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Whittlesey v. Whittlesey

July 12, 2007

FRANKLIN G. WHITTLESEY, PLAINTIFF-APPELLANT,
v.
SHERRY A. WHITTLESEY (N/K/A SHERRY A. FERRERA), DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Somerset County, No. FM 18-667-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 13, 2007

Before Judges Wefing and Weissbard.

Plaintiff appeals from a post-judgment order entered by the trial court. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

The parties were married in 1996 and divorced pursuant to a judgment of divorce entered on March 24, 2004. They had one child, a daughter now seven years of age. In conjunction with their divorce, the parties executed a property settlement agreement under which defendant received the marital residence in Raritan. Paragraph 11 of the property settlement agreement provided as follows:

Marital Residence: (A) The Wife shall have sole title and interest in the former marital residence located at 7 Brentwood Road, Raritan, New Jersey. Upon the execution of this Agreement, the Husband shall sign a Bargain and Sale deed, Affidavit of Title and Affidavit of Consideration transferring his interest in the residence to the Wife.

(B) The parties represent that the real estate is encumbered by one mortgage in the approximate amount of $140,000. The Wife shall have 120 days from the date of execution of this Agreement to refinance the mortgage on the marital residence and remove the Husband's name from any liability connected to same. The Husband agrees to pay off the line of credit within 30 days of the execution of this Agreement[;] the line of credit is currently a lien against the residence in the approximate amount of $68,000. The Husband shall be solely responsible for any monthly payments connected with the line of credit owed to Commerce Bank as well as any liability connected with the debt and shall indemnify and hold the Wife harmless with regard to same.

(C) When the Husband vacates the marital residence he shall have no further obligation to pay any expenses connected with the residence. At that time the Wife shall be solely responsible for the payment of the mortgage, taxes and carrying costs and shall indemnify and hold the Husband harmless with regard to same.

Title to the property was subsequently transferred to defendant's name alone.

In January 2006 defendant received from the Raritan Construction Official a Notice of Violation of the municipality's construction code, specifically installation without the requisite permits of a laundry facility and an electric line for a hot tub. According to the notice, she was subject to penalties and required to bring the property into compliance.

Based upon that notice, defendant filed a motion seeking to compel plaintiff pay these costs.*fn1 Defendant's certification in support of her motion recited that the work in question had been done while the couple were still married and resided together at the home. She also noted that they had during that time executed affidavits of title which stated that all necessary permits had been obtained for work performed. In addition, plaintiff had executed an affidavit of title in connection with the transfer to defendant of the marital residence as part of equitable distribution. That affidavit repeated that all necessary permits had been obtained. According to defendant, plaintiff had the work in question done without obtaining permits and had misstated the facts in these affidavits. Defendant maintained that as a result, plaintiff should be responsible for the cost of the necessary repairs and whatever penalties would be assessed.

Plaintiff opposed the motion. He recited in his certification that he did obtain the necessary permits for all work done while he resided in the house and that he had no knowledge of any work defendant might have had performed after the couple separated.

The trial court heard oral argument on the motion but did not take testimony. It directed that the parties share equally in the cost of repair and penalties. It also ...


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