On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-10-394-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Payne and Lyons.
This case arises from a dispute between former spouses, defendant, Linda DiLauri, and plaintiff, Anthony DiLauri. Defendant appeals an order requiring her to pay for damage she caused to the parties' marital home; denying her cross-motion for liquidated damages; and permitting plaintiff to let the parties' adult daughter's health coverage lapse. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
Plaintiff and defendant divorced on April 16, 2007. As part of their Property Settlement Agreement (PSA), which was incorporated into the judgment of divorce, the parties agreed that plaintiff was to become the sole owner of the marital home upon payment of $140,000 to defendant for her interest in the property. Plaintiff was obligated to refinance the current mortgage on the marital home no later than June 23, 2007. Defendant agreed to vacate the property by the refinancing deadline. Plaintiff was to pay $35.00 in liquidated damages for every day after June 23, 2007 that he failed to pay defendant the $140,000.
The PSA provided that defendant could reside in the marital home prior to the closing, provided she maintained it. She was responsible, under the PSA, for any damage beyond "normal wear and tear." Plaintiff was permitted to "walk through" the home prior to closing to verify that defendant had maintained the property.
On June 18, 2007, plaintiff, in anticipation of closing on the home on June 20, 2007, did such a "walk through" and determined that there was property damage. Plaintiff claims he contacted the parties' daughter and asked her to relay to defendant that he expected her to have the home "broom clean" by the closing date. Defendant contends that plaintiff made no complaints about the condition of the property on that date. On the closing date, plaintiff claims the home was "filthy, with a urine soaked carpet, missing fixtures, a broken air conditioning system, leaking roof, and damaged landscape."
Plaintiff closed on the property and on June 25, 2007, tendered a check for $130,000 to defendant, $10,000 less than agreed upon in the PSA. Plaintiff placed $10,000 in escrow in order to cover the cost of the damage to the property. Defendant claims that this was the first time she was made aware of plaintiff's dissatisfaction with the condition of the house. Plaintiff filed a notice of motion on July 24, 2007, seeking to compel defendant to pay for the damage. In support of that motion, plaintiff included his own certification, the certification of a witness, several photographs documenting the damage and several estimates and receipts for repair and cleanup work.
The parties' PSA also addressed support for the parties' daughter, who was twenty-one years old at the time plaintiff filed his notice of motion. Plaintiff agreed to cover the daughter under his insurance policy "for so long as possible."
The PSA stated that "the child may be required to provide certain information periodically" in order to maintain her coverage. In plaintiff's notice of motion, he also moved to compel defendant to provide him with documentation confirming their daughter's college enrollment. Plaintiff claimed that his insurance company required this information.
Defendant opposed the motion, arguing that the repair estimates attached to plaintiff's motion were hearsay and should not be considered. She also argued that when plaintiff accepted the deed, he accepted the property "as is" and therefore his damage claims did not survive the closing. Defendant also opposed plaintiff's request for proof of their daughter's college enrollment, arguing that the court could not compel the parties' adult daughter to provide any personal information. Defendant filed a cross-motion for damages pursuant to the PSA, arguing that the liquidated damages clause applied because she had not been paid the full $140,000 by June 23, 2007.
The motion judge held that he could consider plaintiff's receipts for the work he already had paid for because they documented the out-of-pocket damages plaintiff had paid. He also determined that plaintiff was entitled to seek relief for damage to the home after the closing because the PSA, not the law of real property, was the controlling authority.
In a written opinion, the motion judge determined that plaintiff was entitled to the following damages: $200 for the cost to remove damaged plants and shrubbery; up to $6,304.80 for the cost to replace the damaged carpet and flooring; up to $775 to replace insulation, drywall and a damaged heating unit; $71 for one-half of the cost to repair the air conditioning unit; and $800 for one-half of the cost to repair the roof of the house.
The motion judge held that defendant was immediately responsible for $1,846, which represented the current out-of-pocket expenses plaintiff had incurred and paid. The judge also found that defendant was liable for any costs for the repair of the carpet and flooring up to the $6,304.80 set forth above. However, the motion judge held that "[u]ntil the final invoice for the work on the carpets and flooring has been submitted to the defendant, the $10,000 currently ...