On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FM-07-238-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...