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Strong v. Arnold


March 31, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-238-02.

Per curiam.


Argued October 1, 2007

Before Judges A. A. Rodríguez and Collester.

Mack Arthur Arnold (Arnold) and Alison Strong (Strong) were divorced on June 30, 2005, by a judgment of divorce that incorporated the parties' property settlement agreement (PSA).

At that time, both parties were represented by counsel. The parties had been married seventeen years and had two children, then ages seventeen and fifteen. It is undisputed that wife suffers from terminal cancer.

Pursuant to paragraph 4.1 of the PSA, Arnold agreed to continue to reside in the marital home with the parties' two children and to refinance the existing Mortgage. He would obtain a $100,000 line of credit, of which $75,000 was to be paid to Strong "as . . . an advance in equitable distribution." Strong agreed to execute a deed and an Affidavit of Title and Affidavit of Consideration conveying her interest in the property to Strong. Arnold would then "execute a Mortgage in the amount of $75,000 to secure [w]ife's second payment of $75,000 . . . to commence in or about January[] 2008 . . . ."

Six months after the divorce, the Mortgage and Note had still not been executed. In January 2006, Strong's counsel initially made inquires about the Mortgage and Note. After repeated exchanges of correspondence between opposing counsel, Arnold advised that he would sign the Mortgage and Note, but only after the terms were consistent with the PSA. Accordingly, in April 2006, Strong's counsel forwarded a revised Mortgage and Note to Arnold's counsel.

In April 2006, Arnold moved to enforce another paragraph of the PSA dealing with credit card debt. The judge denied the motion and awarded Strong $3,698.03 in counsel fees in an order entered on April 28, 2006.

In May 2006, Arnold's counsel returned the Mortgage and Note to Strong's counsel, but it was an unsigned, "marked-up" copy requesting additional changes to the provisions. One of Arnold's objections, was the inclusion in the Mortgage of a clause requiring "flood insurance or other types of insurance," in addition to the standard fire or property insurance. In addition, Arnold objected to a provision that any loss proceeds must be paid to Strong, who had the right to settle any claim. In June 2006, Strong's counsel responded with a letter rejecting all proposed changes and noting that Arnold's continued failure to cooperate would result in Strong filing a motion with the court.

In response, Arnold's counsel sent a letter stating that the Mortgage and Note, as drafted, did not comply with the PSA and that additional modifications were necessary before Arnold would execute it. In the hopes of settling the dispute, Strong's counsel solicited the advice of the parties' joint expert, Rufino Fernandez (Fernandez), who assisted in the negotiation of the PSA. Strong's counsel supplied copies of the relevant provisions of the PSA, in addition to a copy of Strong's proposed Mortgage and Note.

On July 28, 2006, Strong's counsel, upon the recommendation of Fernandez, advised Arnold's counsel that no further changes to the Mortgage and Note were warranted and all proposed terms were consistent with the PSA. At this time, Arnold was out of the country with the parties' two children. Upon his return, Arnold was diagnosed with meningitis. He did not work from August 2006 through September 2006. Arnold expressed his inability to concentrate or focus on the Mortgage and Note issue at that time to both Strong and his counsel.

In September 2006, Strong filed a motion to enforce the PSA. Arnold, who is an attorney admitted to practice in New Jersey, filed pro se his certification in opposition, and cross-moved to recuse the judge and to vacate an April 28, 2006 order concerning credit card debts. The judge heard oral argument.

At the conclusion of the hearing, the judge directed Arnold to immediately execute the proposed version of the Mortgage and Note dated October 30, 2006, pursuant to paragraph 4.1b of the PSA. The judge stated that the current version of the Mortgage and Note was "pro forma . . . [and contained] standard language." Indeed, the judge noted that the parties' expert, Fernandez, had also agreed that the Mortgage and Note were "fine to sign." Moreover, the judge found that Arnold's request to waive default provisions, specifically interest, was "ludicrous." Finally, the judge stated that Arnold "[was] despicable for not signing a note and mortgage when . . . [his] former wife is dying, to give her the peace of mind in her remaining time."

The judge also rejected Arnold's arguments regarding the disputed credit card debt, and stated that this issue could not be used to "stonewall" the signing of the Mortgage and Note. Further, the judge denied Arnold's cross-motion for recusal and awarded Strong counsel fees and costs.

Arnold moved for reconsideration and sought to set aside the April 28, 2006, and October 30, 2006 orders. The judge considered Arnold's motion for reconsideration despite Strong's "request that the court not consider it as out of time." The judge summarily denied Arnold's motion for reconsideration and upheld his previous order awarding Strong $4,000 in counsel fees.

Arnold now appeals from the following orders: April 28, 2006; October 30, 2006 (two orders); and December 12, 2006. We decline to consider an appeal from the April 28, 2006 order because it was entered more than forty-five days before the filing of the notice of appeal on December 29, 2006.*fn1

On appeal, Arnold contends that the Mortgage and Note ordered to be executed on October 30, 2006, should be cancelled and redrafted to comport with the parties' obligations and reasonable expectations as set forth in the PSA. Specifically, Arnold asserts: 1) that the Mortgage and Note in its current form require him to purchase flood insurance, which was not required by the PSA and was not maintained on the marital home during the marriage; 2) that insurance proceeds for claims on the house should be used to repair the home and not be payable to Strong directly; and 3) that the Mortgage and Note require that he pay Strong $75,000 without regard to whether that was the correct amount due under the PSA. We agree only with the first argument.

Our courts have consistently held that property settlement agreements "fall[] within the category of contracts enforceable in equity." Flanigan v. Munson, 175 N.J. 597, 606 (2003) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)). Therefore, "general contract principles govern their judicial construction and alteration." Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988) (citing Dworkin v. Dworkin, 217 N.J. Super. 518, 524 (App. Div. 1987); Davidson v. Davidson, 194 N.J. Super. 547, 553-54 (Ch. Div. 1984)). Specifically, courts are charged with the task of first discerning and then implementing the common intention of the parties. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (citing Tessmar v. Grosner, 23 N.J. 193, 201 (1957)). As such, the court's role is to interpret the words based on their ordinary meaning and give effect to the expressed or apparent intention of the parties. Flanigan, supra, 175 N.J. at 606.

In the family context, however, the power to enforce such agreements is only available to the extent the terms are "fair and equitable." Lepis v. Lepis, 83 N.J. 139, 148-49 (1980). Thus, "[t]he law grants particular leniency to agreements made in the domestic arena, and likewise allows judges greater discretion when interpreting such agreements." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992). Nevertheless, once parties have reached a property settlement agreement, no court may create a "new or better" contract for them, even in the area of family law. Aarvig v. Aarvig, 248 N.J. Super. 181, 185-86 (Ch. Div. 1991).

Arnold argues that the Mortgage and Note executed on October 30, 2006, are inconsistent with the PSA. More specifically, Arnold argues that the inclusion of additional terms which require him to purchase flood insurance, pay insurance claim proceeds directly to Strong, and make a $75,000 payment to Strong without regard to whether this is the correct amount, afford Strong greater rights than those contained in the PSA.

The PSA does not explicitly address what type of insurance, if any, needs to be maintained on the marital home during the life of the Mortgage and Note. According to Strong's counsel, the flood insurance requirement is simply a standard mortgage term and only requires Arnold to carry insurance coverage so that the premises are adequately maintained. The PSA, however, does not call for Arnold to purchase flood insurance for the marital home. Arnold states that, at no time was the marital home covered by flood insurance and that the home is not in a flood zone. Therefore, Arnold seeks relief from the increased financial expense of purchasing flood insurance when no mention of it was included in the PSA.

We conclude that he is entitled to such relief. Here, the PSA is silent with respect to the requirement to carry flood insurance on the home. Had this term been bargained for and included in the PSA, it would be fair and equitable. If a party fails to bargain for a term, however, the court should not allow one party to redraft the PSA by incorporating an inconsistent term. Because this term was never specifically negotiated for, we conclude that the requirement to carry flood insurance on the marital home should not be included in Arnold's Mortgage.

Next, Arnold argues that insurance payments made payable directly to Strong, without mandating that they be used to improve or repair the premises, is inconsistent with the PSA. According to the Mortgage and Note, insurance payments from claims on the marital home would be payable directly to Strong and be used, at Strong's discretion, to reduce the amount owed on the Mortgage or to fix or restore the marital property.

The requirement that the Mortgagee be the first "loss payee" upon the submission of a claim is standard. Therefore, we reject Arnold's argument that he should receive the proceeds.

Finally, Arnold argues that the Mortgage and Note are inconsistent with the PSA because they require payment in full of $75,000 without regard to whether that is the correct amount Strong is entitled to under the PSA.

A party has an absolute duty to review and cite the record and reference supporting law. R. 2:6-9 (2008). "Despite the fact that independent research by the court is, to a greater or lesser extent, the invariable rule, the parties may not escape their initial obligation to justify their positions by specific reference to legal authority." State v. Hild, 148 N.J. Super. 294, 296 (App. Div. l977).

Arnold has submitted a brief absent any reference to facts or legal authority to support his argument. Therefore, we reject Arnold's claim.

Arnold further contends that the judge's ill-will towards him, his sympathy for Strong, and his blatant impartiality, warranted his recusal, and thereby entitles him to vacation of the judge's post-judgment orders.

Arnold asserts that the judge's demeanor during the October 30, 2006 oral argument evidences his impartiality and lack of neutrality. Arnold also alleges that the post-judgment orders entered by the judge were tainted by his bias and sympathy for Strong's medical condition. Additionally, Arnold states that at various points during the April 28, 2006 hearing, the judge referred to him as "despicable," "silly," and "ludicrous." Moreover, when Arnold attempted to explain his position, he states that the judge told him that: 1) he would not allow Arnold to "filibuster;" 2) Arnold's position was "ridiculous;" 3) "[he] was outraged by his position;" and 4) "if it was on a bar exam [he would] fail."

For the following reasons, we affirm the denial of Arnold's motion for recusal.

Pursuant to R. 1:12-1,

The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter . . . (f) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.

[R. 1:12-1(f)(2008).]

Whether disqualification is ultimately warranted is initially left to the discretion of the court. Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). In considering the basis for the alleged "disqualif[ication] on the ground of an appearance of bias, the belief that the proceedings were unfair must be objectively reasonable." Panitch v. Panitch, 339 N.J. Super. 63, 67 (App. Div. 2001) (quoting State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 139 L.Ed. 2d 88, 118 S.Ct. 140 (1997)).

In New Jersey, courts have consistently held that this provision should be used sparingly in the interest of judicial efficiency. See Graziano v. Grant, 326 N.J. Super. 328, 350 (App. Div. 1999). Further, "[t]hese provisions should not be used to waste judicial resources and unjustifiably question the objectivity of judges." Matthews v. Deane, 196 N.J. Super. 441, 447 (Ch. Div. 1984).

In response to Arnold's allegations, the judge stated that he had not participated in making any decisions impacting the parties' rights other than to approve the PSA. Further, the judge expressed his belief that he was in no way prejudiced against Arnold and stated that "all I'm going to do is decide a motion that would be decided a hundred out of a hundred judges in favor of [Strong]."

After careful review of the record, it appears that the judge had become increasingly frustrated with Arnold throughout the case, ultimately manifesting itself into several personal attacks during the October 30, 2006 hearing when the judge's impartiality was challenged. Admittedly, several of the judge's comments were wholly inappropriate and clearly made Arnold feel like the proceedings were not being handled in an impartial manner. However, based on the recusal standard discussed above, recusal should only be granted sparingly to promote judicial efficiency. It is not an available tool to those parties who are simply dissatisfied with the decision handed down in a case. See State v. Marshall, 148 N.J. 89, 186-87 (1997). More importantly, mere use of inappropriate language by a judge is simply not enough to warrant recusal.

Next, Arnold argues that his November 29, 2006 motion for reconsideration should have been granted for the following reasons: 1) Strong should have been directed to identify a person authorized to discharge the Mortgage and Note in the event of her incapacity or death; 2) Strong should have been assigned any financial responsibility to purchase insurance coverage; and 3) the judge's prior order should have included a ruling that the Mortgage and Note shall not confer any greater rights to Strong than those contained in the PSA.

On December 12, 2006, the judge denied Arnold's motion for reconsideration, stating that Arnold had not presented any "new evidence or facts . . . that [were] not already known prior to the court's previous orders."

Rule 4:50-1 states, in relevant part,

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order [based upon] . . .

(b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49 . . . .

[R. 4:50-1(b) (2008).]

Once again, Arnold has failed to put forth any factual or legal basis to support his position. R. 2:6-9. Nonetheless, even if this court analyzed the merits of Arnold's claims, his arguments would be rejected in light of his failure to present any new evidence in his motion for reconsideration. R. 4:50-1(b). Therefore, the court properly denied his motion.

Finally, Arnold argues that in order "to protect privacy and preserve judicial fairness on remand," this court should implement appropriate safeguards. We reject this argument as being without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Accordingly, we reverse that portion of the October 30, 2006 order which obligated Arnold to sign a Mortgage and Note containing a requirement that he purchased flood insurance. We direct that Strong prepare a corrected Mortgage and Note, which Arnold must execute. The cost of the preparation and filing of these documents shall be borne by Strong. All other portions of the October 30, 2006, and December 12, 2006 orders are affirmed. The April 28, 2006 order was not timely appealed and therefore, remains in effect.

Affirmed in part and reversed in part.

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