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Fox v. Fox

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 11, 2008

WILLIAM T. FOX, PLAINTIFF-RESPONDENT,
v.
DOROTHY J. FOX, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2269-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 5, 2008

Before Judges Lintner and Graves.

The parties were married on October 28, 1983, and their judgment of divorce (JOD), which incorporates a property settlement agreement (PSA), is dated February 9, 2005. Defendant Dorothy Fox appeals from two provisions in a post-judgment order dated August 3, 2007, denying her application (1) "to require plaintiff to pay alimony in the amount of $5,000"; and (2) denying her application "to place a lien on plaintiff's residence." Defendant also appeals from a subsequent order dated September 25, 2007, denying her motion for reconsideration and awarding counsel fees to plaintiff in the amount of $1100.

On appeal, defendant makes the following arguments:

POINT I

THE TRIAL JUDGE ERRED IN DENYING ORAL ARGUMENT, NECESSITATING THE FILING OF A MOTION FOR RECONSIDERATION.

POINT II

THE TRIAL JUDGE ERRED IN CITING ARTICLE VIII IN THE PSA, AND THUS NOT RECOGNIZING OR ENFORCING AN EQUITABLE DISTRIBUTION/ALIMONY PAYMENT, WHICH PRODUCED AN UNJUST RESULT.

POINT III

THE TRIAL JUDGE ERRED IN DENYING DEFENDANT TO FILE A LIS PENDENS TO SECURE FUTURE EQUITABLE DISTRIBUTION IN THE MARITAL HOME.

POINT IV

THE TRIAL JUDGE ERRED IN DENYING HER REQUEST FOR COUNSEL FEES AND ASSESSMENT OF OPPOSING COUNSEL FEES ON THE RECONSIDERATION, WITHOUT RENDERING THE REQUIRED FINDINGS OF FACT AND LAW.

After reviewing the record and the applicable law in light of the motion judge's findings and conclusions, we affirm the denial of defendant's request for a lien on plaintiff's residence, but we reverse and remand the denial of defendant's request to enforce the PSA and the award of counsel fees to plaintiff.

In response to a motion by plaintiff, William Fox, to "Compel Defendant Dorothy J. Fox to Sign QDRO's" and for other relief, defendant filed a cross-motion with eight specific requests for relief, including a request to compel plaintiff to pay her $5000 plus interest, which defendant claimed was the outstanding balance due on a payment plaintiff was required to make on December 31, 2006, pursuant to the PSA. Defendant attached a copy of the PSA to her certification, but the motion judge denied the application because defendant "failed to state with specificity the relevant provisions [of the PSA] now sought to be enforced."

In her motion for reconsideration, defendant quoted the relevant portion of Article XV of the PSA, entitled "Additional Equitable Distribution and Alimony," which obligated plaintiff to make two payments to defendant, each in the amount of $55,000, with the first payment on December 31, 2006, and the second payment on December 31, 2007. In paragraph eight of her certification dated August 23, 2007, defendant stated that she was still owed the sum of $5000 in connection with the payment that was due on December 31, 2006, and she provided the court with a copy of a letter she received from plaintiff dated January 15, 2007, which reads as follows:

Dorie, Per our prior discussion, enclosed you'll find a check in the amount of $20,000. This payment represents another installment of the [c]court [o]rdered payment due 12/31/06 as outlined in the Property Settlement Agreement. With this payment, the remaining balance against this commitment is $5000. I will continue to make payment as I am able.

Regards, William T. Fox Thus, defendant presented compelling evidence to support her claim that plaintiff owed her $5000, and, in his responding certification dated September 6, 2007, plaintiff did not deny the sum of $5000 was still due and owing in connection with the payment due on December 31, 2006. Given these circumstances, we are satisfied the court must reconsider defendant's request to enforce a portion of the PSA, and we are also convinced the court must reconsider its decision to award counsel fees to plaintiff in the amount of $1100. Contrary to plaintiff's contentions, there was no showing that defendant's motion for reconsideration was either frivolous or unreasonable.

To summarize: (1) we affirm the provision in the order of August 3, 2007, denying defendant's request to place a lien on plaintiff's residence, for the reasons stated by the motion judge; (2) we reverse and remand for reconsideration the provision in the order of August 3, 2007, denying defendant's request for a payment in the amount of $5000 plus interest; and (3) we reverse and remand for reconsideration the provision in the order of September 25, 2007, awarding counsel fees to plaintiff in the amount of $1100.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

20080611

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