On appeal from the Superior Court of New Jersey, Hunterdon County, Chancery Division, Family Part, Docket No. FM-10-153-99.
Before Judges Newman, Fall and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this matrimonial matter, plaintiff Cynthia Eaton appeals from an order of the Family Part denying her post-divorce motion to compel defendant James Grau to remove her name from the mortgage of a property formerly owned by both parties during their marriage. Defendant cross-appeals from that portion of the order denying his cross-motion for attorney fees. We affirm.
The salient facts are as follows. The parties were married on September 12, 1986 and separated in April 1997. On April 9, 1997, plaintiff signed a quit claim deed transferring her interest in the marital home, located at 1226 Route #31 in Lebanon, to defendant in exchange for his agreement to waive all rights to a home she was purchasing, also in Lebanon, with proceeds from a substantial inheritance. The deed was recorded on December 2, 1997.
Negotiations over the terms of the divorce ensued over the course of a number of months, with benefit of counsel on both sides. On January 19, 2000, the parties entered into a 41-page property settlement agreement (PSA) that was incorporated into the final judgment of divorce entered on January 31, 2000. At the uncontested divorce proceeding, the parties represented that they understood the PSA to embody their full intentions and to stand as"a fair and equitable settlement or resolution to the issues that flow from the marital relationship[.]" On this very score, the PSA itself contains an"incorporation" provision, at paragraph 9.5, which states:
The parties have incorporated into this Agreement their entire understanding, and no oral statements or prior written matter extrinsic to this Agreement shall have force or effect. This Agreement supersedes all contracts, agreements, commitments, and offers of every kind or nature, oral or written, at any time heretofore made by the parties. The purpose of this agreement is to regularize and crystallize the legal relations of the parties; and there are no representations, warranties, covenants or undertakings other than those expressly set forth in the framework of this Agreement.
The PSA, at paragraph 1.1, also confirmed the transfer of plaintiff's interest in the marital home to defendant which had already taken place by quit claim deed recorded on December 2, 1997. At the time of divorce, however, the marital residence was in foreclosure. Thus, the parties incorporated into the PSA a provision, at paragraph 2.2, requiring defendant to pay the mortgage arrears and bring the loan obligation current. The PSA also contained a provision, paragraph 1.2, addressing defendant's continuing financial obligation as to the mortgage on the former marital residence, requiring defendant to hold plaintiff harmless for obligations arising out of his ownership. Specifically, the provision states:
The parties agree that the Wife shall have no further liability with respect to the mortgage indebtedness on the Route 31 property, the repairs thereon or any other obligations whatsoever. The Husband shall continue to be fully and solely responsible for all future payments of the Note and Mortgage due on the property, together with real estate taxes and all other expenses related thereto. The Husband agrees to indemnify and hold the Wife harmless from any and all further obligations from ownership of the property including, but not limited to, future claims of creditors, state, federal and municipal taxing authorities and the first mortgagee which are related to the property previously conveyed by the Wife.
Significantly, for present purposes, the PSA does not require defendant to remove plaintiff's name from the mortgage. Neither does the PSA require defendant to refinance or sell the former marital residence, even though that eventuality was discussed during negotiations. According to defendant, because the marital home was in foreclosure at the time, refinancing was not a viable option. He has since certified that"[w]e discussed the fact that her name would continue to be on the mortgage and the fact that there was nothing I could do about it."
And finally, as to the relationship of the parties going forward, paragraph 9.6 of the PSA provides:
The parties agree that at all times hereinafter they may live separate and apart from each other at such place or places as he or she may from time to time choose or deem fit, and each party shall be free from interference, authority and control, direct or indirect, by the other as fully as if he or she were single and unmarried. Neither shall ...