On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-11647-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically on November 15, 2007
Before Judges Stern and C.L. Miniman.
Following a Sheriff's sale incident to plaintiff bank's complaint to foreclose a mortgage, the Chancery Division entered an order on November 17, 2006 providing that the surplus funds be awarded to the United States of America. Thereafter, defendant Yi's wife applied to receive one-half of the surplus funds.*fn1 By order entered on February 2, 2007 the Chancery Division denied the motion for reasons stated on the record that day by Judge Robert P. Contillo. Appellant claims that she is entitled to one-half of the surplus from the sale because the United States' tax lien was only against her husband and it has no entitlement to her share of the proceeds.
Appellant asserts that because her husband "is the sole debtor on federal tax liens assessed on the marital property, his debt should be levied exclusively on his share of the property, while the wife's equitable share remains hers alone" and that only his share of the surplus funds "should be used to satisfy his debts." She also argues that "as a matter of public policy a spouse should not be forced to file for divorce to preserve her equitable share of property acquired during the marriage" and that "the federal tax lien should be enforceable only against the husband's share of the property because he solely incurred the tax debt." Appellant is seeking one-half of the surplus funds because she was married to the defendant at the time the property was acquired, she is still married to him, she lived in the home which was the marital premises, and argues the tax lien should be deemed to apply only against his share of the property.
Appellant's application was filed after the United States made its uncontested application for the surplus funds and the November 17, 2006 order was entered.*fn2 In any event, there is no dispute that appellant was not on the title to the premises and was not on the mortgage or note. Defendant Yi was the sole title holder and mortgagor.
We affirm the order substantially for the reasons expressed in Judge Contillo's oral opinion of February 2, 2007. We add the following.
Before us, appellant asserts rights under N.J.S.A. 3B:28-3, a statute not cited to the trial court or before us until her reply brief was filed.*fn3 That statute provides in part:
During life every married individual shall be entitled to joint possession with his spouse of any real property which they occupy jointly as their principal matrimonial residence and to which neither dower nor curtsey applies. One who acquires an estate or interest in real property from an individual whose spouse is entitled to joint possession thereof does so subject to such right of possession, unless such right of possession has been released, extinguished or subordinated by such spouse or has been terminated by order or judgment of a court of competent jurisdiction or otherwise.
The problem with appellant's argument is that the record does not support it. We have reviewed appellant's certification "in support of her motion to recover one-half of the proceeds from the foreclosure sale" and her "reply certification." She certified that the tax lien was "solely in connection with [her] husband's business" and "did not apply to" her, and that she was therefore "entitled to a one-half spousal beneficial interest from the net proceeds of the sale of the Property (after Hudson City Saving's first mortgage is satisfied) . . . ." She also certified that she was married to Yi in Korea in 1975 and "never divorced." She further certified:
3. In 1993, when my husband was purchasing the property at issue in this action, his then attorney suggested to him that he list himself as unmarried because I was, at that time, still in Korea and unable to sign any documentation with him. His then attorney had told him that it was preferable to list himself as "unmarried" so as not to have complications regarding the registration of the house.
4. My husband agreed at the time because it was his understanding that it reflected his not being married in the United States, because he was married in Korea.
5. In conclusion, there can be no issue or no doubt regarding my marital status: I have been continuously married for 30 ...