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Duffy v. Duffy

June 26, 2008

KEVIN P. DUFFY, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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