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Regan v. Regan

Decided: December 11, 1990.

FRANCIS JOSEPH REGAN, PLAINTIFF,
v.
VIRGINIA KATE REGAN, DEFENDANT



Fuentes, J.s.c.

Fuentes

In this matter, a consent judgment of divorce obligated the wife to convey her interest in the marital premises to the husband. In the event of sale, the children of the marriage were to receive a share of the net proceeds. The husband remarried and subsequently died intestate without having sold the property. He is survived by his second wife and his children. The question arising from his death is whether the consent judgment of divorce preserved a survivorship interest in the marital home for the children or whether that interest is now limited to an intestate share.

These are the essential facts. Virginia and Francis Regan were married in 1967. They purchased a home in Bloomfield in

1973 and lived there until their divorce in 1981. Three children were born of the marriage, Michael, 23, Suzanne, 22 and Jennifer, 17. Pursuant to the divorce decree, Virginia Regan conveyed her interest in the marital premises to her husband. The conveyance was subject to the condition that, in the event Francis Regan sold the property, the three children were to share equally in half of the net proceeds. In 1982, Francis Regan and Marie Regan were married. No children were born of this marriage. The property was not sold during Francis Regan's lifetime and he died in 1988 without a will. After Francis Regan's death, his surviving spouse qualified as administratrix of the estate. In December 1989, she commenced an action in the Chancery Division for partition. While that case was pending, and with the consent of all the parties, the property was sold and the proceeds deposited with the Clerk of the Superior Court.

Marie Regan now brings a post-judgment motion seeking a clarification of the divorce judgment and an order declaring the entire premises subject to the laws of intestate succession in accordance with N.J.S.A. 3B:5-3d. Under intestate succession, she would be entitled to one-half of the proceeds on deposit, while the other half would be divided equally among the children. The children object to this method of distribution claiming they are entitled to half of the property's value pursuant to their parents' divorce judgment. They also claim they are entitled to half of the remainder based upon intestate succession. Under the children's formula, they receive 75% while Marie Regan gets 25%. There are no cases in this State involving a similar fact pattern. Based on the facts and circumstances of this case, I am persuaded that the children no longer have an interest in the marital premises under the divorce decree and their interest is therefore limited to the amount to which they are entitled under the laws of intestate succession.

The relevant provision of the judgment of divorce provides that:

. . . defendant shall transfer to plaintiff all of her right, title and interest in and to premises commonly known as 34 Elmwood Avenue, Bloomfield, Essex County New Jersey which heretofore had been in the name of plaintiff and defendant as tenants by the entirety which transfer shall include defendant's dower interest therein which she does hereby release and relinquish in accordance with the statute in such case made and provided. Plaintiff shall be the sole and exclusive owner of said premises and shall have the right to mortgage, transfer, encumber or convey said premises and deal with same as if it were his sole and exclusive property. Provided, however, that in the event of the sale of said premises one half of the consideration therefor shall be placed in a fund by plaintiff for the benefit of the children and divided equally amongst the children, each child to receive said child's share at time of majority. There shall no restriction upon the plaintiff or compulsion to sell said premises at any time and he may keep it for the remainder of his life or sell it at any sooner date and only upon the sale of said premises when in the sole discretion of plaintiff it shall be deemed proper or appropriate shall one-half of said proceeds be divided amongst the children and if they have already at that time obtained the age of majority it will immediately be distributed rather than held into a fund for them. [Emphasis supplied.]

Marie Regan's basic argument is that, since the property was not sold during Francis Regan's lifetime, the children no longer had an interest in the property after their father's death. Virginia Regan and the children argue that, although the marital premises were not sold, her intent at the time of the divorce was to guarantee the children a 50% interest. It is undisputed that the property in question was the principal marital dwelling and subject to equitable distribution. Thus, Virginia Regan would have been entitled to a share of the marital residence at the time of divorce. However, she chose to give that share to the children. To support their contention, the children argue that under the divorce decree, Mr. Regan had the right to mortgage, transfer, encumber or convey the premises " as if it were his sole and exclusive property." Emphasis supplied. It is suggested that the phrase "as if" means that the property was not Francis Regan's sole property, rather the conveyance was subject to the children's 50% interest.

Preliminarily, it should be observed that while a consent judgment has the characteristics of both a contract and a judgment, it is not strictly a judicial decree. Stonehurst at Freehold v. Freehold Tp. 139 N.J. Super. 311, 313, 353 A.2d 560

(Law Div.1976). Rather, a consent judgment represents an agreement of the parties "which receives the sanction of the court and it constitutes a contract between the parties to the agreement [which] operates as an adjudication between them." Black's Law Dictionary (6 ed. 1990) at 842; First National State Bank v. Gray, 232 N.J. Super. 368, 372, 556 A.2d 1334 (Law Div.1989). As such, a consent judgment is subject to many of the rules relating to ...


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