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Tinfow v. Tinfow

March 6, 2009

CARY TINFOW, PLAINTIFF-APPELLANT,
v.
DEBORAH TINFOW, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1488-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 21, 2009

Before Judges Fuentes and Gilroy.

Plaintiff Cary Tinfow appeals from the April 25, 2008 order of the Family Part. For reasons that follow, we affirm.

I.

Plaintiff and defendant Deborah Tinfow were married on June 15, 1991, and divorced on June 19, 2007. Two children were born of the marriage: a son in 1993 and a daughter in 1995. On the day of divorce, the parties entered into a Matrimonial Settlement Agreement (the agreement). The agreement contained provisions directing the immediate sale of the parties' marital home in North Caldwell; a summer home in Lavallette; and a condominium unit in Dover Township.

On March 14, 2008, defendant filed a motion seeking to have the future sale proceeds from the North Caldwell and Lavallette properties placed in escrow. Plaintiff cross-moved, requesting reimbursement of the principal he paid against the mortgages on those properties between June 2007 and April 2008.*fn1 On April 25, 2008, the trial court entered an order resolving the issue of monies plaintiff owed to defendant and denying plaintiff's motion for return of the principal he paid against the two mortgages. It is from this order that plaintiff appeals.

II.

Pursuant to section X of the agreement, entitled "Distribution of Property," the parties' agreed to sell their three properties. As to the home in North Caldwell, the property was to be "immediately listed and sold", with each party "receiv[ing] 50% of the proceeds." With regard to the home in Lavallette, the property was also to be immediately listed for sale and the proceeds shared equally. In addition, the properties were to be sold "at a price suggested by the realtor[s]." If the parties could not agree to a reduction in sale price for either home, the matter was to be submitted to a retired judge for a binding determination; however, under the agreement, the parties were to cooperate with the sale of the properties and not "act in any way which would adversely [a]ffect the value of the propert[ies]."

The third property was a condominium unit, with plaintiff and defendant individually owning a one-third interest, and defendant's mother owning the remaining interest. Upon sale of the condominium unit, plaintiff and defendant were each to receive one-third of the sale proceeds.

Section II of the agreement, entitled "Support until First Parcel of Real Estate Sells," provided in relevant part:

Until the closing of the marital home, the pendente lite support orders dated February 24, 2006 and November 3, 2006 shall remain in effect. Thereafter, the alimony and child support provisions herein shall be in effect. If the closing of the marital home takes place prior to the sale of the beach house, the [plaintiff] shall continue to pay all schedule A expenses relative to the beach house until its sale.

The February 24, 2006 pendente lite order provided that plaintiff "shall pay Schedule A [and] B for the parties. Plaintiff will pay his Schedule C expenses." In addition, plaintiff was directed to pay defendant $900 per week in pendente lite unallocated support, and an additional $1,000 on the first day of each month.

Further, the November 3, 2006 pendente lite order required plaintiff to pay defendant $2,300 each month "so that she can pay her Schedule A [and] B expenses not [paid] directly by plaintiff as per the order of February 24, 2006." Pursuant to the Family Part Case Information Statement contained in Appendix V of the N.J. Court Rules, the monthly expenses specified in Part D, Schedule A include payment of any mortgages, in addition to real estate taxes, homeowners insurance, home equity loans, and other household maintenance expenses.

Upon the sale of the North Caldwell home, plaintiff was to commence paying defendant permanent alimony at $165,000 per year for the first three years, and $150,000 per year thereafter. According to plaintiff, before the sale of the North Caldwell property, he paid significantly more per month, pre-tax, to defendant, then he paid after the sale.

The condominium unit sold shortly after the agreement was executed and is not the subject of this appeal. However, the North Caldwell and Lavallette properties became the subjects of considerable litigation after the parties executed the agreement. The first issue concerned the Lavallette property. On July 25, 2007, the court granted defendant's order to show cause (OTSC) seeking to de-list the beach house for a period of ten days "to allow the defendant to obtain a home equity loan on the property . . . pursuant to paragraph 38 of the parties [agreement]." Defendant, however, never proceeded with the loan application.

The second issue concerned the realtors' recommendations to lower the listing sale prices on the two properties. Because the parties were unable to agree on price reductions, plaintiff filed a motion on September 12, 2007, seeking, among other matters, an order compelling such reductions. However, before the hearing date, defendant agreed to reduce the listing price on the North Caldwell home. By order of October 19, 2007, supported by an oral decision, the court denied plaintiff's motion for an immediate reduction in the listing price of the Lavallette home, subject to review in the spring of 2008.

On November 29, 2007, plaintiff appealed the October 19, 2007 order denying his motion for a reduction in the listing price of the Lavallette home, but he later withdrew that appeal when the court scheduled the parties to appear for a further hearing on the issue. On February 6, 2008, the trial court entered an order providing in part that "[t]he parties agree to list the shore home . . . at a listing price of [$]1,349,900." On March 14, 2008, shortly before the Lavallette home was scheduled to close, defendant filed a motion seeking to place plaintiff's share of the sale proceeds from both the North Caldwell and Lavallette properties into escrow, until plaintiff paid her monies owed under the agreement and pendente lite orders. Plaintiff cross-moved, requesting, among other matters, that he be paid first from the proceeds of the sale of the two properties the sum of ...


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