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Gigantes v. Gigantes

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...


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