June 26, 2008
KEVIN P. DUFFY, PLAINTIFF-APPELLANT,
DARLENE DUFFY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-328-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 10, 2008
Before Judges Stern and Coburn.
Plaintiff appeals from an order of August 24, 2007 which denied portions of his application seeking an order requiring defendant to reimburse plaintiff for items "removed from the house," and denied his request for counsel fees. He also appeals from a portion of an order entered on September 7, 2007, which plaintiff says again denied his application for counsel fees incident to the denial of defendant's cross motion which had been carried pursuant to the August order. The September order does not expressly address counsel fees. However, the transcript of the proceedings of September 7, 2007 reflect that the judge indicated he was not going to revisit the prior order and was not awarding counsel fees, stating "let's end this thing."
On this appeal plaintiff argues "the trial court erred when it refused to hold a plenary hearing to resolve material issues surrounding equitable distribution" and "when it refused to grant plaintiff counsel fees and costs." He seeks a remand for a hearing before a different judge. Defendant has not responded to the appeal.
It appears that defendant had no access to the marital premises as a result of a domestic violence restraining order prior to the trial on the "complaint for divorce" during which they reached an agreement.*fn1 A "final judgment of divorce," was entered on March 27, 2007, and it provided for "equitable distribution" including granting plaintiff the right to purchase the house within forty-five days. A consent "Amended Judgment of Divorce," embodying the details of the parties' agreement, was submitted to the court by cover letter of April 30, 2007.*fn2
It provided among other things:
5. That the Plaintiff shall have 45 days from the date of divorce, March 27, 2007, to purchase the Defendant's interest in the former marital property or the house shall be listed for sale with a licenced New Jersey real estate broker agreed to by the parties. The Defendant's interest in the property is 50% of the equity based on an appraised value of $230,000.00. Otherwise, the home shall be listed for sale and the net proceeds divided equally between the parties. Until the property is sold.
6. The previous Orders of the Court with regard to payment of household expenses shall continue to be enforced until the property is transferred to the Husband or the property is sold.
10. That the parties shall attempt to resolve all issues related to items of personalty and household goods and effects.
If they are unable to do so within 30 days of the date of this order, they may either seek mediation or seek resolution of these issues in a Court of competent jurisdiction.
In a May 8 certification, plaintiff claimed he was denied access to the house since June 30, 2005 (he subsequently certified he attended a pre-closing inspection on May 14), and that some of the household contents were being removed. He obtained an order entered on May 11, 2007 providing, in part:
c. Both counsel shall cooperate in dividing personal property in the mar[i]tal home.
Counsel shall ensure that meaningful arrangements are made to accomplish this in short order. In the interim Defendant shall not remove any items from the marital home.
Plaintiff subsequently sought additional relief, including his motion filed July 23, 2007, (following his purchase of the marital premises on May 23) which resulted in the August order. In his accompanying certification, plaintiff details household bills which were not paid, damage to the home and "removal of household property." He requested "that the defendant be required to pay me the value of what she has taken by way of my personal possessions, and to pay me for the bills and other damages I have stated above." He also asked that counsel fees and costs be awarded on the application. As previously noted, defendant filed a cross-motion with a certification supporting her assertions in addition to disputing those asserted by plaintiff. In essence, the parties dispute whether defendant removed plaintiff's property and household contents, and stopped paying bills, between the settlement and the closing.
We remand for an evidentiary hearing. We cannot fault the motion judge for obviously trying to reduce litigation costs and expenses. We nevertheless believe that defendant has made a sufficient showing of entitlement to a hearing as to whether his reasonable expectations regarding equitable distribution, as embodied in the agreement, and particularly paragraph 10, were satisfied in light of defendant's conduct, and that there is a material dispute as to whether he received what he was entitled to under the agreement. See, e.g., Harrington v. Harrington, 281 N.J. Super. 39, 46-47 (App. Div.), certif. denied, 142 N.J. 455 (1995).
While we disagree that the judge's essential determination that no hearing was required because the parties should have itemized the property for distribution at the time of the agreement, we see no basis to remove him from the case. The issue of counsel fees should be reconsidered on the remand, together with any application with respect to this appeal. See R. 2:11-4.
The matter is remanded for proceedings consistent with this opinion.