On appeal from the Superior Court, Chancery Division, Essex County.
This is a post-divorce controversy. Plaintiff Gloria Schaeffer appeals from the denial of her motion for reconsideration of an order modifying the provision of the final judgment of divorce respecting the marital residence.
The parties were married in 1963. Two children were born to them, Roslyn, now 15, and Ronald, now 13. Plaintiff filed a complaint for divorce in 1978, the action was tried and a final judgment was entered in August 1979. In addition to granting the divorce and awarding custody of the children to plaintiff, subject to defendant's right to liberal visitation, the judgment disposed of all of the financial aspects of the marital relationship. With respect to support matters, defendant was ordered to pay plaintiff an unallocated weekly sum of $100 for her support and the support of the children, plaintiff was directed to continue receiving the monthly Social Security benefits due the children and to apply them to their support, and defendant was ordered to pay for the children's health care.
With respect to equitable distribution, the trial judge determined that $71,000 had been brought into the marriage by defendant and was not, therefore, subject to distribution. Accordingly, the judgment provided that, with the exception of separately distributed personal property and the marital residence, all assets, including bank accounts and securities, be valued as of the date of the filing of the complaint and that $43,000 of that value be paid to defendant, the balance of approximately $16,000 to be divided between the parties. The remaining $28,000 to which defendant was entitled as his sole, premarital property was to be received by him out of the proceeds of the eventual sale of the marital residence. The provision of the judgment dealing with the residence was to accord plaintiff and the children the right of exclusive occupancy thereof until the emancipation of the younger child, plaintiff to pay all carrying charges until then. Upon the emancipation of the younger child the house was to be sold with either party
accorded the right to purchase the interest of the other. Out of the net proceeds of the sale defendant was to receive $28,000, plaintiff was to receive such sums as she would have paid to reduce the principal of the mortgage and for repairs, and any remaining balance was to be divided between them.
Plaintiff appealed from the judgment, challenging the determination respecting the defendant's right to reimbursement of the sum of $71,000 found to have been acquired by him prior to the marriage. We affirmed the judgment in July 1981 under Docket A-1024079. In April 1980, while the appeal was pending, defendant's motion to modify the weekly support was granted. The motion was based on the substantial increase in the children's monthly Social Security benefits, and accordingly his weekly support obligation was reduced from $100 to $70 a week.
In August 1980, about a year after entry of the final judgment and while plaintiff's appeal therefrom was still pending, plaintiff remarried. The final judgment was silent as to the effect of her remarriage on her right to continue in occupancy of the house with the children, and it is clear that that contingency was not considered when the action was tried and the judgment entered. In September 1980, the month after plaintiff's remarriage, defendant moved for modification of the final judgment to require sale of the residence by reason of the remarriage. The wife's resistance to the motion was based on her contention that she had relied on the explicit terms of the sale provision of the judgment when she remarried; that she was not financially able either to purchase defendant's interest or to provide reasonable alternative living accommodation for the children, and hence that both she and the children would be inordinately prejudiced by the grant of the relief the defendant sought.
Defendant's motion was heard late in September 1980. It was the trial court's view that the relief sought should be granted since, had it considered the remarriage possibility when entering
the final judgment, it would have required sale of the house in that event. Accordingly, the judge regarded the omission of that stipulation from the judgment as having been in the nature of a clerical error. An order was accordingly entered in November 1980 requiring the sale but, in order to ameliorate any prejudice to plaintiff, delaying the sale for a one-year period.
By the time the order was entered, plaintiff's remarriage had already failed. She and her second husband had separated at the end of October 1980. Shortly thereafter, she filed a complaint for nullity against him, later amending it to assert a cause of action for divorce. Because of her return to her status quo before the remarriage, she moved in December 1980 for relief from the order requiring the sale of the ...