July 20, 2007
RONA LOWY, PLAINTIFF-RESPONDENT,
MARC LOWY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FM-16-1420-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2007
Before Judges Seltzer and C.L. Miniman.
Defendant Marc Lowy ("the husband") appeals from portions of three orders entered on September 9, 2005 (¶ 1), February 8, 2006 (¶ 1), and April 7, 2006 (¶¶ 1 & 3), following our remand in Lowy v. Lowy, No. A-1063-04 (App. Div. May 11, 2005). Paragraph 1 of the September 9, 2005, order quashed subpoenas served by the husband on Cingular Wireless and MCI Telecommunications.*fn1 Paragraph 1 of the February 8, 2006, order, which reflected a settlement reached by the parties, required plaintiff Rona Lowy ("the wife") to pay the husband $118,000 and required the husband to execute and deliver a deed releasing all of his right, title and interest to the former marital premises in accordance with the decision of a Bais Din, a rabbinical court. Paragraph 1 of the April 7, 2006, order denied the husband's application to set aside the parties' February 8, 2006, settlement agreement, and paragraph 3 awarded counsel fees and costs to the wife in the amount of $1500.
The facts of this matter were explicated in our prior opinion and we do not repeat them here. Id. at 2-4. We remanded this matter to the Family Part judge for a determination respecting the enforceability of the rabbinical decision in general and in particular with respect to whether portions of the decision were in the best interests of the children. Id. at 7-11.
After the remand, the parties engaged in discovery and trial of the remanded issues began on February 6, 2006, and continued the next day.*fn2 During the proceedings, the judge addressed the buyout of the marital home. The wife's counsel stated on the record that, pursuant to the rabbinical court's decision, the husband was to pay the wife $34,247 in August 2004 and from that sum, $23,000 would be escrowed until the parties obtained a religious divorce.*fn3
The parties then discussed the appraised value of the marital home in open court. The husband's appraiser had valued the house at $345,000 and the husband asserted that it had increased in value since the appraisal by fifteen percent, to approximately $396,000, whereas the wife's attorney argued that it had increased only by twelve percent, to roughly $386,000. After some discussion, the wife offered to agree to an appraised value of $390,000. After deduction of the $86,000 mortgage, each party's interest in the net equity would then be $152,000. From the husband's half the $34,247 awarded in the arbitration would be deducted, leaving him with a net of $117,753, which the wife offered to round up to $118,000. The judge stated "Mr. Lowy, $118,000 is the figure. If you're satisfied, that issue is gone." The husband replied, "If the Court wants to put in an order I can live with ----." The judge again asked "Are you satisfied with that figure?" After the husband raised an issue with respect to the funds to be escrowed, he asked when the $118,000 would be paid, and the wife agreed to pay within thirty days. After some further discussion about the religious divorce, the judge suggested that he include language in the order requiring the parties to comply with the arbitration decision respecting the religious divorce and the escrow of monies, to which neither party objected. The judge commented, "All right. . . . [N]ow we know the 118 is taken care of. That's out of the way." Neither party asserted that there was any disagreement on this issue.
The judge then attended to the issues of child support, summer camp, and private school tuition, and modified the arbitration decision respecting these issues. Because no expert proofs were presented by the husband respecting the issue of custody, the parties agreed that a review of custody could abide a future application. The court required each party to pay their own counsel fees, consistent with the arbitral award. At the end of the proceeding, the judge asked the husband, "Are you okay? If you're okay, then I'm going to wrap it up and . . . I'll dictate an order and it will be in the mail tomorrow for everybody." The husband replied, "I believe everything I heard . . . I can live with it." The following day, an order was entered stating, among other things, that the wife would pay the husband $118,000 for the equity of the home and the husband would pay $300 per month in child support plus $100 per month toward medical expenses.
On the same day that the order was entered, the husband wrote to the judge asking him to consider that he did not have an opportunity to fully present his proofs respecting misconduct of the arbitrators, an issue remanded by us for determination, and contended that he "did not in fact consent to the amount offered by the Plaintiff's attorney for which I am to concede the equity in our marital home," complaining that the value was $7000 too low, and asserting that he was contesting the validity of the $34,000 in credits given to the wife by the arbitrators. He claimed that he did not have an opportunity to present his proofs as to the value of the home and he was prepared to bring in an expert witness. The judge replied that these issues were not raised when he inquired the previous day if there were any other issues to decide and, regarding "the home buyout, that too was adjusted as a result of the discussions held in Court and on the record after hearing both your position and your former wife's position." He concluded that "this matter has now been completed and there is no further issue pending before the Court."
On February 22, 2006, the husband filed a notice of motion asking the court to stay the buyout of the marital home, modify the buyout to require the wife to pay the husband 50% of the equity in the home, and to determine that the rabbinic court did not have any further jurisdiction over the parties. The husband asserted that he was contesting the $34,280 granted to the wife by the arbitrators because it was obtained by error or misconduct. He further asserted that he was not given an opportunity during arbitration to submit his financial records to establish the amount he had contributed to the marital home and that $11,175 was granted to the wife without any explanation of the reasons for doing so. Thus, he sought relief from the credits deducted from his share of the $390,000 value of the home.
On March 16, 2006, the wife cross-moved for enforcement of litigant's rights and other relief. In particular, she sought a declaration that the husband was in violation of litigant's rights by refusing to execute the documents necessary to transfer title of the marital home to her. She sought the appointment of an attorney-in-fact for the husband to execute the title documents and an award of counsel fees to be deducted from the sums due the husband. In her certification, she averred that the entire matter had been settled, that the husband was satisfied with the buyout of the marital home, which was more than she wanted to pay, and that the amount of the child support was less than her children were entitled to receive.
After hearing oral argument on April 7, 2006, the Family Part judge placed his decision on the record. He rejected the request for a determination that the arbitrators had no further jurisdiction on the ground that it was not properly before him on the remand from us. He then found,
I listened to what the defendant said. I frankly disagree with him. He has a way of twisting the facts a little bit to his own satisfaction. He is a very smart individual and knows how to apply what he feels is right, but sometimes he plays the ["]I don't understand rule,["] but that's far from the truth. He understand[s] exactly what's happening here and has understood from day one, and did a very adequate job representing himself as a lay person.
In any event, what [the wife's counsel] says is exactly what happened.
The fact of the matter is the record is clear, and the transcript if somebody wants to listen to is clear what happened. There were extensive negotiations and discussions between the three of you on the second day. . . . I was involved, and some were sent back and forth to help you move along.
And when it came time to put it on the record there was representations similar to what [the wife's counsel] said today as to how you got to the figures, what adjustments were made. And in fact counsel is correct. The value price on that property was the higher value because her client wanted the case to be over with and she was willing to make certain compromises, which were done.
So for you [to] take the position that you lost money is wrong. . . . [T]here was discussion on the value of that property. Even as we were putting it on the record I think, as I recall, it was discussed even further at that point. And you were asked many times . . . during the course of putting the settlement on the record whether you understood, whether anybody was forcing you to go through it, and so . . . forth. So you fully understood the finality, that the case was over. All the issues were resolved. That was the point of the settlement. So that there was nothing left to be done.
There was no reason to continue any further. You had it settled, all the issues that were brought to this Court as a result of the Appellate Division remand. There was nothing left to be done, . . . contrary to your position. And [the wife's counsel] is exactly right in everything she said today, absolutely correct. It was negotiated; it was agreed upon. There were compromises made just like any other settlement that ever takes place in a courtroom.
So for you to stand here and tell me you expected to come back the next day, no way could you possibly expect . . . that. I haven't seen the transcript, but I know specifically when I asked these questions in these cases, and I know specifically I made it clear that you understand what's happening. He could have continued, whether you've given up that right and so on and so forth.
But the end result is the matter was settled on that day. As far as I'm concerned that settlement is binding and I'm going to enforce it. I'm denying your application to modify the dollars. There's no basis to modify the dollars. If you wanted to do a voluntary between the two of you I won't interfere. But as far as I'm concerned the language placed on the record on that day in that judgment is the settlement and that is it. I am not changing it, subject to modification under [Lepis] or anything else, but not the equitable distribution. It will not be changed. The law makes that clear.
In addition to denying the husband's application, the judge ordered the husband to pay $1500 in counsel fees.
The husband presents the following arguments for our consideration:
I. TRIAL COURT ERRED BY DENYING DEFENDANT'S DUE PROCESS RIGHTS IN DISTRIBUTION OF THE FORMER MARITAL HOME.
A. Trial Court Erred by Failing to Obtain a Valid Consent Order for the Purchase of the Marital Home.
B. Trial Court Erred by Not Complying with the Arbitration Decision in Regard to Purchase of the Marital Home.
II. TRIAL COURT ERRED BY NOT COMPLYING WITH THE ARBITRATION DECISION IN REGARD TO COUNSEL FEES.
III. TRIAL COURT ERRED BY FAILING TO ISSUE FINDINGS OF FACT AND CONCLUSIONS OF LAW SUBSEQUENT TO THE TRIAL.
IV. IF ANY ASPECT OF THIS MATTER IS REVERSED AND REMANDED, IT SHOULD BE HEARD BY A DIFFERENT JUDGE.
After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented the husband are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on April 7, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). We add the following.
The public policy of New Jersey generally favors the enforcement of matrimonial agreements, so long as they are fair and equitable. Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). This is because such agreements "are essentially consensual and voluntary." Ibid. For a consent order to be valid, there must be consent of both parties and this consent must be knowing and informed. Cmty. Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 226 (1998). Further, "[t]here must be the proverbial 'meeting of the minds.'" Ibid.
We are required to give deference to the findings of fact of the trial court, so long as they are supported by credible evidence in the record. State v. Gomez, 341 N.J. Super. 560, 577 (App. Div.), certif. denied, 170 N.J. 86 (2001). There is more than adequate evidence to support the Family Part judge's determination that the husband did assent to the essential terms of the February 8, 2006, order, which settled or determined all of the issues the husband wished to press on remand from us.