Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Gigantes v. Gigantes

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 22, 2008

PHYLLIS K. GIGANTES, PLAINTIFF-APPELLANT,
v.
NICHOLAS D. GIGANTES, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-155-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued May 5, 2008

Before Judges Sapp-Peterson and Messano.

Plaintiff Phyllis K. Gigantes appeals from 1) those provisions of a final judgment of divorce (JOD) entered on October 2, 2006, that fixed the value of the former marital home she shared with her ex-husband, defendant Nicholas D. Gigantes, at $480,000 for purposes of equitable distribution; and 2) subsequent orders dated June 15, 2007, that denied her motion to amend the JOD and granted defendant's motion requiring plaintiff to sell the home to defendant upon receipt of $240,000. Plaintiff contends that the trial judge erroneously concluded that the parties had stipulated to the sale price of the home, and she contends that the JOD should be amended to reflect the true understanding of the parties, i.e., that the home would be appraised and sold for fair market value. Alternatively, plaintiff argues that the matter should be remanded so that the trial judge can make "findings of fact in support of [his] conclusion on the issue of the value of the marital [home] for buyout purposes." We have considered these arguments in light of the record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.

The parties appeared for trial of plaintiff's divorce complaint on September 18 and 19, 2006, and in response to the judge's inquiry as to which issues had been settled and which issues needed to be tried, defense counsel noted,

[T]he parties own the marital home . . . at 36 Birds Eye Place in Wayne*fn1 . . . . It is agreed that [plaintiff] will be permitted to reside at that home with her son, until the son graduates from high school . . . in June 2009 . . . . It is agreed that the value of the home is fixed at $480,000, with each party being entitled to receive one-half of that amount.

[Defendant] will have the right to buyout [plaintiff's] interest in the marital home for the sum of $240,000.

[Judge]: As of June '09, even if the market goes up?

[Defense counsel]: June of '09 or at anytime prior, if--

[Judge]: The parties agree.

[Defense counsel]: --she no longer wants to reside there.

[Judge]: Even though the value maybe different, we're using that figure.

[Defense counsel]: Even though the value maybe different.

However, after a break in the proceedings, the judge again inquired whether any other issues had been settled. Defense counsel then responded,

There is no agreement with regard to the house right now.

[Judge]: All right, now the house is out[?]

[Defense counsel]: Yes, no agreement with regard to the house.

[Judge]: So what are the issues for trial, please?

[Defense counsel]: The issue[] that this court is going to have to address is [] what is to be done with the marital premises.

Trial then commenced with plaintiff's testimony and carried over to a second day with defendant testifying after plaintiff. Neither side called any other witnesses.

During summations, defense counsel advised the judge that, "The issues that are before the court today . . . involve, firstly, the marital home . . . . The stated value for purposes of this trial was $480,000." In response to a question by the judge, defense counsel answered, "My position on the house is that it should be sold with the net proceeds divided." He continued, "[W]e have no objection to either party be[ing] able to buyout the other's interest at 50% of fair market value."

During summation, in addressing the issue of alimony and plaintiff's desire to stay in the marital home until her son graduated high school, plaintiff's counsel noted,

I understand that there will not be sufficient monies for [plaintiff] to stay in that house for two and [one-]half years. Okay.

I also understand, and I explained it to her and she understands that it wouldn't be fair to [defendant] to wait . . . .

[Judge]: Well, if you put the house on the market now, It's not going to sell until after the [first] of the year anyway . . . .

[Plaintiff's counsel]: Except if . . . [defendant] intends to buyout that house, it could be a quicker period of time where my client is pushed out of the house.

[Judge]: Well, I guess if either one wants to buy the other out, you're talking $240,000 plus here.

[Plaintiff's counsel]: That's a number that counsel and I had worked on for purposes of the negotiations. What I'm saying is the appraisal could be 480 or it could be higher.

[Judge]: Well you already agreed it's 480, so if one wants to buy the other out it's 240. If you put it on the market, whatever the broker puts on, he puts on. But they agreed to 480.

[Plaintiff's counsel]: No, Your Honor.

Counsel and I agreed to the fact that the property for purposes of our trial work and negotiations of the 480, but for the purposes of determining if the house is going to be sold or bought by anyone, we're seeking an appraisal and put [it] on the open market.

[Judge]: . . . [I]f one's going to buy the other out, you want me to put a price on it[?]

[Plaintiff's counsel]: No. We're going to get an appraisal of the house. Whatever it is, if my client at this time or a third party wants to buy it out, it's fair market value.

[Judge]: Then what was the purpose of telling me 480?

[Plaintiff's counsel]: . . . [W]ell, initially we had worked out a scenario in which my client was going to stay there for three years.

[Judge]: That's gone now.

[Plaintiff's counsel]: . . . [T]hat 480 would be a number that we discussed for the purpose of that buyout. That situation doesn't exist anymore . . . .

On October 2, 2006, the judge entered a final JOD that was accompanied by an extensive written opinion that addressed all the trial issues. Near its conclusion, the opinion provided

The last remaining issue to be determined by the Court is that of the marital premises. Plaintiff has indicated that she would like to remain in the marital premises with her son until he graduates . . . [h]igh [s]chool . . . . Defendant on the other hand would like the house sold at the present time . . . or if possible would prefer to purchase the [p]laintiff's interest in . . . the property . . . based upon the stipulated value of $480,000. If of course the house is to be sold then the selling price would dictate the balance of equity to be received by each party.

Noting it was "not economically feasible" for plaintiff to remain in the marital premises for more than two more years, the judge ordered, "[p]laintiff may remain in the marital premises and not have the same listed for sale until January 2007 . . . . In January 2007 the house is to be listed with full compliance and cooperation of both parties. If the parties are unable to agree on a listing broker either may apply to the Court for a recommendation." The judge continued,

In the event however[] that [] [d]efendant still wishes to purchase the [p]laintiff's interest in . . . the [] property, he shall so notify [p]laintiff's attorney and [p]laintiff in writing within 21 days hereof of his intention. Closing of title would not take place thereafter until February 1, 2007 or anytime thereafter as the parties may agree. This should enable [p]laintiff more than enough time to relocate accordingly.

The JOD required the parties to submit an amended JOD incorporating "the terms of the decision" within ten days, or otherwise appear in court on a date set in the judgment.

On October 19, 2006, plaintiff's counsel sent a proposed amended JOD to defense counsel that provided for the marital home to be appraised, listed for sale in January, and the net proceeds of the sale to be divided evenly. Defendant objected to these terms by letter dated December 11, 2006, noting that pursuant to the judge's decision, he was entitled to purchase the marital residence by paying plaintiff $240,000. On January 22, 2007, plaintiff's counsel advised defense counsel by letter that he had "review[ed] the tape of the divorce proceedings," that it supported his recollection of events, and that he had no "recollection that either party could purchase the property for $480,000 as an agreed upon figure or method."

In April, with the issue still unresolved and no amended JOD entered, plaintiff moved for relief. She requested, among other things, that the judge enter the proposed amended JOD as she submitted, i.e., requiring the house to be appraised and sold with the proceeds split. Defendant cross-moved "[t]o settle the form of an Amended Final [JOD]," and to "[r]equir[e] [p]laintiff to sell her interest in the marital home to [] [d]efendant for $240,000 . . . ."

The parties appeared before the trial judge for oral argument of the motion and cross-motion on June 15, 2007. It is obvious from the transcript that the judge was understandably upset that an amended JOD still had not been finalized. He ordered all parties to return to court on June 19, 2007, "to play the tape" of the trial. The judge then entered two orders, the first, submitted by defense counsel, required plaintiff to "execute any and all documents necessary to transfer her interest" in the marital home "for the sum of $240,000" in anticipation of a September 1, 2007, closing date, and further required plaintiff to vacate the house by August 31, 2007. Below this provision in the order, however, the judge handwrote, "subject to determination on 6/19/07." The second order, submitted by plaintiff's counsel, required defendant to "execute the [a]mended [JOD]," which required the home to be appraised and listed for sale.

It is apparently conceded that on June 19, 2007, both attorneys and the judge listened to the taped proceedings. There was apparently no further argument and the judge did not place any findings or conclusions on the record.*fn2 Apparently, however, the judge indicated that he was not amending the June 15, 2007 orders because plaintiff thereafter filed this appeal on July 20, 2007.*fn3

We need not discuss at length the reason for the necessity of a remand. Although defendant argues that the trial judge implicitly found that the parties had indeed stipulated to a sale price of $480,000 if defendant bought out plaintiff's interests in the home, we cannot reach that conclusion with any certainty because there is no record of the judge's findings or conclusions in this regard. As we noted above, after the June 19, 2007, hearing at which everyone listened to the taped trial proceedings, the judge never again explained his rationale for allowing the June 15, 2007, orders, one of which was explicitly "subject to" further determinations, to remain as originally entered, and never explained his reasoning for the entry of the amended JOD in October.

As alternative arguments, both parties contend the matter ought to be remanded to the trial judge to, as defendant puts it, "make meaningful findings of fact" "relative to the buy[]out price" of the marital home. We agree that this is the appropriate result.

Rule 1:7-4(a) requires that the judge "by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right." Compliance with the rule is of critical importance for the purposes of appellate review. Pressler, Current N.J. Court Rules, comment 1 on R. 1:7-4(a)(2008). In this case, we do not have the benefit of the judge's findings and conclusions in the context of his review of the taped proceedings and the parties' post-trial submissions. It may well be his conclusion after due consideration, that the parties did in fact stipulate to the purchase price of the marital home, at least for purposes of defendant's re-purchase of the property; however, without the benefit of the reasons for such a conclusion, if indeed that is the case, we are unable to assess the arguments each party has raised.

We therefore remand the matter to the trial judge for further proceedings consistent with this opinion. We leave it to the sound discretion of the judge whether a further record needs to be developed or whether the existing transcripts from the trial and the post-trial submissions of the parties are sufficient.

We conclude that defendant's alternative arguments that plaintiff's appeal should be dismissed as untimely, or that plaintiff should be equitably estopped from prosecuting this appeal, to be of insufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(e).

Reversed and remanded. We do not retain jurisdiction.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.