January 22, 2008
ROSEMARIE RAIMO (F/K/A BRZEZANSKI), PLAINTIFF-RESPONDENT,
JAY BRZEZANSKI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1471-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2007
Before Fuentes, Grall and Chambers.
Plaintiff Rosemarie Brzezanski, now known as Rosemarie Raimo, and defendant Jay Brzezanski married on March 8, 1980, and they were divorced on June 29, 2004.*fn1 Defendant appeals from three post-judgment orders entered in an action for divorce: an order compelling him to execute documents necessary to effectuate an agreed distribution of his pension, entered on March 20, 2007; an order requiring plaintiff to pay defendant one-half of the proceeds she obtained from the sale of military memorabilia, entered on April 13, 2007; and an order compelling defendant to pay counsel fees and costs in the amount of $2000 as a sanction for failure to comply with the March 20, 2007, order, entered on April 23, 2007. We affirm the order of March 20, 2007, reverse the orders of April 13 and 23, 2007, and remand for further proceedings relevant to the military memorabilia.
The final judgment of divorce reflects that the Brzezanskis freely and voluntarily entered into a property settlement agreement, and it directs plaintiff's attorney to prepare a supplemental judgment within fourteen days. The supplemental judgment was never prepared. As a consequence, the Brzezanskis' full property settlement agreement cannot be understood without consideration of three documents: a draft written agreement prepared prior to the final hearing; oral modifications placed on the record on June 29, 2004; and a subsequent written modification signed by the parties on July 23, 2004.*fn2 On the basis of the agreements, as reflected in those documents, and the papers submitted on the post-judgment motions, we address separately each of the orders from which defendant appeals.
The facts pertinent to the order of March 20, 2007, are easily stated. The agreement relevant to distribution of defendant's military pension is clear. It provides:
Husband is also entitled to a military pension. Husband will fully cooperate with Wife in signing all documents necessary to enable and to ensure that the Wife will receive fifty percent (50%) of Husband's entitlement (military pension), which was accumulated during coverture. The Wife's attorney shall prepare the necessary documents to facilitate and secure the Wife's interest in Husband's military pension and submit same, together with any other documents necessary to the appropriate military authority and to Husband's attorney for review and completion, if required.*fn3
By notice of motion dated January 26, 2007, plaintiff moved for an order compelling defendant to execute a qualified domestic relations order to facilitate the transfer of her share of defendant's pension. She also asked the court to find defendant in violation of litigant's rights and award counsel fees in the amount of $1974.65. According to the papers submitted in support of that motion, plaintiff's attorney mailed defendant's attorney a consent order for signature. The prepared consent order provided for plaintiff to "receive fifty percent (50%) of the service member's entitlement in the United States military pension/disposable retired pay that was accumulated during the marriage period." Plaintiff represented that defendant did not respond to the letter.
Defendant opposed plaintiff's enforcement motion on the ground that his consent was not necessary. He also represented that he did not sign the prepared consent order because plaintiff's attorney had neglected to enclose it in the envelope with the cover letter.
The motion judge denied oral argument and entered an order compelling defendant to "execute a QDRO, and any other necessary documents, to facilitate distribution of [p]laintiff's 50% entitlement share of [d]efendant's military pension pursuant to the parties' property [settlement] agreement." The judge denied plaintiff's requests to find defendant in violation of litigant's rights and award counsel fees. In a brief statement of reasons appended to the order, the judge explained: "The [c]court orders the [d]efendant to sign the QDRO that the [p]laintiff's counsel has prepared within 14 days of the filing date of this Order. If the [d]efendant fails to comply with the [c]court's Order the [c]court will sanction the [d]efendant with [p]laintiff's counsel fees upon receipt of a certification of attorney services as well as a proposed order."
On appeal defendant argues that the judge did not give an adequate explanation of reasons. While we do not approve of the manner in which the judge addressed or explained his reasons for the ruling on the motion, the judge's failure to comply with Rules 1:6-2(d), 1:7-4 and 5:5-4(a) was not prejudicial to defendant. See R. 2:10-2. Given the clarity of the parties' agreement on distribution of defendant's pension and the terms of the document plaintiff asked defendant to execute to facilitate her receipt of her share of that pension, entry of an order compelling defendant to sign the document was entirely proper. The order had no other operative provision. While the statement of reasons appended to the order threatened to impose a sanction in the form of counsel fees if defendant did not comply with the order, that statement had no legal effect. The order requires nothing more than compliance with the undisputed terms of the parties' agreement and required no further explanation. Cf. Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). Moreover, a court does not have authority to impose a self-executing penalty for future contempt. See In re Parsippany-Troy Hills Educ. Assn, 140 N.J. Super. 354 (App. Div. 1975); Pressler, Current N.J. Court Rules, comment 3.3 on R. 1:10-3 (2008).
The order of April 23, 2007, which requires defendant to pay plaintiff counsel fees in the amount of $2000, was entered in response to a letter from plaintiff's attorney and without formal motion. Apparently relying upon the statement of reasons appended to the order of March 20, 2007, plaintiff's attorney informed the judge that defendant had not signed the consent order as the court had directed but, instead, had submitted a revised order. On that basis, plaintiff's attorney asked the judge to assess counsel fees against defendant. The attorney enclosed the consent order amended and signed by defendant and his attorney on April 2, 2007. The consent order defendant signed had been amended in a manner that misstated the dates of the parties' marriage and added references to a specified number of "retirement points" and a "grade" that were not mentioned in the parties' agreement.
The judge's frustration with defendant's failure to comply with the order of March 20, 2007, is understandable. The amendments defendant made to the order he was directed to sign could not be justified by any reasonable reading of the parties' agreement to distribute defendant's pension.
Nonetheless, the judge's imposition of counsel fees as a sanction and in response to a letter from plaintiff's attorney was not a response authorized by the court rules. The operative provisions of the March 20, 2007, order do not include a date by which defendant must sign the order or require him to pay a counsel fee in the amount of $2000. Plaintiff could not obtain fees on the basis of a warning included in an unsigned "statement of reasons," appended to an order. To obtain relief for a violation of the order of March 20, 2007, plaintiff was required to file an application pursuant to Rule 1:10-3. That was not done.
The order of April 13, 2007, addresses a post-judgment dispute about distribution of a collection of military memorabilia. Defendant also appeals from that order.
The pertinent facts are as follows. Defendant collected military memorabilia prior to and during the marriage. By the time of the hearing on the judgment of divorce, the Brzezanskis had agreed on lists segregating premarital and marital acquisitions. They agreed, as clarified on the record at the hearing, that defendant would take possession of his premarital property on July 17, 2004, and that he would have the option to purchase any item acquired during the marriage at a price equivalent to the value of the item specified in an appraisal that plaintiff had obtained prior to the hearing. They further agreed that any item acquired during the marriage and was not purchased by defendant would be sold and the proceeds divided equally. Neither the draft written agreement nor the amendments agreed upon at the final hearing allocated responsibility for the sale.
Defendant collected his premarital acquisitions as agreed. According to him, the marital portion of the collection appeared to be intact at that time, and he made a video-tape of the items that remained. Subsequently, the parties could not agree as to how interested buyers could examine the items that would be sold. On July 23, 2004, plaintiff and defendant agreed, in writing, to revise the property settlement agreement they had placed on the record on June 29, 2004. By its terms, defendant agreed to "pick up the entire collection of military memorabilia" at a specified time and place. Plaintiff agreed to have the collection "lawfully and safely transported to such location and delivered intact . . . ." She represented "that the entirety of the balance of the collection [would] be delivered at that time and warrant[ed] that same shall be in the same condition as it was on the day the defendant left the former marital residence." She further represented "that neither she, nor anyone of whom she is aware, removed or will remove or retain, or damaged [sic], any of the items in said collection." Plaintiff acknowledged her understanding "that defendant [would] not have the time to effect a full inventory of the items at the time of pickup and that he waive[d] no rights respecting same." Plaintiff "waive[d] any and all claims she might have to any of the items in said collection or to any reimbursement, consideration, or payment for same."
Defendant retrieved the items at the time and place specified. He again video-taped the collection. Subsequently, he moved to enforce his rights under the parties' agreement concerning the collection of military memorabilia.
Defendant asserted the following in documents filed in support of his enforcement motion. Plaintiff did not deliver the items as promised in the agreement of January 23, 2004. A "substantial fraction" of the collection was missing. He listed the missing items and the value of each item as stated in the appraisal setting his option price. He alleged the items missing had a total $55,000. He provided the appraisal.
In response, plaintiff admitted that she sold some of the items in the collection to a dealer but claimed that she did so before agreeing to waive all interest in the collection.*fn4
On the basis of these conflicting assertions included in the parties' certifications, and without oral argument on the motion or a hearing to resolve the disputed facts, the judge awarded defendant "one-half [of] the proceeds obtained from the sale of items that were subject to equitable distribution." In a "statement of reasons" appended to the order, the judge explained that the parties' agreement called for an equal division of the proceeds of any sale.
Apparently in response to written requests from both attorneys for clarification of the order, the judge explained:
[T]he [c]court can only affix a remedy based upon competent information provided to it. The [c]court has nothing before it that would indicate the property's value other than the parties' statement as to its value. In contravention thereto, [plaintiff] presented evidence that she received far less for the sale of the property from someone who arguably had knowledge as to its value. Should [defendant] present to this [c]court competent and credible evidence which may include expert evidence or evidence of value based upon his personal knowledge (e.g., "purchase price"), the [c]court will reconsider his claim. In the absence thereof, the [c]court cannot provide him with the relief that he seeks.
The order was entered without considering the relevant facts and the arguments presented. The judge failed to consider or address the significance of the agreement amending the final judgment signed by both parties on July 23, 2004. The judge overlooked the appraisal stating the value of the items that defendant alleged were missing, which was included in defendant's appendix. Facts material to the issues presented were in dispute, including: the items that were and were not made available to defendant; the date of any sale plaintiff made; and, arguably, the meaning of the parties' agreements.
Basic principles governing decisions on motions require us to reverse the order and remand defendant's application to enforce his rights to the military memorabilia for de novo consideration. A trial court deciding a motion that is appealable as of right must "find the facts and state its conclusions of law." R. 1:7-4a. Factual findings must be "correlat[ed] with relevant legal conclusions." Monte v. Monte, 212 N.J. Super. 557, 565 (App. Div. 1986) (citing Curtis, supra, 84 N.J. at 570) (trial on equitable distribution); Wertlake v. Wertlake, 137 N.J. Super. 476, 483-86 (App. Div. 1975) (post judgment). Where the essential facts asserted in the papers submitted on a motion are in dispute, a hearing is required. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). Because of the manner in which the judge addressed this motion, a remand for further proceedings is required. See Monte, supra, 212 N.J. Super. at 568-69; Wertlake, supra, 137 N.J. Super. at 485-86.
The order of March 20, 2007, is affirmed. The order of April 23, 2007, is reversed. The order of April 13, 2007, is reversed and remanded.