On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-000539-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Plaintiff, Angelo T. Crincoli, appeals from one provision in the Supplemental Dual Judgment of Divorce entered on October 10, 2006. The judgment consists of twenty-eight pages and incorporates the terms of a comprehensive Property Settlement Agreement (PSA) containing sixty-nine numbered paragraphs. When the parties and their counsel came before the court on July 20, 2006, after extensive negotiations, the attorneys placed the terms of the PSA on the record, subject to the understanding that the terms would be memorialized in a written document. Judge Brennan laid out the "ground rules," stating that any discrepancy between the proposed written document and the oral statements on the record would be resolved by giving precedence to the oral statements on the record, and "[i]f there is a difference of opinion as to what should be in the property settlement agreement and the record is silent on that, that question will have to be resolved at some later date through some other court proceeding."
There was no discussion on the record about division of personal property. Defendant's attorney prepared the draft judgment and submitted it to the court, with a copy to counsel, under the five-day rule. See R. 4:42-1(c). The proposed form included paragraph 33, which is the sole provision that is the subject of this appeal. It stated:
Personal Property. During the marriage, the parties acquired numerous items of personal property including, but not limited to, household furnishings, appliances and personal effects. All furniture and personal property shall be divided between the parties pursuant to their mutual Agreement. The Husband shall provide the Wife with a list of the items he wishes to remove from the marital home within thirty (30) days. The parties acknowledge that the Wife owned a number of furnishings and furniture prior to the marriage, which she shall be entitled to retain.
Plaintiff's counsel responded with a letter to the court, copied to defendant's counsel, objecting to ten paragraphs in the proposed form, including paragraph 33. Plaintiff's counsel set forth his proposed version of each of the ten paragraphs. The proposed paragraph 33 was identical in all respects to that initially submitted by defendant's counsel, but added the following to the last sentence:
[A]nd the parties acknowledge that the Husband shall be entitled to retain his personal items, golf clubs, clothing, jewelry, and all of his tools and landscaping equipment, including, but not limited to, the Bobcat, Snapper lawnmower, backpack blower and weedwacker.
The parties resolved most of the disputed paragraphs. With respect to paragraph 33, however, defendant's counsel responded that there was no agreement that plaintiff would retain golf clubs, clothing, jewelry and his landscaping equipment. Plaintiff's counsel replied. He did not dispute that there was no such agreement that the husband would retain these items but continued to object to the proposed paragraph 33 because "[i]t was not agreed that the Wife would have the sole authority to determine which items of personal property were retained by the Husband."
Judge Brennan resolved the disputes regarding the three paragraphs upon which agreement could not be reached, including paragraph 33, by his letter to both counsel of September 18, 2006. The judge stated, "There is a dispute as to the form of judgment and I will now resolve it." The judge stated that he considered the exchange of letters regarding the disputed paragraphs and carefully reviewed the transcript of the proceeding at which the PSA was placed on the record and the positions expressed by each side. He determined that paragraph 33 would remain in the form initially submitted by defendant's counsel.
Plaintiff appeals, contending that the judge erred in this ruling. Plaintiff argues that the judge's decision was unsupported by the relevant and credible evidence, that it violated the law of the case, that the oral record takes precedence over a written judgment in the case of discrepancy, and that principles of equity and fairness warrant reversal of the judge's decision. We reject these arguments and affirm.
Plaintiff suggests that this matter should be remanded to the court for a full hearing on the issue of personal property. However, the "ground rules" by which both parties and the court agreed to proceed provided that if a term was not mentioned on the record it would later be resolved "through some other court proceeding." In this case, that subsequent proceeding consisted of resolution of this disputed term through the process of the five-day rule, a procedure in which both parties willingly, and we might add, sensibly, participated. There was no need then and there is no need now for a full hearing on this issue. Plaintiff did not request a hearing in the trial court regarding paragraph 33, and he has relinquished his right to now seek that relief. In any event, that relief would not be forthcoming, as we find no mistaken exercise of ...