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Pelow v. Pelow

November 8, 1996


Hayser, J.t.c., temporarily assigned

The opinion of the court was delivered by: Hayser

HAYSER, J.T.C., temporarily assigned

The issue presented is whether the court may order, under the circumstances in this case, the sale, pendente lite, of real property held by the parties as tenants by the entirety. Resolution of this issue requires consideration as to the continued application of the holding in Grange v. Grange, 160 N.J. Super. 153, 388 A.2d 1335 (App. Div. 1978).

Plaintiff filed a complaint for divorce on March 13, 1996. Defendant filed an answer and counterclaim on May 15, 1996. In addition to other relief, each sought the equitable distribution of all property acquired during marriage, both real and personal.

On October 18, 1996, plaintiff filed a motion seeking, among other things, an order requiring defendant to assume sixty-one percent of the monthly mortgage, taxes and homeowner's insurance expenses for the marital residence. Defendant responded on October 30, 1996, by filing a cross-motion seeking, among other things, an order requiring the sale of the marital residence. Following a hearing on November 8, 1996, the court ordered, among other things, the immediate listing of the marital residence for sale.

Plaintiff argues that requiring the listing of the marital home for sale, pendente lite, and held by the parties as tenants by the entirety, is prohibited under the Grange decision. To the contrary, defendant argues that under the applicable statute, N.J.S.A. 2A:34-23, Grange itself, and subsequent decisions, such an order is permitted under the facts of this case.

I. The Precedential Value and Holding of Grange

It is beyond dispute that the principles of stare decisis bar a trial court from disobeying pronouncements of appellate courts. Reinauer Realty Corp. v. Paramus, 34 N.J. 406, 415, 169 A.2d 814 (1961), cited in State v. Williams, 194 N.J. Super. 590, 596, 477 A.2d 445 (Law Div. 1984). Moreover, the mere passage of time from an earlier appellate decision, without the undermining of the rationale of that decision by either the Appellate Division or the Supreme Court, is not a basis for determining that the earlier decision is no longer controlling. Haber v. Haber, 253 N.J. Super. 413, 417, 601 A.2d 1199 (App. Div. 1992). In other words, subsequent decisions of trial courts cannot by "mere force of chronological circumstances" overrule an earlier rule of law set down in an appellate opinion. State v. Turetsky, 78 N.J. Super. 203, 214, 188 A.2d 198 (App. Div. 1963).

Nevertheless, the precedential effect of an opinion depends upon what issue squarely presented the court intended to resolve, or, in other words, what the court did, and did not intend to decide. Feldman v. Lederle Laboratories, 125 N.J. 117, 132, 592 A.2d 1176 (1991). Therefore, we must determine the scope of the holding in Grange.

In Grange, the parties sought equitable distribution of their several marital properties. While the matter was pending, a foreclosure action was commenced as to one of the properties, which was unoccupied. As a result, plaintiff had requested the defendant's cooperation in achieving the sale of the property as a more suitable alternative. Defendant refused and the plaintiff filed a motion to compel the defendant to approve a sale.

Although the plaintiff had earlier claimed that he could not afford to continue to maintain three residences for the parties and pay pendente lite support to the defendant, the trial court only concluded at the motion hearing that for equitable distribution purposes, this unoccupied residence, a stated "bad investment," should be sold "to minimize losses." Grange, supra, 160 N.J. Super. at 155. Defendant, apparently, only questioned the sale on the issue of the sales price and whether it represented market value. *fn2 Id. at 156-57. Eventually the sale was formally ordered and an appeal resulted.

The Appellate Division stated that "the basic issue on appeal is whether in a matrimonial matter the court may make a pendente lite order relating to the equitable distribution of the marital assets and, more specifically, order the sale of the marital dwelling absent the consent of the parties." Id. at 157. While the court acknowledged the existence of the broad equitable powers provided to a trial court under N.J.S.A. 2A:34-23 to make "such orders as are necessary for the maintenance of the parties," it found that there existed "no statutory authority for pendente lite action of this kind in connection with equitable distribution." Id. at 158 (second emphasis added).

As a result, the appellate court concluded that under the cited statute providing for equitable distribution where a "judgment of divorce or divorce from bed and board is entered, . . . the [trial] court is without authority to order a predivorce distribution of a tenancy by the entirety." Id. (emphasis added). Finally, the court concluded that "such distribution would violate the very concept of a tenancy by the entirety and its attributes of ...

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