March 12, 2008
ESTHER SEGAL MYER, PLAINTIFF-RESPONDENT,
MORTIMER MYER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-993-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 16, 2008
Before Judges Cuff, Lisa and Simonelli.
Defendant, Mortimer Myer, appeals from denial of his motion for a plenary hearing for equitable distribution of property acquired during his marriage to plaintiff, Esther Segal Myer. Defendant's motion was filed twenty-seven months after the judgment of divorce. The sole basis upon which the motion was denied was that it was not timely filed. Considering all of the circumstances, and the relative positions taken by the parties in connection with the motion, we conclude that denial of the motion constituted a mistaken exercise of discretion. Accordingly, we reverse.
The parties met in January or February 2001. Defendant was then eighty-one years old, and plaintiff was sixty-nine years old. Both parties' spouses from previous long-term marriages, by which they had children, had died. The parties married soon after they met, on April 1, 2001.
At that time, defendant was the sole owner of a condominium in Florida, which he apparently owned free of encumbrances, and which was his most significant asset. Plaintiff owned a home in Margate. Shortly before the marriage, on March 21, 2001, plaintiff executed a deed conveying title to the Margate home to herself and her four daughters as joint tenants. Plaintiff's daughter, an attorney, prepared the deed and was one of the grantees.
Soon after the marriage, on May 15, 2001, defendant executed a deed placing title to the condominium in his and plaintiff's names as tenants in common. On October 11, 2001, defendant purportedly signed a second deed, along with plaintiff, reconveying title to the condominium to themselves as tenants in common, but this time with a life estate to each spouse and to include all personalty in the premises.
About three years after the marriage, the parties separated. Plaintiff returned to New Jersey. Through the services of her attorney-daughter, plaintiff filed a divorce complaint on grounds of extreme cruelty on April 29, 2004. The complaint made no mention of property acquired during the course of the marriage and did not seek relief with respect to equitable distribution of property. Defendant was served with the complaint and a summons. He did not respond.
On June 29, 2004, plaintiff's daughter filed with the clerk a request to enter default and supporting certification, with copies served on defendant. However, it appears that the court refused to accept the certification because it failed to mention whether equitable distribution was sought. See R. 5:5-10 (formerly R. 5:5-2(e)). A new certification was filed with the court, in which plaintiff certified, in relevant part, "There are no issues of alimony, child support or equitable distribution." This certification was dated July 22, 2004, and it was not served on defendant.
On July 22, 2004, the court entered a judgment of divorce, which granted as the sole relief dissolution of the marriage.
The judgment made no mention of equitable distribution of property.
Defendant was served with a copy of the divorce judgment. He corresponded with the court, disputing that he committed the alleged acts of extreme cruelty. The Family Part judge who had entered the divorce judgment responded by letter of August 10, 2004. The judge advised defendant that if he wished to seek relief he must file a motion. The judge enclosed a pro se motion packet.
Defendant contends that it was his understanding all along with plaintiff that when they separated they would be restored to the positions they were in before they married. Accordingly, defendant contends that he fully expected that plaintiff would convey title to her interest in the condominium to him. Defendant also contends that plaintiff had in her possession certain items of sentimental value that were his and which he believed she would return to him.
On July 11, 2005, defendant filed a pro se replevin action in New Jersey seeking recovery of the items. On August 10, 2005, a judge of the Special Civil Part in Atlantic County entered an order granting plaintiff's motion to dismiss the replevin action with prejudice. The order further recited that because defendant's "claims appear to arise out of a family relationship . . . . this matter is being transferred to the Family Division. Both parties will receive notice from the Court regarding when the matter will be heard." On August 31, 2005, the Family Part judge who had entered the divorce judgment corresponded with defendant, enclosing a copy of the Special Civil Part order, also enclosing a copy of the August 10, 2004 letter with the pro se motion packet, and informing defendant "that application must be made to the Family Division and should be filed as a motion under your divorce docket number and caption." The letter concluded that "[u]nless and until you file such a motion, the Court will not take any further action."
Still living in Florida and at an advanced age, defendant made inquiries of several attorneys to assist in this matter. The record contains very little by way of details regarding these efforts. Nevertheless, by June 2006, he engaged the services of his present counsel in New Jersey, who corresponded with plaintiff's attorney-daughter on June 9, 2006, in an effort to amicably resolve the disputed issues, most importantly, the execution of a deed to the Florida condominium. Settlement efforts proved futile, and on October 31, 2006, defendant's counsel filed a motion for a plenary hearing to resolve equitable distribution issues.
Plaintiff opposed the motion. In her responding certification, she set forth a different version of the understanding between the parties, regarding title to the Florida condominium, as well as the transfer of title shortly before the marriage to her Margate home. In addition to opposing the motion, plaintiff filed a cross-motion seeking partition of the Florida condominium, demanding that defendant pay her one-half the value (which defendant estimated at $200,000) in exchange for her relinquishment of her title interest.
The matter came on for hearing on December 22, 2006 before a different Family Part judge than the one who handled the divorce. The judge found:
What is being asked, we're not trying to open the Judgment of Divorce, but you're asking the Court to go back and, using its powers of equity, to reargue matters for equitable distribution purposes. And we're being asked to determine what is reasonable.
Given the facts of this case, this is not a situation where one of the parties was unavailable, in a coma for two years, out of the country for two years, unaware for two years. Mr. Myer has known all along the circumstances in this case, the issues that abound, the fact that there are property that he wanted, or a condominium that he claims an interest in. He responded to the Court within a month's time. He filed a replevin action within a year. He still did nothing more for another year until this action 2-1/2 years later.
I think the time has tolled. I believe that Mr. Myer is out of time. Under these particular circumstances, the facts in this case, the knowledge that he's had, it would be -- it would not be equitable to open up these matters, to argue these issues regarding the distribution of the items that were discussed in the Motion.
And so, for that reason, I am not going to grant the requests in this case of the Defendant. I am not going to schedule or have an equitable distribution proceeding in order to reargue or hear litigation or issues and make factual findings regarding the distribution of those items identified in his Motion. I believe that he is out of time to make this application and, therefore, for procedural reasons, decline to make any determinations as to the distribution as requested.
Plaintiff persisted in pursuing her cross-motion for partition, seeking an order to compel defendant to pay her $100,000 in exchange for her execution of a deed or, alternatively, to order the property sold and the proceeds equally divided. Plaintiff insisted that as a tenant in common she is the lawful owner of an undivided one-half interest and can, at any time, demand severance of the estate and receive in cash, either from the co-tenant or through a sale, the value of her share.
In discussing the proper forum in which any partition of the property should be entertained, the following colloquy occurred:
[PLAINTIFF'S ATTORNEY]: Judge, if we assume that the only action that this Court -- forget anything having to do with the equitable distribution issues -- if the only action before this Court was my application for partition arising out of this marital relationship and now the tenants in common, my position is that the Court, this Court would have jurisdiction. I think it would [be] coequal to the General Equity Court, but I don't think it would be a matter that would be exclusively the jurisdiction of another arm of the equity.
This is a Court of Equity that's the Chancery Division, Family Part, as opposed to General Equity. I think it could go either way. But if the Court is uncomfortable, the Court has to rule as the Court feels appropriate.
THE COURT: I'm not sure. I mean, there are -- it depends. It's six of one, half-a-dozen of the other. It could have started over in General Equity, and they may have sent it back over here thinking that it would --
[DEFENDANT'S ATTORNEY]: And then I would have loved that.
THE COURT: And then they would have said well, your know, it sounds like this comes out of a divorce action, a marital action, so it's more apt to be in Family.
[DEFENDANT'S ATTORNEY]: Right.
[PLAINTIFF'S ATTORNEY]: Which is why --
THE COURT: Believe me, it probably would have ended up over here.
Ultimately, the judge decided to deny plaintiff's cross-motion seeking partition and, in the final order that is now before us, directed that plaintiff's attorney "shall file a complaint for partition with the appropriate Court."*fn1 Plaintiff has not cross-appealed from denial of her motion.
It is abundantly clear that both parties seek to resolve the status of the title to the Florida condominium. The interest in the property acquired by plaintiff was acquired during the marriage, conferring upon the Family Part jurisdiction to equitably distribute the property in connection with a divorce action. N.J.S.A. 2A:34-23h.
We recognize the concern of the trial judge with the long delay before defendant sought equitable distribution in connection with the divorce proceeding. However, in our view, the aggregate circumstances attendant to that delay militate in favor of granting defendant a hearing on the issue. The condominium is, after all, defendant's home and his major asset. He did make efforts to obtain relief, by filing a misguided replevin action and seeking out and ultimately obtaining legal counsel. He was not served with the amended Rule 5:5-10 certification stating that there were "no issues of . . . equitable distribution." And, in the two letters to defendant from the Family Part judge who handled the divorce, the judge advised defendant of the need to file a motion, but in neither letter was there any mention of any time limit. Our mentioning this is in no measure a criticism of the judge. Indeed, the judge acted very appropriately and responsively to a pro se litigant. We merely note that from the perspective of that litigant, he might well have understood that the motion could be brought at any time, especially when the same advice was furnished to him in the August 31, 2005 letter, a year after the August 10, 2004 letter.
We discern no prejudice to plaintiff by the delay. Indeed, she has not claimed prejudice. She was well aware of defendant's position and efforts. She was obviously served with the replevin action, because it was her motion that resulted in its dismissal. When defendant ultimately obtained New Jersey counsel, that counsel promptly corresponded with plaintiff's attorney-daughter. Plaintiff does not point to anything she did or refrained from doing differently because of the delay.
In our view, the distribution of this property should not be the subject of a straight partition action. The transfer of title was plainly within the context of the marital relationship, and the myriad of factors applicable to the equitable distribution of property acquired during the marriage should guide the equitable manner by which it will be distributed. Thus, the law of equitable distribution will apply. Such a division should be made in the Family Part by a judge who possesses special expertise in such matters. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). See R. 5:1-2(a) ("All civil actions in which the principal claim is unique to and arises out of a family or family-type relationship shall be brought in the Family Part."); see also, In re Estate of Roccamonte, 174 N.J. 381, 398-99 (2002) (claim for monetary award against estate of cohabitant, in nature of palimony, cognizable in Family Part); Conforti v. Guliadis, 128 N.J. 318, 323-24 (1992) (action between former spouses regarding reformation of commercial lease incorporated in divorce judgment should be resolved in Family Part); Mitchell v. Oksienik, 380 N.J. Super. 119, 131 (App. Div. 2005) (partition of home between unmarried cohabitants should have been cognizable in Family Part in connection with proceeding under Prevention of Domestic Violence Act); Olson v. Stevens, 322 N.J. Super. 119, 123 (App. Div. 1999) (real estate partition action between unmarried cohabitants brought in General Equity Part ordered transferred to Family Part to be consolidated with palimony and custody actions pending there); Finkel v. Finkel, 290 N.J. Super. 204, 209 (App. Div. 1996) (issues between spouses regarding fraudulent transfer and lien claims should have been heard in Family Part); Dey v. Varone, 333 N.J. Super. 616, 619 (Ch. Div. 2000) (dispute over property acquired during a period of non-marital cohabitation transferred from General Equity to Family Part, with observation that "[d]espite [the] spacious view of what constitutes a 'family,' experienced practitioners frequently commence actions for the distribution or partition of real or personal property between unmarried adults in the General Equity Part rather than the Family Part").
Accordingly, we remand to the Family Part to conduct such proceedings as the court in its discretion deems appropriate to resolve the equitable distribution of property, including the condominium and any other property, acquired by the parties or either of them during the marriage.
Reversed and remanded for further proceedings. We do not retain jurisdiction.