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Berlin v. Berlin

Decided: December 19, 1984.

JOAN BERLIN, PLAINTIFF,
v.
EDWIN F. BERLIN, DEFENDANT



Sorkow, J.s.c., P.J.F.P.

Sorkow

By motion, the Executrix of plaintiff wife's estate seeks to be substituted for plaintiff to enforce this court's prior order requiring the marital premises to be sold.

Plaintiff and defendant were divorced on June 3, 1977. Three children were born to the marriage all of whom are now emancipated. The final judgment of divorce incorporated a property settlement agreement between the parties. The agreement provided for the sale of the marital home located at 269 Gieve Drive, New Milford, New Jersey, as follows:

It is understood and agreed that the wife shall have exclusive right to remain in said premises for a period of three years from the date hereof, at which time the house shall be sold at a price agreed upon by the parties. Upon the sale

and after deducting the costs for payment of the brokerage fees and reasonable closing expenses, the parties will equally divide the proceeds.

The defendant has been living in the marital home for approximately five years. According to the agreement, the marital premises should have been sold by June 3, 1980.

The defendant has refused to comply with the Final Judgment causing the plaintiff to bring a motion in aid of litigant's rights. This court finding the agreed precondition having been met, signed an order for sale on March 8, 1984. On March 23, 1984, the plaintiff died testate. The marital home had yet to be sold. The children of the decedent underwent considerable financial stress throughout their mother's fatal illness and now seek their equitable share of the marital home. The defendant has been living in the marital home with his second wife and 12-year-old daughter from his second marriage. On July 29, 1984, the Executrix of plaintiff's estate brought this application for an order requiring the defendant to immediately comply with the court's order of March 9, 1984.

The first issue to be addressed by this court is one of jurisdiction: whether the Chancery Division/Family Part has continuing jurisdiction over this matter or whether the Chancery Division/General Equity Part should assume jurisdiction since there is no longer a matrimonial dispute now that plaintiff wife is deceased.

January 1, 1984, marked the birth of the Chancery Division/Family Part. Actions to be brought in the Family Part are now delineated in R. 5:1-2. That rule provides:

All civil actions in which the principal claim is unique to and arises out of a family or family type relationship shall be brought in the Family Part.

R. 4:75, now superceded, which controlled actions known as "family actions" reads:

Matrimonial actions shall be construed broadly to include all actions brought under N.J.S.A. 2A:34-1 thru 27, inclusive R.S. 9:2-1 to 11 inclusive . . . and in general all actions directly involving the status of marriage awards to and support of spouses and former spouses . . . claims between ...


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