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Mitchell v. Oksienik

September 2, 2005

LORI MITCHELL, PLAINTIFF-RESPONDENT,
v.
RICHARD OKSIENIK, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, FV-19-000084-98.

The opinion of the court was delivered by: Kestin, P.J.A.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: October 13, 2004

Before Judges Kestin, Lefelt and Fuentes.

Defendant, Richard Oksienik, appeals from an order entered by the trial court on October 28, 2003, in a proceeding initiated under the Prevention of Domestic Violence Act of 1991 (the Act), N.J.S.A. 2C:25-17 to -35. The matter began with the filing of the complaint on July 28, 1997, in which plaintiff, Lori Mitchell, sought an order under the Act.*fn1

The amended final restraining order of October 17, 1997 provided, inter alia, that plaintiff was granted exclusive possession of the parties' home until December 1, 1997, and that she was to vacate on December 1, after which defendant was to have possession of the home. The issues before us in this appeal stem from the trial court's eventual order, on October 28, 2003, that the property be sold and the net proceeds divided equally between the parties. Defendant challenges both the court's authority to make that order under the aegis of the Act, i.e., to determine whether and how the parties' property should be divided; and the distributive result the court reached in determining the quantum of each party's entitlement.

The parties were unmarried. They had resided together since December 1986, and two children were born of the relationship, in 1990 and 1995. Both parties testified at the plenary hearing leading to the entry of the October 28, 2003 order that they had maintained joint bank accounts and had made all family and personal decisions mutually, as though they were married.

The parties had, together, located a tract of land to purchase. The transaction was completed on July 11, 1996, for a price of $39,000. The money for the purchase came from the parties' joint savings account. Title to the land was taken in defendant's name alone. Shortly thereafter, the parties constructed a modular home on the property at a cost of $120,000. They moved into the home on December 10, 1996. On the same date, defendant executed a $117,000 mortgage. According to both parties, plaintiff's parents loaned them $9,000 toward the down payment and, eventually, some $40,000.*fn2

In mid-1997, the parties encountered serious problems in their relationship. This domestic violence proceeding and the parties' separation ensued.

A number of orders were entered in the more than six-year period between the commencement of the matter and its conclusion at the trial level. Most of the provisions in those orders dealt with the subject of child support and related issues. Questions over disposition of the home arose as early as October 1997, however. In an affidavit dated October 14, 1997, defendant asserted a mortgage arrearage and an inability to carry the home in the then-prevailing circumstances. He stated: "[I]t will be necessary for me to either sell the home or, alternatively, rent out the same at an amount sufficient to carry the mortgage costs." He alleged, further, that since the time of the purchase he, alone, had carried the costs associated with the mortgage, maintenance and repair.

Eventually, the issues of disposition of the home and division of the proceeds became the focus of the trial court's inquiry. Those issues were tried in a plenary hearing on October 28, 2003. Judge Farber heard the testimony of both parties and two other witnesses. He stated his findings and conclusions in an oral opinion at the close of the plenary hearing and entered a detailed order on the same day. He found "that the parties had a partnership" that was "a relationship tantamount to marriage."

[T]hese two people went forward as any married couple goes forward. They had two children.

They decided to buy a house together. They purchased a house together, similar to married couples. Very often because one of the people in a marriage has credit problems, . . . there are a variety of reasons that one of the two will not show up on mortgage documents, because you can get better interest rates. You might run into problems with ...


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