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Iorio v. Iorio

Decided: October 25, 1991.

DOROTHY DI IORIO, PLAINTIFF,
v.
FRED DI IORIO, DEFENDANT



UNION COUNTRY. FAMILY PART

Whitken, J.s.c.

Whitken

WHITKEN, J.S.C.

This matter comes before the court pursuant to a motion for pendente lite relief by plaintiff and a cross-motion by defendant to set aside a lis pendens filed by plaintiff, which defendant contends affects his ability to conduct his business since the lis pendens affects, not only the property owned jointly by plaintiff and defendant, but other business property held by defendant in his own name. Research fails to reveal

any New Jersey case that has decided the issue as to whether it is appropriate to file a lis pendens in a matrimonial action wherein the filing party seeks to protect his or her interest in real estate that may be subject to equitable distribution. To resolve this matter requires an examination of the law regarding both lis pendens and equitable distribution.

A.

N.J.S.A. 2A:15-6 entitled "Written Notice of Pendency of Action; Contents" provides as follows:

In every action, instituted in any court of this state having civil jurisdiction or in the United States District Court for the District of New Jersey, the object of which is to enforce a lien, other than a mechanic's lien, upon real estate or to affect the title to real estate or a lien or encumbrance thereon, plaintiff or his attorney shall, after the filing of the complaint, file in the office of the county clerk or registrar of deeds and mortgages, as the case may be, of the county in which the affected real estate is situate, a written notice of the pendency of the action, which shall set forth the title and the general object thereof, with a description of the affected real estate.

No notice of lis pendens shall be filed under this article in an action to recover a judgment for money or damages only.

Plaintiff contends that, since she seeks equitable distribution as to real estate owned by the parties, she is justified by the statute in filing the lis pendens.

It should be noted that a lis pendens is not appropriate if only money or damages are being sought. Real property must be affected.

The only New Jersey case this court has been able to locate discussing a lis pendens in a matrimonial action is Wood v. Price, 79 N.J. Eq. 1, 81 A. 1093 (Ch.1910), aff'd 79 N.J. Eq. 620, 81 A. 983 (E. & A.1911), which was a suit for alimony brought under the Divorce Act wherein a writ of sequestration was issued requiring defendant's estate, property and effects and the rents and profits thereof to be sequestered to compel the appearance of defendant and the performance of any order or decree that might be made in the suit. Although the case was decided based upon a writ of sequestration, the court stated:

It is next argued that no notice of lis pendens has been filed in the alimony suit at the time the deed from Robert to Jacob Price was made and recorded. The act respecting notice of lis pendens (P.L. 1902 p. 477 § 1) provides that neither the issuing of a summons or subpoena, or other process or writ, nor the filing of a declaration or bill in any suit relating to or affecting the possession of or title to lands, nor any proceedings had thereon prior to final judgment or decree, shall be taken as constructive notice to any bona fide purchaser or mortgagee until a written notice of lis pendens has been filed in the office of the clerk or registrar of the county where the land lies. [79 N.J. Eq. at 8, 81 A. 1093]

In commenting on this argument, the court stated again at page 8:

It is, I think quite doubtful whether the pending suit for alimony is a suit relating to or affecting the possession or title of lands, within the meaning of this statutory provision respecting lis pendens. [ Ibid. ]

It should, of course, be noted that the above 1910 case was based upon a matrimonial claim seeking alimony at a time when equitable distribution was not a part of our law.

54 C.J.S., Lis Pendens, § 11 states at page 100:

Under some authorities, the doctrine of lis pendens has been held to apply in dissolution of marriage cases provided the property sought to be affected is described with particularity in the pleadings. Under other authorities, it has been held that injunction and not lis pendens is the appropriate remedy to prevent further transfers of disputed property, but it has also been held that a spouse may choose between either filing a notice of lis pendens, or seeking a temporary injunction. A notice of divorce action pending in a state other than the one in which the property is located, will nonetheless be valid when filed in the county in which the property is situated, as will a notice filed in a different county of the same state. [at 100]

The New York courts have taken conflicting positions regarding the use of a lis pendens in a matrimonial action. In Pape v. Pape, 39 Misc. 2d 268, 240 N.Y.S. 2d 501 (Sup.Ct.1963), defendant-husband brought an action to cancel a lis pendens which his wife had filed against his property and to cancel an instrument entitled a "declaration of intention" which his wife had recorded. The court held that the declaration of intention executed solely by the wife and referring to an agreement between the husband and wife that certain property was not to be transferred until their marital problems were solved could not serve as a basis to support the filing of a lis pendens where

the agreement had not been recorded or submitted to the court. The declaration of intention and lis pendens were ordered to be cancelled.

A review of the court's holding would seem to indicate that had the declaration of intention been recorded, it could have served as a basis of support for the filing of a lis pendens and it would thus appear that based on this decision under New York law a lis pendens is an appropriate remedy to a party seeking to make a claim as to certain marital property.

The New York courts, however, in Gross v. Gross, 114 A.D. 2d 1002, 495 N.Y.S. 2d 441 (1985) took the opposite view. In Gross an appeal was filed in a matrimonial action by plaintiff-wife from various parts of an order entered by the Supreme Court including an order that vacated a notice of pendency filed by the wife. The court, in commenting upon the notice of pendency filed against defendant-husband's residency held that same was properly vacated and stated:

The filing of a notice of pendency is an extraordinary privilege available only if the judgment demanded would affect the title to, or the possession, use or enjoyment of real property. (Chambi v. Navarro, Vives & Cia, 95 A.D. 2d 667 [463 N.Y.S. 2d 218]; Doar v. Kozick, 87 A.D. 2d 603, 448 N.Y.S. 2d 56; CPLR 6501; see 5303 Realty Corp. v. O & Y Equity Corp., 64 N.Y. 2d 313, 486 N.Y.S. 2d 877, 476 N.E. 2d 276). The fact that plaintiff may be entitled to an equitable distribution with regard to the residence does not give rise to such a privilege. Plaintiff's remedy to prevent any alleged fraudulent transfers was to seek an injunction against any further transfers of the disputed property. (See Chachkes v. Chachkes, 107 A.2d 786, 787, supra, 484 N.Y.S. 2d 619; Domestic Relations Law § 234). In fact, such an injunction was granted. [495 N.Y.S. 2d at 443]

In Atlas Garage And Custom Builders, Inc., v. Joan C. Hurley, 167 Conn. 248, 355 A.2d 286 (1974) the judgment creditor of defendant's former husband brought an action against the former wife to foreclose a judgment lien on real estate which formerly belonged to the former husband and which was passed to the former wife by judgment of divorce. The former wife filed a counter-claim alleging that the creditor's attachment and judgment lien should be removed as a cloud on her title.

The lower court entered a judgment for the creditor on the complaint and the counter-claim and the former wife appealed. The Supreme Court held that a certificate of attachment could not be used as a notice of lis pendens and that the creditor's judgment related back to its prior attachment which occurred after the wife's attachment, and that where the wife was allowed to attach her husband's real property to secure an alimony award and the court made an alimony award of $1 a year and granted the wife other relief by passing title to the real property to her, the title vested in her on the date of the judgment and did not relate back to the date of her attachment and her claim was therefore subordinate to that of the creditor.

While the above case was decided based upon an attachment, the use of lis pendens was discussed although the court specifically held that a certificate of attachment cannot be used as a notice of lis pendens. The court stated:

As to the commencement of a divorce action, our civil procedure makes no provision for imposing a lis pendens but allows the making of an attachment whenever alimony is claimed. [167 Conn. at 252, 355 A.2d 286]

In support of her position, defendant-former wife had cited Germania National Bank v. Duncan, 62 Okla. 144, 161 P. 1077 (1916) and Graham v. Pepple, 129 Kan. 735, 284 P. 394 (1930) in which cases divorce actions had been instituted and neither of the wives attached their husband's real estate. The court in each case held that the institution of the divorce action created a lis pendens upon the realty of the husband thereby giving the wife a claim superior to claims of creditors made subsequent to the commencement of the divorce action.

The court specifically held that such is not the law in Connecticut and defendant had failed to demonstrate otherwise. The court then stated:

The defendant here, having commenced her divorce action by an attachment of her husband's realty, cannot claim at the same time, as she does in her brief, that this also constitutes a lis pendens. As we have already shown, these two proceedings are separate and distinct, and by statute are intended to serve different purposes. [167 Conn. at 254, 355 A.2d 286]

Again, it must be noted that the claim in the Connecticut case was for alimony 0 and not for equitable distribution.

In Jones v. Jones, 249 Miss. 322, 161 So. 2d 640 (Sup.Ct.1964), which was an action to set aside a deed by which plaintiff's divorced husband had conveyed an undivided interest in realty to his mother, or in the alternative, to subject such interest in realty to a lien of judgment against him, the court referred to the Mississippi lis pendens statute which, in pertinent part, provides:

When any person shall begin a suit in any court . . . to enforce a lien upon, right to, or interest in, any real estate . . . such person shall file with the clerk of the Chancery Court of each county where the real estate, or any part thereof, is situated, a notice containing the names of all the parties to the suit, a description of the real estate, and a brief statement of the ...


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