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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...