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Cannata-Nowell v. Nowell

June 22, 2007

ANITA CANNATA-NOWELL, PLAINTIFF-APPELLANT,
v.
RICHARD CARLTON NOWELL, JR., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Family Part, Bergen County, Docket No. FM-02-5863-93.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2007

Before Judges Wefing, Yannotti and Messano.

Plaintiff Anita Cannata-Nowell appeals from a March 27, 2006, order in which the motion judge, following an extensive plenary hearing, ordered the sale of property owned by plaintiff and her ex-husband, defendant Richard Carlton Nowell, Jr. The order further provided that defendant would receive $18,706 in credits from the net proceeds of the sale with the balance being split evenly between the parties.

The issues presented arise in the context of defendant's post-judgment motion in aid of litigant's rights which sought an order: 1) appointing an appraiser to assign a fair market value to the property the parties owned at 20 Orchard Street, Ramsey (the property); 2) directing plaintiff to "pay [defendant] his net one-half interest in [the property]" or order "[the property] sold and the net proceeds divided between the parties"; and 3) awarding counsel fees. Plaintiff cross-moved seeking denial of defendant's motion and an award of counsel fees.

On March 23, 2005, the judge ordered an appraisal of the property and denied plaintiff's request for counsel fees. He determined the matter required further discovery and in the same order set forth a case-management schedule.*fn1 On June 14, 2005, the judge ordered a plenary hearing on the motion and cross-motion which ultimately took place over three days in January 2006.

The judge made the following factual findings. Prior to their June 24, 1979, marriage, the parties purchased the property, a 19th century farmhouse in need of some repair, for $49,000. Plaintiff and defendant made a down payment of $12,000, mortgaged the balance of the purchase price, and resided in the property together during the course of their marriage.

Sometime in September 1991, defendant left the marital home. On December 30, 1992, the parties executed a pro se property settlement agreement that was incorporated into their September 13, 1993 judgment of divorce. In pertinent part, the agreement provided Anita C. Nowell will reside at 20 Orchard Street, Ramsey, N.J. We are partners only in house and property at 20 Orchard Street, Ramsey, New Jersey. When and if one decides to sell the premises stated above, the other partner has first option to purchase same premises. All ongoing expense[s] will be shared equally. The house is strictly a business partnership.

From the time he left the property until December 2002, defendant paid $600 per month to plaintiff for the ongoing expenses of the property including mortgage payments and real estate taxes.

In December 2002, plaintiff informed defendant that she had paid off the balance of the mortgage on the property -- approximately $12,000. Plaintiff requested defendant co-sign a home equity line of credit, but he refused, and instead insisted plaintiff purchase his interest in the property or else sell it. She refused. Defendant then stopped paying the $600 per month that he had been forwarding to plaintiff over the many years since their separation.

During the plenary hearing, the judge heard testimony from both parties regarding the costs of repairs made to the property. Finding defendant more credible than plaintiff, the judge concluded that defendant, in addition to the monthly $600 payments, also contributed $7,483.30 toward the costs of repairs required at the property. While plaintiff claimed that she too had paid for repairs and improvements to the property, the judge concluded, in light of the lack of any documentary evidence supporting the claim, that plaintiff had spent only $5,796 on repairs. The judge determined that she paid all the real estate taxes over the years since the parties separated.

After totaling these various amounts and computing the difference, the judge determined defendant was entitled to a credit of $18,706. He also ordered the sale of the property with net proceeds split evenly after defendant's credits were reimbursed. Although the judge heard testimony from both parties' witnesses regarding the condition of the property and its value, he did not determine its fair market value. ...


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