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Foerster v. Foerster

May 21, 2008

WILLIAM K. FOERSTER, PLAINTIFF-APPELLANT,
v.
SUSANN S. FOERSTER, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-538-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2008

Before Judges Simonelli and King.

Plaintiff, William K. Foerster, appeals from a post-judgment order holding him in violation of litigant's rights for failing to pay defendant Susann Foerster, pursuant to the parties' property settlement agreement (PSA), incorporated into the final judgment of divorce. Plaintiff also appeals from the denial of his cross-motion, pursuant to Rule 4:50-1, seeking relief from the PSA and a credit against the amount due to defendant as a result of her alleged non-disclosure during discovery of all of her financial assets. We find no legal error or abuse of discretion and affirm.

I.

On October 27, 2004 plaintiff filed a complaint for divorce. Trial was scheduled for January 22, 2007. On the trial date, the parties engaged in extensive settlement negotiations, which resulted in a proposed agreement. The judge granted the parties' request for additional time to prepare and execute a written settlement agreement, and instructed them to return on January 29, 2007 to formalize the case as uncontested.

On January 29, 2007 plaintiff objected to the proposed PSA because defendant failed to disclose during discovery the full extent of her financial assets. He contended that his agreement to settle had been based on the information obtained during discovery. He requested an adjournment to investigate the true extent of defendant's financial assets subject to equitable distribution.

The judge denied plaintiff's request, but suggested that the settlement agreement contain a "carve out" clause giving them the right to engage in post-judgment discovery on the issue plaintiff had raised. The parties agreed and the suggested "carve out" clause was placed on the record. They also modified and executed the PSA which then provided:

Both parties are entitled to engage in post judgment discovery to determine if additional accounts exist at any banking institution which were not disclosed in discovery and which were subject to equitable distribution. In that event, either party is entitled to have the issues resolved on plenary hearing or motion with fees, if appropriate.

The judge entered a final judgment of divorce on January 29, 2007 which incorporated the terms of the PSA. Pursuant to the PSA, plaintiff was required to pay defendant approximately $39,500 within thirty days. The exact amount was to be determined at a "closing," with each party required to exchange all documents pertaining to the credits claimed with the calculation of the final amount due at least five days prior to the closing. Based on the documents provided to her by plaintiff, defendant calculated the amount due to her under the PSA as $38,130.21.

The closing did not take place and plaintiff did not pay defendant the sum as required by the PSA. On March 28, 2007, thirty days after payment to defendant was due under the PSA, plaintiff served subpoenas on Sovereign Bank and Investors Savings Bank, two banks where defendant had accounts.

On May 3, 2007 defendant filed a motion to enforce litigant's rights -- to compel plaintiff to pay her $38,130.21 pursuant to the PSA. Defendant requested oral argument on her motion. On May 18, 2007 plaintiff filed his opposition to the motion, and a cross-motion pursuant to Rule 4:50-1, seeking relief from the PSA and a credit in an amount between $12,000 and $24,000, which represented the amounts in defendant's allegedly undisclosed bank accounts, which plaintiff claimed were subject to equitable distribution. Plaintiff's supporting certification was twenty-five pages long, the page limit permitted by Rule 5:5-4(b), and although certain exhibits were referenced in the certification, those exhibits were not attached to it; he did not request oral argument on his cross-motion.

On May 21, 2007, without seeking leave of court, plaintiff filed a supplemental certification containing the missing exhibits which was not received by defendant until May 24, 2007. Defendant filed her opposition to the cross-motion on May 22, 2007.

On June 8, 2007, without holding oral argument on the parties' cross-motions, the judge issued two orders; one granted defendant's motion and directed plaintiff to pay the sum of $38,130.21, the other denied plaintiff's cross-motion. The judge placed his statement of reasons on the record.

II.

Plaintiff appeals from the denial of his cross-motion for relief from the PSA. In his point A, he contends that the trial judge abused his discretion by not entertaining oral argument both because defendant requested oral argument on her motion to enforce litigant's rights, and because his cross-motion raised substantive issues deserving argument. He contends in his point B that the judge abused his discretion by not considering his supplemental certification, filed before the return date of the parties' cross-motions. In his point C, he contends that the judge erred by not providing sufficient findings of fact and conclusions of law supporting his denial of the ...


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