On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2553-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Yannotti.
Defendant Lisa M. Schmitt (defendant, or the wife) appeals from an order dated November 2, 2007, which denied her "Motion For Reconsideration Of What The Parties Agreed To In Their Settlement Agreement Of April, 30, 2007 Regarding Support Of Defendant Pending The Sale Of The Marital Home." The same order awarded counsel fees to plaintiff Karl G. Schmitt (plaintiff, or the husband) in the amount of $2500. After reviewing the record and applicable law in light of the arguments advanced by counsel, we reverse and remand for a plenary hearing. The parties were married on November 11, 1994. They have two children: a daughter, born on August 26, 1996, and a son, born August 3, 1999. Prior to their divorce, the parties entered into an "Ad Interim Order" (consent order) on May 18, 2006, which provided for the sale of the marital home. In addition, paragraphs twelve and thirteen of the consent order read as follows:
12. Karl Schmitt will continue to pay property tax, and all household bills, including but not limited to: the mortgage payable to his parents (the paternal grandparents) should they so require such payment so that the marital home does not go into foreclosure, PSE&G bill, phone bill, satellite/cable television bill, DSL bill and water bill, without prejudice to any future application by the parties. . . .
13. Karl Schmitt agrees to pay $200.00 per week to Lisa Schmitt as unallocated support, without prejudice, and with the understanding that such funds will be used in part to pay for food for the children, transportation costs for the children, and the children's clothing, without prejudice for further application by either party.
On April 30, 2007, the day their divorce trial was scheduled to commence, the parties negotiated an oral agreement, which was placed on the record. During that proceeding, counsel for the wife stated: "the present order of support will continue until the closing of the house. And Mr. Schmitt will mail the supports checks on Thursday, so that Mrs. Schmitt can get them Friday or Saturday." In addition, defendant's attorney advised the court that "other than the visitation schedule, everything else will remain until the closing of the house, other than the car insurance and health insurance."
A Final Judgment of Divorce, which did not contain the terms of the oral agreement, was entered on May 4, 2007, and the parties were directed to prepare and submit an Amended Judgment of Divorce, setting forth the terms of the settlement. See R. 5:5-9 ("When a settlement is placed on the record and a judgment of divorce is entered orally, a contemporaneous written final judgment of divorce shall be entered . . . ."); see also Entress v. Entress, 376 N.J. Super. 125, 134 (App. Div. 2005) (appending transcript of oral settlement agreement to order violates Rule 4:42-1(a)(4); rather parties must "reduce their agreement to writing"). While the parties were in substantial agreement regarding the terms of their settlement, plaintiff claimed he did not agree to continue paying the mortgage, taxes, and other household expenses as outlined in paragraph twelve of the consent order, pending the sale of the marital residence. The parties sought guidance from the court and were told to submit a proposed Amended Judgment of Divorce together with a transcript of the court proceedings on April 30, 2007. Without oral argument or a hearing, the court issued a letter on August 1, 2007, which included the following:
The [c]court has reviewed submissions from both counsel as well as the transcript of the proceeding in order to determine the terms of the Final Judgment of Divorce.
It appears that the difficulty in resolving the problem is that neither party addressed the issue of the construction of Paragraph 12 of the May 18, 2006 pendente lite [o]rder post-divorce and prior to the sale of the marital home.
Paragraph 12 essentially compels the
[p]laintiff to pay not only the mortgage and taxes but all household bills including utilities, etc. To have [p]laintiff continue to do so post-judgment while [d]efendant has the exclusive use and enjoyment of the property is unfair, especially in light of the fact ...