August 13, 2008
MARK PIERCE, PLAINTIFF-APPELLANT,
ROSEMARY PIERCE, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-320-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 28, 2008
Before Judges Fuentes and Chambers.
Plaintiff Mark Pierce appeals from the order of the Family Part denying his post-judgment motion seeking compensation from his former wife, defendant Rosemarie Pierce (now McMahon), for damages she allegedly caused to the marital residence. Plaintiff also requested that the court credit payments he made to payoff a car loan for a vehicle owned by defendant, against monies he owes her. These two items were part of twelve issues raised by plaintiff in his post-judgment motion. Defendant filed a cross-motion responding to plaintiff's claims, and raised eleven separate items requesting affirmative relief.
The court heard oral argument on the motion and cross-motion, and thereafter entered a comprehensive order disposing of all of the issues raised by the parties. Plaintiff now appeals arguing that the court erred by failing to conduct an evidentiary hearing to resolve the conflicting factual contentions made by the parties in their respective certifications in support of their motions.
After reviewing the record before us, we agree that the trial court should have conducted an evidentiary hearing to resolve the factual disputes. We are thus compelled to remand this matter for further proceedings.
The parties were married in November 2002, and divorced less than five years later on May 14, 2007. No children were born of the marriage. When they separated, defendant remained in possession of the marital residence. As part of a property settlement agreement incorporated in and made a part of the judgment of divorce, defendant agreed to vacate the marital residence, thus allowing plaintiff to return to the property.
She also agreed to execute a deed transferring all of her interest in the property to plaintiff, in return for a lump sum payment of $13,250.
According to plaintiff, when he returned to the former marital residence he found that defendant "had trashed the place." In a certification in support of his motion for compensation, plaintiff claimed that "[t]he house was filthy, there was trash everywhere, spoiled food left in the refrigerator, dirty dishes in the sink, stains all over the carpets and excessive amounts of dog hair throughout the house. The grass was 10 inches high. The cost of repairing the damage [wa]s $2,585."
In her certification in response, defendant denied that she did anything to damage the property. Specifically, defendant stated:
I fully expected these false allegations from the Plaintiff and had hoped to take pictures of the house before I left. Unfortunately, I was served with a Temporary Restraining Order just as I was scheduled to leave New Jersey and, after that, I had no time to take the pictures before I left.
The pictures would have shown that the allegations made by the Plaintiff were lies. Attached here to as Exhibit J is a letter from our former neighbor confirming that nothing in the house was damaged or broken.
Based only on these conflicting certifications, the motion judge made the following findings:
The Court finds that the Plaintiff has made an application for reimbursement of cleaning and repair expenses, incurred as a result of the Defendant's alleged neglect of the former marital property. The Court finds that the Plaintiff asserts these expenses were necessary to remedy; un-cut grass, soiled carpets, necessary household cleaning, dead shrubs, etc. The Court finds that that Plaintiff has provided the Court with no more than mere assertion indicating that the Defendant acted maliciously or that these expenses were in fact necessary. Therefore, the Plaintiff's application for reimbursement of these expenses is DENIED.
It is well-settled that when confronted with "warring certifications," a trial court should conduct a plenary hearing to resolve the factual dispute. Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006). Here, a hearing where testimony is taken and submitted to the rigors of cross-examination is the only to way to develop a record from which factual findings can be made. The parties' irreconcilable positions leave no room for any other form of resolution.
We therefore remand for the trial court to conduct an evidentiary hearing on the question of the amount of credit, if any, plaintiff is entitled to receive for: (1) damages to the former marital residence allegedly caused by defendant; and (2) credit for payments made by plaintiff toward the car loan. Once these issues have been resolved, the trial court may reconsider awarding counsel fees to the prevailing party.
Reversed and remanded.
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