." In his 2024 CIS, plaintiff

disclosed no potential assets "Subject to Equitable Distribution"; $259,068 in

assets "Not Subject to Equitable Distribution"; no liabilities "Subject to

Equitable Distribution"; and $7,344 in liabilities "Not Subject to Equitable

Distribution."

The parties undisputedly never shared a joint back account. Plaintiff

testified he entered the marriage with approximately $100,000,6 which he

classified as "premarital" funds he never intended to convert to marital assets.

5

Of these five accounts, only three are relevant to equitable distribution as

discussed below. The balance of these three accounts as reported by plaintiff in

his 2023 CIS was $21,104, while the total balance for the same accounts, as

reported in his 2024 CIS, was $1,540.

6

Plaintiff at one point indicated the amount could have been "a little over"

$100,000, stating, "[it] could be 100 or 100, 200."

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4

Plaintiff held the funds in several bank accounts in his name only, for which he

remained the sole signatory. He initially explained the account balances, by

2024, had reduced collectively to less than $2,000 based on his "personal use."

He then clarified he used the depleted funds to support the "marriage," "family,"

and himself, and to reduce liabilities, including premarital debt, after he filed

for divorce. Plaintiff testified the amounts listed in his initial 2023 CIS reflected

the balances of his bank accounts on August 11, 2022, the date he filed for

divorce, as he had already spent the rest of the money, retaining approximately

$5,000 to $10,000 in "cash" in his "possession." Plaintiff then explained he

began to pay down debts after he "file[d] for divorce," clarifying the amounts of

liabilities listed in his 2023 CIS were the balances as of December 30, 2022.

During the marriage, defendant worked in "retail" for several months, but

plaintiff confirmed none of defendant's income was ever deposited into his bank

accounts. Plaintiff indicated he "ha[d] no idea what [defendant] did with the

money she earned from her job during the marriage" or whether defendant had

her own bank account.

According to plaintiff, only his own money went "in and out" of his bank

accounts throughout the marriage. Plaintiff admitted his own paychecks were

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occasionally deposited into these accounts, primarily three checking accounts, 7

but he could not further specify when or to which accounts those funds were

deposited. He stated he deposited "one or more" paychecks in each of the three

checking accounts on a "here and there" basis. He further explained he retained

some of these funds in "cash" and "cash[ed] out" paychecks for the couple's rent

and utility bills while the parties were married. When the court directly asked

"what happened to the $100,000," plaintiff responded, "I used it, . . . it's

premarital money."

Plaintiff also testified concerning retirement funds and other investments

he characterized as non-marital assets. He referenced a Fidelity Investment

account for which he claimed he had no statements, indicating he opened the

account three years earlier, before the parties married, and bought and sold

stocks within that account during the marriage with his own work income.

Defendant testified and confirmed plaintiff's testimony in significant

part. She explained she had no access to plaintiff's bank accounts or knowledge

of their contents, stating plaintiff would not allow her to have "any kind of

information" about his finances. She recounted working for approximately three

7

The five accounts included three checking accounts at Wells Fargo, Chase

Bank, and Bank of America, and two savings accounts, at Wells Fargo and Chase

Bank.

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months making minimum wage before she was "forced to stop working" to care

for the parties' daughter "because [plaintiff] left the house." She explained

plaintiff "intentionally" made the situation "difficult" for her because "he kn[e]w

that [she was] new to the country, and . . . c[ould]n't do anything or [was] not

capable of doing anything." Defendant claimed her Ethiopian education and

training did not translate to work opportunities in the United States, explaining

it had "nothing to do with this country[,] it doesn't help at all."

On August 19, 2024, the court rendered oral findings, memorialized by

the detailed FJOD. Relevant here, the court identified the bank accounts as

assets for potential equitable distribution. The court initially noted plaintiff's

failure to disclose "[$]60[,000] and upwards of $100,000 in cash" in his CIS

submissions presented a "huge negative credibility issue for . . . plaintiff." 8

The court addressed in detail each of the N.J.S.A. 2A:34-23.1 equitable

distribution factors. The court acknowledged the parties' short-term marriage

lasted less than thirteen months, and neither party had any known health issues.

The court recognized defendant's limited earning capacity, due to her language

8

The court also found plaintiff's credibility was impacted by his seemingly

admitting to committing tax fraud by "claiming his parents as dependents" when

they "live[d] in Ethiopia."

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barrier and foreign education, relative to plaintiff's because he obtained a degree

in the United States and held full-time employment.

The court assessed expenses and noted any liabilities or debts "appear[ed]

to be de minimis" because plaintiff subsequently satisfied them. Regarding

premarital income and property, the court addressed the bank accounts, finding

all five accounts were in plaintiff's name and exclusive control. The court found

"defendant had no bank accounts," and plaintiff controlled and managed the

finances during the marriage.

The court further determined plaintiff's paychecks for earnings "during

the marriage period, [were] clearly marital property, [and] were deposited into

one of the[] three accounts," but noted plaintiff could not provide any specificity

regarding the amounts deposited or used during the marriage. The court

concluded, "as far as [it] c[ould] tell, the cash in these accounts was

commingled" and "the difference between the [$]100[,000] plus and the

[$]59,552 of debt paid off [wa]s approximately $40,000," which left

"approximately [$]40,000 in unaccounted for cash." The court cited plaintiff's

testimony indicating he used these funds "to pay marital obligations." As such,

the court determined "defendant [wa]s entitled to a portion of the undisclo[sed]

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remaining funds which may have been dissipated or may be in some other

account which . . . plaintiff has failed to disclose."

In setting the distribution percentage, the court "recogniz[ed] that this

[wa]s a short-term marriage," defendant would not receive "any alimony," and

defendant "has real financial issues." Thus, the court "award[ed] defendant

$12,000 against . . . plaintiff which is 30[%]" of $40,000, "the amount that

either . . . plaintiff may still have or which he may have dissipated."

The court also addressed plaintiff's request for counsel fees. The court

found defendant had "very limited earnings and finances," and plaintiff knew

defendant was solely dependent upon him economically during the marriage.

The court noted defendant could not afford her own trial counsel and similarly

"ha[d] no ability to pay an award of plaintiff's legal fees." By contrast, the court

found "plaintiff ha[d] the financial ability and wherewithal to pay his own legal

fees." Thus, the court denied plaintiff's request for legal fees.

II.

On appeal, plaintiff argues the court erred in finding defendant was

entitled to any portion of his $100,000, as it was a premarital asset used during

the marriage, and, after filing for divorce, to pay his personal and marital debts.

He argues "the monies were not deposited into a joint account, nor was the

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money used to buy an asset in both their names." Further, plaintiff contends

"there was an obvious disconnect of understanding between the trial judge and

plaintiff" and claims he "was spoken to in a punitive and disparaging manner"

by the trial court. He also asserts the trial court improperly found plaintiff

committed "tax fraud" when he claimed his parents as dependents. Lastly,

plaintiff argues the court incorrectly denied his application for counsel fees and

deprived him of "an opportunity to submit his application for counsel fees." 9

III.

"Our review of a judgment following a bench trial is limited."

Accounteks.Net, Inc. v. CKR Law, LLP, 475 N.J. Super. 493, 503 (App. Div.

2023) (citing Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)).

Findings by a Family Part judge are "binding on appeal when supported by

9

Plaintiff's reply brief also argues defendant's brief is deficient pursuant to Rule

2:6-2(a)(5) and Rule 2:6-4(a), which require the inclusion of references to the

record. However, plaintiff did not file a motion to strike defendant's brief , and

a reply brief is not a proper vehicle to seek relief. See State v. Smith, 55 N.J.

476, 488 (1970) (reply briefs may only respond to respondent's briefs, other "use

of a reply brief is improper"); see also Berardo v. City of Jersey City, 476 N.J.

Super. 341, 354 (App. Div. 2023) ("'Raising an issue for the first time in a reply

brief is improper[]' [as] 'appellate courts will decline to consider questions or

issues not properly presented to the trial court when an opportunity for such a

presentation is available.'"); see also Domanske v. Rapid-Am. Corp., 330 N.J.

Super. 241, 251-52 (App. Div. 2000) (addressing deficiencies in a respondent's

brief raised via motion to strike).

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adequate, substantial, and credible evidence." Cesare v. Cesare, 154 N.J. 394,

412 (1998). Additionally, "because of the family courts' special jurisdiction and

expertise in family matters, appellate courts should accord deference to family

court factfinding." Id. at 413. Further, "because a trial court hears the case, sees

and observes the witnesses, and hears them testify, it has a better perspective

than a reviewing court in evaluating the veracity of witnesses." Id. at 412

(alterations and internal quotation marks omitted). A family court's credibility

determinations relating to equitable distribution warrant particular deference

when supported by evidence in the record. See M.G. v. S.M., 457 N.J. Super.

286, 298 (App. Div. 2018); Clark v. Clark, 429 N.J. Super. 61, 71-72 (App. Div.

2012). However, a "court's legal conclusions [are] always [reviewed] de novo."

Clark, 429 N.J. Super. at 71 (citing Balsamides v. Protameen Chems., 160 N.J.

352, 373 (1999)).

In reviewing a trial court's determination as to which assets are available

for equitable distribution or the valuation of those assets, "an appellate court

may determine whether the amount and manner of the award constituted an

abuse of the trial judge's discretion." Borodinsky v. Borodinsky, 162 N.J. Super.

437, 444 (App. Div. 1978). Although the Family Part "has broad discretion

in . . . allocating assets subject to equitable distribution, . . . the court must

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provide factual underpinnings and legal bases supporting the exercise of judicial

discretion." Clark, 429 N.J. Super. at 71-72.

A.

Plaintiff first argues the court erred in ordering equitable distribution of

his bank account funds. Well-settled principles guide our review. "Any

property owned by a husband or wife at the time of marriage will remain the

separate property of such spouse and in the event of divorce will not qualify as

an asset eligible for distribution." Painter v. Painter, 65 N.J. 196, 214 (1974).

Further, "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." N.J.S.A. 2A:34-23.1.

Importantly, "the commingling of separate funds . . . with marital

property [can] convert[] those funds into marital property." Ryan v. Ryan, 283

N.J. Super. 21, 25 (App. Div. 1993) (citing Canova v. Canova, 146 N.J. Super.

58, 62 (Ch. Div. 1976)). For example, an account opened before a marriage by

one party and maintained solely in that party's name can lose its exemption when

the account is used during the marriage for marital expenses, employment

earnings were deposited into the account, and the party seeking to exclude the

asset has not provided sufficient documentation to establish exemption from

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equitable distribution. See Tannen v. Tannen, 416 N.J. Super. 248, 281-83

(App. Div. 2010).

Courts making equitable distribution determinations

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;

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

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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;

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.]

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Regarding N.J.S.A. 2A:34-23.1(i), courts making determinations as to the

dissipation of marital assets most often consider

(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.

[Kothari v. Kothari, 255 N.J. Super. 500, 507 (App.

Div. 1992) (quoting Lee R. Russ, Annotation, Spouse's

Dissipation of Marital Assets Prior to Divorce as Factor

in Divorce Court's Determination of Property Division,

41 A.L.R.4th 416, 421 (2025)).]

These factors aid courts in making the pivotal determination: "Whether the

assets were expended by one spouse with the intent of diminishing the other

spouse's share of the marital estate." Ibid.

Here, the family court comprehensively assessed the chronology of

plaintiff's bank account balances, cash assets, and liabilities and determined the

bank account funds had been commingled and were therefore subject to

equitable distribution. Although the exact amount of plaintiff's deposited

earnings is unknown, the court relied on plaintiff's testimony and CIS averments

and reasonably concluded plaintiff deposited some of those wages into these

accounts and used these accounts to "support the family." The court's findings

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that plaintiff used approximately $60,000 of the $100,000 to pay off $59,552 in

debts and liabilities after filing for divorce, yet left a remainder of only $1,540

in the three checking accounts where plaintiff deposited his income, were

sufficiently anchored in the record. Thus, we discern no abuse of discretion in

the court's determining plaintiff had removed or dissipated $40,000 of the

$100,000 prior to and after filing for divorce. We similarly perceive no error in

the trial court's negative credibility inferences, placing weight on plaintiff's

failure to disclose the $100,000 in the CIS and inaccurate representations in

plaintiff's tax filings.

Further, we conclude the record amply demonstrates the court carefully

examined and made specific findings as to each of the prescribed N.J.S.A.

2A:34-23.1 factors before awarding defendant 30% of the undisclosed and

unaccounted-for $40,000. In arriving at that percentage, the court "recogniz[ed]

that this [wa]s a short-term marriage, . . . that the court [did] not

grant[] . . . defendant any alimony[,] and . . . defendant ha[d] . . . real financial

issues." We see no basis to disturb the court's fair determination regarding

equitable distribution of the bank account assets in these circumstances.

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B.

We next address and reject plaintiff's contention the trial court erred in

denying his requested counsel fees. In support of his claim, plaintiff cites no

law or facts, and states only "plaintiff was not given an opportunity to submit

his application for counsel fees and seeks to do so." Because plaintiff has

provided no support for his assertion, we are unable to discern any error or basis

for relief.

Indeed, "the award of counsel fees and costs in a matrimonial action rests

in the discretion of the [trial] court." Williams v. Williams, 59 N.J. 229, 233

(1971). We will disturb a counsel fee determination "only on the 'rarest

occasion,' and then only because of clear abuse of discretion[,]" Strahan v.

Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008) (quoting Rendine v. Pantzer,

141 N.J. 292, 317 (1995)), or "a clear error in judgment," Tannen, 416 N.J.

Super. at 285. Courts must consider each party's financial situation and ability

to pay, and the parties' good faith. Williams, 59 N.J. at 233; see also Salch v.

Salch, 240 N.J. Super. 441, 443 (App. Div. 1990).

Applying this deferential standard, we perceive no such clear abuse of

discretion or error in judgment. The court emphasized the financial disparity

between the parties as the primary basis for its decision, emphasizing

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defendant's complete financial dependence on plaintiff throughout the marriage.

The record demonstrated plaintiff's superior financial situation and ability to pay

counsel fees due to his employment. Conversely, the court found and the record

showed defendant was unable to pay counsel fees of her own, and would be

similarly unable to pay plaintiff's. Accordingly, we are satisfied the court's

determination was sound.

Affirmed.

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