On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County.
Pressler, Brody and Cohen. The opinion of the court was delivered by Brody, J.A.D.
Plaintiff appeals from that portion of a divorce judgment declaring the marital home not subject to equitable distribution. Defendant acquired sole title in 1969, four years after the marriage, when plaintiff conveyed to her his interest as a tenant by the entirety. The trial court found that plaintiff is "estopped" from claiming a distributive share because, in consideration for the conveyance, defendant agreed to resume cohabitation with plaintiff and to abandon her plan to divorce him on the ground of adultery. Two of the parties' three children were born during the 12 years they lived together after the reconciliation.
The trial judge's findings and conclusions on the point are as follows:
In August of 1969, Plaintiff contacted the Defendant and requested an attempt at reconciliation. Defendant testified that she was upset and confused since evidently this was the second occasion of marital infidelity. Defendant consulted with her lawyer and then indicated to Plaintiff that if he would agree to deed the house to her, he could come back.
Defendant testified Plaintiff agreed. Defendant contacted her lawyer and told her to prepare a deed. The deed was prepared and both parties went to the lawyer's office and executed the deed marked D-1 in evidence.
After the deed was signed (within days), the reconciliation occurred. Defendant specifically waiting until after the deed was signed to resume cohabitation with Plaintiff and indicated that she probably would not have reconciled if he didn't deed the house to her as security in the event of a future separation.
No request was ever made by Plaintiff to put the house back in his name after the reconciliation. There is no reason why a valid reconciliation agreement should not be enforced.
Based upon the testimony and my assessment of the credibility of the witnesses, I have no doubt but that it was the Plaintiff's intent to divest himself of the property and give it to Defendant in furtherance of the reconciliation understanding between the parties.
The transfer took place in 1969. No demands were made to return the property to joint names after the reconciliation. Therefore, equitable estoppel opts to bar Plaintiff from now making a claim to the property. . . .
In some circumstances a reconciliation agreement will be enforced if it is fair and equitable. We remand for such further proceedings as may be needed for a determination of the factual issues raised by our identification of those circumstances.
Two years after the conveyance the Legislature authorized courts to equitably distribute between divorcing spouses the property that they acquired during the marriage. N.J.S.A. 2A:34-23. In Painter v. Painter, 65 N.J. 196, 217 (1974), the Supreme Court held "the Legislative intent to be that all property, regardless of its source, in which a spouse acquires an interest during the marriage shall be eligible for distribution in the event of divorce." (Emphasis in original) In Rothman v. Rothman, 65 N.J. 219, 225-232 (1974), the Court held that the statute is constitutional even though it subjects to judicial distribution property that was acquired before its effective date. Plaintiff ...