September 28, 2007
MARIANN TASCO, PLAINTIFF-APPELLANT,
JOSEPH TASCO, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, FM-12-2378-06H.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2007
Before Judges Weissbard and Gilroy.
Plaintiff Mariann Tasco appeals from a post-judgment order in her matrimonial proceeding against her former husband, defendant Joseph Tasco. We remand for an evidentiary hearing. Plaintiff and defendant were married on March 22, 1980. They were divorced on October 10, 2006. On that date the parties entered into a handwritten Property Settlement Agreement (PSA) which was incorporated into the Final Judgment of Divorce.
On December 29, 2006, plaintiff filed a motion seeking enforcement of various provisions of the PSA. Her first request was as follows:
Enforcing paragraph 5 of the Pendente Lite order dated August 23, 2006 as well as page 3 of the property settlement agreement dated October 10, 2006, requiring the defendant to pay all unreimbursed dental expenses on behalf of the plaintiff and 2 minor children of the marriage in the amount of $7,079.80 [minus $300.00 plaintiff agreed to pay as part of the property settlement agreement dated October 10, 2006] within 5 days of the hearing on this matter.
Concerning the dental bill, plaintiff certified as follows in support of her motion:
I was divorced from the defendant on October 10, 2006, the date for the ESP hearing. [Exhibit A] This agreement was somewhat hastily drafted so we could put this matter through as an uncontested divorce. There are several issues that have arisen, that I feel are either controlled by prior court orders that were entered in this case that the defendant has not complied with or need to be addressed with the language of the court drafted property settlement agreement [hereinafter referred to as PSA]. For example, at the time of the divorce, the defendant knew that our family dental bill from Resnick & Rosenfeld, DDS, LLC totaled $7,079.80. [Exhibit B] The PSA only refers to $1,200.00 of that bill. That figure was identified in defendant's ESP statement that listed all our credit card debts. As a part of the overall settlement, the defendant was to pay $900.00 and I was to contribute $300.00. I paid my share on December 11, 2006 by credit card. The defendant sent them a check for $900.00 and put a restriction on the check "O balance". [Exhibit C] The dentist will not cash the check because the actual bill is much higher. The defendant knew this and tried to pull a fast one by excluding all the charges for the restoration of my teeth in September, 2006. The bill covers dental treatment/services for the children as well as defendant and me. There were insurance adjustments and payments on the account that now leave a balance of $5,729.80. [Exhibit D] This bill was sent to the defendant before we were divorced at the ESP. I spoke to Pat from the dentist's office and she confirmed that Mr. Tasco was aware of the entire balance before we were divorced. Payment of this bill is actually governed by the Pendente Lite order dated August 23, 2006. [Exhibit E] Paragraph 5 of that order required the defendant to pay for all unreimbursed medical and dental expenses. The invoice clearly shows payments were being made by the defendant through September 14, 2006 and that the bills were being submitted to our dental insurance with Blue Cross and Blue Shield. [See page 2 of Exhibit B] I attach a letter from Resnick & Rosenfeld dated December 12, 2006 showing this work was not simply cosmetic as defendant claims. [Exhibit F]
In addition, we used list of debts provided by the defendant in his ESP statement that is also referred to in the PSA. Please note that the dental bill is listed as $1,200.00. That is what the defendant represented was owed at the time of the divorce. The defendant was obviously wrong. My attorney wrote to the defendant's attorney in an effort to resolve this and the defendant refuses to pay the dentist more than $900.00. [Exhibit G] The defendant says that I surreptitiously incurred cosmetic work on my teeth in September and he knew nothing about it. [Exhibit H letter from Meyertons dated November 17, 2006] This was dental work I desperately needed and the court would have ordered my husband to pay it. There was or is simply no other way to pay this. How does the defendant expect me to pay this?
In response, defendant certified as follows:
This matter came on for the Early Settlement Program on October 10, 2006 and through some negotiations to fine tune the recommendations of the panel, all of the issues were resolved and the divorce was entered, which incorporated the hand written Property Settlement Agreement prepared by Plaintiff's counsel. The only remaining item was the preparation of the formal Judgment For Divorce, which was to have been prepared by Mr. Rogoff.
Among the various issues to be considered at the ESP was payment of the outstanding dental bill. In the course of the negotiations, after having been before the panel, in the hallway outside the courtroom, plaintiff's counsel conferred with me, in the presence of my attorney, to specifically address the balance of the dental bill, and it was agreed that it was $1,200 and that I would be responsible for $900 and my former wife $300. On page 3 of the Property Settlement Agreement, in Mr. Rogoff's hand, it reads:
Dental -- H pays $900 -- W pays $300.
The Property Settlement Agreement was signed by the plaintiff and me, and attested to when the matter was placed upon the record.
On October 18, 2006 I personally went to the dentist's office with a copy of the Final Judgment of Divorce and delivered my check for $900 to satisfy my responsibility for the dental account.
Unbeknown to me, and presumably to Mr. Rogoff, was that only 25 days before our court appearance, my former wife surreptitiously ran up a $7,140. bill for cosmetic dentistry.
Evidently, my October 18, 2006 appearance at the dentist's office aroused concern, and on the same day, my attorney received a fax from Mr. Rogoff commencing:
I wanted to remind you that the dentist bill from Resnick & Rosenfeld, DDS, LLC has a balance of $7,079.80 as of October 16, 2006.
Upon receiving a copy of said letter (Exhibit "A") I was stunned. Mr. Rogoff confirmed the $1,200 was the balance of the dental bill, and its allocation and my former wife did also. She signed the agreement and attested to same under oath when the divorce was placed on the record.
My former wife obviously deliberately concealed the fact that she ran up a bill and withheld said information, knowing that had it been disclosed it would have affected other terms of the settlement.
My attorney, after discussing the content of Mr. Rogoff's letter, responded by letter dated October 23, 2006 (Exhibit "B").
It is my contention that I should not be responsible for any part of this dental bill.
The letters between the attorneys referenced in defendant's certification need not be set out at length. Plaintiff's counsel noted, in part:
The payment of this bill is controlled by paragraph 5 of the pendente lite order dated August 23, 2006 that obligates your client to pay all unreimbursed medical and dental on behalf of the plaintiff and the 2 children. Your client obviously knew of this bill before court since he had treatment on September 25, 2006 and the office advises that he received the bill. Your client was also making payments toward the bill. Since the bill for services rendered predates the judgment, your client is obligated to pay it. He has apparently told the dentist that he only has to pay $900.00. This is of course is not true.
Defendant's attorney replied, in part:
It is quite obvious that your client set out on a mission to run up as many bills and charges that she possibly could during the pendency of these divorce proceedings. The recent dental bill you sent me is a perfect example.
On the return date of the motion, the motion judge, who was the same judge who had signed the divorce judgment, entered an order which, with respect to the dental bill, stated:
Plaintiff's request that the court enforce Paragraph 5 of the Court's pendente lite Order of 8/23/06, as well as Page 3 of the parties' Property Settlement Agreement, requiring Defendant to pay all unreimbursed dental expenses on behalf of Plaintiff and the two minor children, in the amount of $7,089.80, minus the $300.00 that Plaintiff agreed to pay as part of the Property Settlement agreement, is GRANTED in PART and DENIED in PART. The Court's Order of 8/23/2006 is superseded by the parties' Property Settlement Agreement. The terms of the PSA state that Plaintiff is to pay $300.00, Defendant is to pay $900.00. Any amount beyond Defendant's $900.00 and Plaintiff's $300.00 obligation shall be paid by Plaintiff. Plaintiff is responsible for the costs of her own dental work. (M1)
Although plaintiff requested oral argument on her motion papers, the judge did not entertain argument and ruled on the written submissions. See R. 5:5-4(a).
On appeal, plaintiff argues that the judge erred in ruling that the PSA superseded the pre-judgment order of August 23, 2006, requiring defendant to pay all unreimbursed dental expenses.
Although plaintiff claims that the judge was wrong as a matter of law, we conclude that the matter must be remanded for a different reason. Whether the PSA expressed the full understanding of the parties concerning dental bills presented a question of fact that could not be resolved on competing certifications. The following factual questions are not answered: (1) Did defendant know of the outstanding dental bill when the parties signed the PSA, or did plaintiff conceal it from him?; and (2) What were the parties' intentions with respect to the PSA's dental provision? As we see it, the relevant issue is not whether the PSA governed, but what the PSA meant.
Thus, a full evidentiary hearing should be conducted to resolve the underlying factual issues. Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006) (citing Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982)). Once the court has determined the facts, the judge will be in a better position to resolve any legal issue as to whether the PSA or pre-judgment order governs the dispute.
Reversed and remanded. We do not retain jurisdiction.
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