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Eberhardt v. Eberhardt

September 29, 2008

CONSTANCE EBERHARDT, PLAINTIFF-RESPONDENT,
v.
ROBERT EBERHARDT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-226-05D.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2008

Before Judges Messano and Chambers.

After nearly thirty-one years of marriage, plaintiff Constance Eberhardt and defendant Robert Eberhardt were divorced on May 3, 2005. All financial issues were the subject of a property settlement agreement (PSA) entered into by the parties on March 25, 2004, and attached to the judgment of divorce (JOD). In this appeal, defendant takes issue with those portions of the motion judge's order interpreting specific provisions of the PSA in favor of plaintiff and against him.

The relevant issues were first presented in a post-judgment application filed by plaintiff to enforce various aspects of the PSA. While this resulted in an order granting plaintiff much of the relief she sought, the motion was apparently heard without notice to defendant. Therefore, on April 27, 2007, the judge entertained oral argument on defendant's request for reconsideration. In particular, defense counsel characterized the critical issues as those concerning defendant's "life insurance," his "severance package," and "the mortgages" on the former marital home. The judge reserved decision and ultimately filed an order on May 3, 2007, that resolved the other issues presented, but specifically denied defendant's requested relief without prejudice as to these three issues, and set a date for a future conference on them.

It is unclear whether any conference occurred, though plaintiff in the interim sought clarification of other provisions of the May 3, 2007 order. In any event, each party made further submissions to the judge regarding these three issues, and on August 13, 2007, the judge orally placed her findings and conclusions on the record. An order was subsequently entered on August 14, essentially denying the relief defendant sought. This appeal followed.

Because defendant's arguments on appeal, as they did below, relate to specific limited terms of the PSA, we set forth those relevant portions at length. In section twenty-two, entitled, "Life Insurance," the PSA provides,

The Wife shall be designated as irrevocable beneficiary $750,000 (sic) of all of the Husband's Merrill Lynch life insurance policies or 75% of all policies whichever is greater based on the current value (or greater if they increase). The remainder shall be allocated by Husband as he wishes.

At the time the motion judge considered these provisions, defendant had lost his job at Merrill Lynch, had remained unemployed for some twenty months before finding other work, and no longer maintained a policy of insurance through his former employer. Defendant had obtained a policy of insurance through his new employer with his ex-wife as beneficiary in the amount of $100,000 and claimed he was unable to secure any greater amount of insurance because of his age--he was more than fifty-nine years old at the time--and some prior health problems. Defendant sought the court's declaration that he was in compliance with the PSA's insurance provisions.

In section two, entitled "Marital Home," the PSA provides,

The Husband will relinquish any rights to and shall convey to Wife all of his rights, title and interest in the marital residence.... The Husband shall pay-off one half of the home equity loan that currently has a balance of approximately $100,000.00. The wife shall be solely responsible of (sic) paying off the first [] mortgage in the amount of $85,000. The Husband must pay half of the equity loan prior to the transfer of the Deed to the Wife. If the residence is sold, the Husband's obligation of repayment of the home equity loan stops, and the remainder balance of the home equity will be paid from the proceeds of the sale of the residence.

In section nineteen of the PSA, the parties agreed that

[t]he Wife will be solely responsible for the first mortgage in the amount of $85,000.00. In the event the Wife defaults on the first mortgage payment she may sell the house and pay off all liens on the marital residence. In the event she does not sell within a reasonable time, then the Husband will have the option to assume the mortgage ...


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