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Cannata-Nowell v. Nowell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Rather, in the order, he provided a mechanism for the final appraisal, listing and sale of the Property.

On appeal, plaintiff raises several points for our consideration.

POINT I

AFTER PAYING THE IMPLICITLY AGREED UPON AMOUNT FOR 12 YEARS, [DEFENDANT] ASSERTED HE HAD PAID ENOUGH AND STOPPED PAYING, MATERIALLY BREACHING THE CONTRACT AND VOIDING IT.

POINT II

PARTITITON IS AN INHERENTLY EQUITABLE REMEDY, AND SHOULD BE DENIED WHEN IT WILL LEAD TO INEQUITABLE RESULTS.

POINT III

THE TRIAL COURT'S DETERMINATIONS OF CREDIBILITY ARE WHOLLY UNFOUNDED AND ARE NOT SUPPORTED BY THE RECORD. FURTHERMORE, THE TRIAL JUDGE'S REASONING IS NOT STATED IN HIS OPINION.

POINT IV

PLAINTIFF'S EXPERT REAL ESTATE VALUATION TESTIMONY IS NOT PERMISSIBLE BECAUSE SHE IS NOT AN EXPERT ON PROPERTY VALUE AS SHE IS NOT A CERTIFIED APPRAISER.

POINT V

EVEN IF THE TRIAL COURT'S DECISION IS UPHELD, THE TRIAL COURT'S CALCULATIONS ARE INACCURATE BECAUSE IT [SIC] DOES NOT TAKE ALL RELEVANT EXPENSES INTO ACCOUNT.

We have carefully considered these contentions in light of the record and applicable legal standards. We affirm.

It is undisputed that the parties owned the property as tenants in common with each owning a "determinable undivided one-half interest subject to partition or execution sale." Vander Weert v. Vander Weert, 304 N.J. Super. 339, 346 (App. Div. 1997). Absent an express agreement to the contrary, the right to partition among tenants in common has been held to be absolute, though, in the context of former spouses' interests in the familial home, subject to the court's inherent equitable powers. Newman v. Chase, 70 N.J. 254, 262-64 (1976). "Among the remedies available on partition -- where other modes of relief are not practical -- is a forced sale of the property and division of the net proceeds between the parties." Mitchell v. Oksienik, 380 N.J. Super. 119, 128 (App. Div. 2005).

Plaintiff argues that defendant unilaterally repudiated the property settlement agreement when he admittedly failed to continue making his monthly payments of $600 after December 2002. She contends this material breach of the agreement rendered it void.

Although the motion judge did not make any specific findings in this regard, we conclude the record adequately supports a finding that defendant invoked the provision of the agreement which permitted either party to sell the property, subject only to the other's right of first refusal. Defendant rebuffed plaintiff's attempt to obtain a home equity line of credit on the property; his demand that plaintiff purchase his share or refinance on her own was tantamount to his exercising his right under the agreement to sell the property.

Moreover, as the judge's determination of the credits due each side amply demonstrates, defendant had contributed significantly more than plaintiff had to the maintenance of the property from 1991 through 2002. Therefore, defendant's decision to stop paying the previously agreed upon $600 per month was not a breach of the agreement's express terms that required the parties to equally share the costs of maintaining the property.

Lastly, even assuming plaintiff is correct and defendant breached the agreement rendering it void, we fail to see the importance of such a conclusion. As we already noted, defendant, as tenant in common, had the right to demand partition of the property absent an express agreement to the contrary. Plaintiff has failed to demonstrate how rendering the agreement void would otherwise change this basic premise.

Plaintiff next argues that the partition and forced sale of the property would lead to inequitable results. N.J.S.A. 2A: 56-2 provides,

The superior court may, in an action for the partition of real estate direct the sale thereof if it appears that a partition thereof cannot be made without great prejudice to the owners, or persons interested therein.

In granting such relief, a court "does not act ministerially and in obedience to the call of those who have a right to the partition," but rather must "administer[] its relief . . . according to its own notions of general justice and equity between the parties." Newman, supra, 70 N.J. at 263.

Plaintiff argues the result here is inequitable because she is in a relatively weaker financial position than defendant, has lived in the house for several decades and has an attachment to it and the surrounding community, and her relocation would likely be further from her place of employment.

These arguments fail to address the fact that the express agreement of the parties permitted either one to sell the property without the other's permission. In addition, although plaintiff contends she cannot financially purchase the defendant's share and remain in the property, that has not been conclusively established since the actual market value of the property has yet to be determined. Lastly, defendant has paid significant sums of money to maintain the property for more than a decade without enjoying its use. We see no basis to overturn the motion judge's determination regarding the relative equities of the situation.

Turning to the balance of plaintiff's contentions, we begin by noting that the scope of our review of a judgment entered after a plenary evidential hearing is quite limited. Basically, the findings and conclusions of the motion judge should not be disturbed if they are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).

Applying this standard to the record before us, we conclude that the arguments raised by plaintiff in Points III, IV and V are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E). We add only these brief comments.

Plaintiff's contention in Point IV that defendant's real estate expert was unqualified to render her opinion is of no moment since the judge never determined the value of the property. Therefore, even if the testimony was improperly admitted, it did not matter. Plaintiff's contention in Point V, that the judge did not consider additional expenses, such as utilities and insurance, in calculating each party's credits is also unpersuasive. In Esteves v. Esteves, 341 N.J. Super. 197 (App. Div. 2001), we held that when

[t]he tenant who had been in sole possession of the property demands contribution toward operating and maintenance expenses from his co-owner, fairness and equity dictate that the one seeking that contribution allow a corresponding credit for the value of his sole occupancy of the premises. To reject such a credit and nonetheless require a contribution to operating and maintenance expenses from someone who . . . had enjoyed none of the benefits of occupancy would be patently unfair. [Id. at 202.]

Though not expressly stated by the judge, we assume when he denied defendant credits for plaintiff's "fair market rental" of the property over the years, he likewise determined plaintiff's "operating and maintenance" expenses did not entitle her to a credit, or that the two cancelled each other out. We see no error in this regard.

Affirmed.


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