January 3, 2008
LLOYD MORGAN, PLAINTIFF-RESPONDENT,
SHARON MORGAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-546-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 10, 2007
Before Judges S.L. Reisner and Baxter.
Defendant Sharon Morgan appeals from a December 8, 2006 post-judgment order that determined each party's share of proceeds from the sale of the former marital home. We affirm.
The parties were divorced on February 24, 2006. A property settlement agreement that was incorporated into the judgment of divorce resolved all issues other than term alimony and child support. After a three-day trial, the court issued a letter opinion on January 31, 2006, in which the court established the amounts plaintiff Lloyd Morgan was required to pay for alimony and child support. In October 2006, plaintiff filed a motion seeking the distribution of the proceeds of the sale of the marital home. Those proceeds were being held in escrow. Defendant cross-moved, and opposed plaintiff's debit and credit analysis and the proposed distribution figures he presented. She requested that the court accept her debit and credit analysis and distribution figures.
Oral argument was held on that motion on December 8, 2006, at which time the court entered an order accepting plaintiff's proposed distribution and rejecting defendant's. The court supplemented its oral ruling with a letter opinion of December 14, 2006. In that letter opinion, the judge explained his reasons for concluding that plaintiff's submission was "[the] more accurate of the two submissions." The judge reasoned:
It is the court's belief that [defendant's] application . . . raised issues that were not presented at trial, nor ordered by the court [in its February 24, 2006 order].
These [issues] may have been forgotten or omitted by [her] and [she] now sought additional credits for prior expenses.
Since this had not been raised previously, these claim[ed] deductions or the actual existence of a right to receive them [is] not permitted. . . . These claims or credits were nowhere in testimony or in any agreement made by the parties. [Accordingly,] the court is accepting the numbers presented by [plaintiff].
The parties submitted more than 100 hundred pages of documents to the trial judge prior to the December 8, 2006 motion hearing. We summarize the contentions of the parties and provide a brief description of the facts in order to place their contentions in context.
The parties were married on September 11, 1982. They resided together in the marital home located in South Orange, which they purchased in 1990 for $160,000. Plaintiff filed a complaint for divorce on August 31, 2004. A case management order was entered on February 24, 2005. At that time, the mortgage balance was approximately $39,000. In that February 24, 2005 case management order, the court ordered the parties to use the home equity line of credit to pay off the mortgage. The order also provided that no further withdrawals from the home equity line were to be made except by agreement of both parties, and if the parties were unable to agree, then they were directed to arrange a telephonic conference call with the judge.
A year later, on February 24, 2006, the judge directed the parties to list the marital home with Weichert Realtors and authorized Weichert to establish the listing price. The court also directed the parties to use the home equity loan to pay third and fourth quarter 2005 real estate taxes. The judge directed that the amount of those taxes would be charged against plaintiff's share of the proceeds of the sale of the marital home. The first quarter 2006 real estate taxes were also ordered to be paid from the home equity line of credit, with plaintiff being responsible for the January portion, and the parties sharing equal responsibility for the months of February and March 2006.
Ultimately, the marital home was sold for $445,000, which represented a sale price of $460,000 less a $15,000 "sellers concession." The net proceeds totaled $352,418. The marital estate also included a property in East Orange that plaintiff purchased in 1986 prior to the parties' marriage. Plaintiff operated a barbershop and hardware store on the first floor and rented the second floor to a residential tenant.
In his motion for distribution of the proceeds from the sale of the former marital home, plaintiff argued that there were various credits, price adjustments, and mortgage allocation amounts that had to be "sorted out." First, he asserted that the marital credit card debt as of August 31, 2004, should be paid, which consisted of $3,418 owed to Capital One and $13,428 owed to Bank One, for a total of $16,846. He also noted that the property settlement agreement specified that for the sum of $90,000, plaintiff would purchase from defendant her share of the East Orange property and her equitable interest in the hardware and barbershop business that he operated there.
After deducting the marital credit card debt of $16,846 and giving defendant a credit of $90,000 for her interest in the East Orange property, plaintiff contended that defendant should receive $260,299 from the net proceeds of the sale of the marital home and he should receive the balance of $75,274. In addition to that proposed distribution, plaintiff asserted that from defendant's proceeds, an amount of $926 should be paid to PSE&G for utility services provided at the marital home from February through May 2006 that defendant had failed to pay.
In her responsive certification of November 27, 2006, defendant argued that her share of the proceeds from the sale of the marital home should have been based on a sale price of $465,000, not $450,000. She also argued that she was entitled to various credits: (1) $2,475 to offset a withdrawal by plaintiff in that amount to pay the 2005 taxes on the East Orange property; (2) $2,526 to offset a withdrawal plaintiff made in that amount from the equity line to pay the fourth quarter property taxes on the marital home in South Orange; (3) $768 to reimburse her for first quarter taxes in 2006 on the South Orange property that plaintiff had withdrawn from the account even though payment of those taxes was his obligation pursuant to the final judgment of divorce; and (4) $1,062 attributable to PSE&G charges prior to February 1, 2006 that should have been plaintiff's sole obligation.
In addition to seeking those four credits, defendant also asserted that: (5) she was entitled to a sum greater than $90,000 for relinquishing her interest in the East Orange property and the hardware and barbershop businesses that plaintiff operated there. She contended that the $90,000 figure was erroneously predicated on the assumption that there were loans of $70,000 against the East Orange property, but plaintiff failed to provide documents to verify that $70,000 amount; (6) plaintiff improperly overvalued her 1992 Jeep when he claimed that her car had only 80,000 miles of use as of September 2005, when in reality its mileage at that time was 105,000, which resulted in a "fraudulent" overvaluation of her car in the amount of $2,000; (7) after the divorce complaint was filed, but before the judgment of divorce was entered, plaintiff stopped paying medical bills for the parties' children, one of whom was over the age of nineteen and no longer on the parties' medical policy, causing defendant to spend $1,082 on medical bills for that child; (8) prior to the entry of the judgment of divorce, plaintiff used income from the barbershop and hardware store to make his car payments, thereby entitling defendant to reimbursement for one-half of those amounts; and (9) during the parties' separation, she paid $124 to repair the washing machine and $130 for an emergency plumbing repair when a pipe broke, and was entitled to be reimbursed.
In her November 27, 2006 certification, defendant acknowledged withdrawing the sum of $9,460 from the line of credit on August 4, 2005, without the consent of plaintiff, thereby violating the portion of the February 24, 2005 order that prohibited withdrawals from the home equity line of credit unless agreed upon by both parties. Defendant claimed she was forced to pay all family bills after the divorce complaint was filed because plaintiff "arbitrarily stopped paying" those bills, thereby leaving her no alternative other than using the home equity loan in order "to survive."
The $9,460 that defendant withdrew consisted of the following:*fn1 $3,260 for groceries between January 2005 and October 2005; "back to school expenses" in the amount of $1,604 for the parties' nineteen-year old son who was returning to college; a credit card bill of $1,071 between February and September 2005; a lab and doctor bill of $112; a dryer repair costing $128; $75 to paint the bathroom ceiling; $616 for "alarm bills"; approximately $1,900 to repair her car; and $653 in expenses for the children, which included $300 for sneakers, $95 spent on the computer hard drive, $210 for a new cell phone, and $48 for a haircut. Defendant withdrew this $9,460 from the home equity line of credit more than four months prior to the granting of the dual judgment of divorce on February 24, 2006.
In response to defendant's November 27, 2006 certification, plaintiff argued that: defendant's share of the proceeds from the sale of the marital home was based upon a sale price of $465,000, not the $450,000 that defendant claimed; plaintiff paid the entire $2,475 real estate tax payment on the East Orange property without having sought any contribution from defendant; his proposed distribution reflected his obligation to pay for two of the three months of the first quarter 2006 real estate taxes for the South Orange property, as required by the February 24, 2006 court order; defendant's credit card debt of $2,433 was inadvertently omitted from plaintiff's proposed distribution, and he agreed to revise his proposed distribution chart to reflect the Chase credit card payment of $2,433.
Plaintiff further argued that: defendant's claim that she should receive more than the agreed-upon $90,000 for her share of the East Orange building and businesses "is baseless and not made in good faith" because the parties agreed upon the $90,000 figure in their Property Settlement Agreement that had been incorporated into the divorce judgment; defendant's claim that her car should be valued at less than $5,650 was not supported by any Kelley Blue Book verification; and plaintiff should not be responsible for paying defendant's bills "which she incurred after the divorce complaint was filed, but prior to the date of the divorce."
Plaintiff maintained that the only bills he was required to pay were those specified in the order of February 24, 2006, which required him to pay the "South Orange scavenger fees"*fn2 and utilities through January 31, 2006. He further maintained that after January 31, 2006, his obligation to his ex-wife was limited to weekly alimony and child support which "he has been faithfully paying through probation."
Accordingly, plaintiff urged the court to distribute the proceeds from the sale of the marital home as follows: $259,082 to defendant and $74,057 to himself. After considering the documents submitted by the parties and after oral argument on December 8, 2006, the judge accepted plaintiff's arguments and rejected defendant's. The judge then signed the December 8, 2006 order that is the subject of this appeal.
On appeal, defendant has not presented any meritorious reasons why Judge Zampino's reasoning was incorrect. Indeed, neither in her brief nor at oral argument did she provide any such reasons. Instead, she argued the same list of credits and debits she presented to Judge Zampino, but never explained why the judge's analysis of them was incorrect. We have carefully considered the record and the arguments defendant presents, and we conclude that Judge Zampino was correct when he accepted plaintiff's proposed distribution and rejected hers. We agree with plaintiff's argument that many of the items for which defendant seeks reimbursement were for expenses she incurred prior to the divorce. The parties entered into a property settlement agreement that represented a global resolution of the various debits and credits that were owed to each of them. It is simply too late for defendant to attempt to obtain repayment for items that could have, and should have, been included within that property settlement agreement.
Moreover, the February 24, 2005 order prohibited the parties from withdrawing money from the home equity line of credit without the consent of the other party or the approval of the court. Defendant ignored the provisions of that order and engaged in self-help. When the judge entered the February 24, 2005 prohibition on such unilateral and unauthorized withdrawals from the home equity line of credit, he did so in order to avoid the after-the-fact justifications that defendant asserts here. That order provided that if the parties could not agree on whether a withdrawal should be made from the home equity line, they were to arrange for a telephone conference call with the court. Unquestionably, this was a streamlined and efficient method for resolving disputes about access to the home equity line of credit, but defendant chose to ignore that provision of the order when she withdrew $9,460 from the line of credit on August 4, 2005.
Accordingly, we conclude that Judge Zampino correctly rejected defendant's attempts to require plaintiff to reimburse her for alleged expenses incurred prior to the judgment of divorce. The judge also was correct when he disallowed defendant's unauthorized access to the home equity line of credit.
We also reject defendant's argument that the court erred in not conducting a plenary hearing. No plenary hearing was required because the material facts were not in dispute. Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). Instead, the court was presented with detailed proposals from the parties setting forth their respective positions concerning distribution of the proceeds from the sale of the marital home. The judge did not need a plenary hearing to decide which one of those proposals was meritorious. It was obvious from the documents presented that defendant's proposal suffered from the infirmities we have described. A plenary hearing would not have changed that result. Accordingly, we conclude that Judge Zampino properly and correctly accepted plaintiff's proposed distribution and rejected defendant's.