On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FM-18-472-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 6, 2009
Before Judges Fuentes and Gilroy.
Plaintiff Elisa Danielson, f/k/a Elisa Stransky, appeals from that part of the March 28, 2008 order directing her to pay defendant Alan Stransky $12,014.72 as partial reimbursement for payments defendant made toward the first mortgage on the marital home pendente lite. We affirm.
Three children were born of the parties' marriage: a daughter, born August 1987; and two sons, born June 1990, and February 1995. On November 10, 2005, plaintiff filed a complaint for divorce. In January 2006, plaintiff filed a motion for pendente lite support. On March 10, 2006, the court entered an order directing defendant to pay $8,000 into the parties' joint checking account as unallocated pendente lite support. The court also directed plaintiff to pay $5,000 into the account toward expenses for the marital home.
Defendant failed to comply with the terms of the pendente lite order. From January 2006 through December 2006, defendant paid an average of $6,000 per month into the joint account. After September 2006, defendant reduced his monthly payments to $3,800 a month. In the interim, on July 14, 2006, the court entered an order directing that both parties comply with the March 10, 2006 order and requiring defendant to deposit $18,870.69 pendente lite support arrearages into the joint account.
In October or November 2006, the parties agreed that plaintiff would buy-out defendant's equitable interest in the marital home. On December 31, 2006, defendant moved out of the residence. In February 2007, defendant filed a motion seeking to vacate that part of the March 10, 2006 order requiring him to pay $8,000 per month in pendente lite support, contending that because he had vacated the marital home, plaintiff was responsible for the expenses of maintaining the home. On February 16, 2007, the court denied defendant's motion without prejudice, reasoning that pendente lite obligations are without prejudice to reallocation at time of trial.
The matter was tried over seven days between May 21 and October 29, 2007. During the trial, the parties entered into fourteen stipulations of fact. Stipulation No. 9 provided: "Each party waives any right to reimbursement for pendente lite contributions that were supposed to have been made to the joint household account pursuant to the pendente lite order of this court."
On January 25, 2008, following receipt of written summations of counsel, the trial court issued a thirty-seven page written decision addressing the issues of equitable distribution, child support, custody and parenting time. After noting the parties' stipulations, the court found in part that defendant had moved out of the marital home in the beginning of 2007, but continued to make the first mortgage payment of $3,447 on the home through July 2007. In addition, the court determined that plaintiff could have refinanced the marital residence as early as January 2007. Specifically, the court explained:
[Plaintiff] had the ability to re[-]mortgage [on January 1, 2007] and [defendant] was no longer receiving any of the benefit of the house. He was contributing to a household account, per the pendente lite order, or later paying bills in lieu of child support until closing on the refinance. After the refinance in July 2007 he made regular monthly child support payments. [Plaintiff] was making more money than [defendant] in 2007, and he had a home of his own to carry once he moved. The court concludes that he had no obligation under the circumstances to pay [plaintiff's] mortgage after he moved out.
Accordingly, the court directed that plaintiff reimburse defendant $24,129 for the payments made by him against the first mortgage on the marital home from January through July 2007. On February 6, 2008, the court entered an amended JOD, intending to incorporate all its findings and conclusions as set forth in its written opinion. Unfortunately, the amended JOD did not contain a provision directing plaintiff to reimburse defendant for the mortgage payments made by him from January through July 2007.
On February 19, 2008, plaintiff filed a motion for reconsideration, seeking to correct Paragraph 5a that determined the parties' equitable interests in the marital home. Particularly, plaintiff sought to reduce the amount owed by her to defendant for his equitable share in the marital home, contending that the court had improperly calculated the parties' interest in the home by deducting the full amount of a second mortgage, $75,639, from the home's gross value, when the obligation on that mortgage belonged solely to defendant. Defendant did not oppose plaintiff's motion; rather, defendant filed a cross-motion for reconsideration, seeking among other matters, to amend the order of February 6, 2008, requiring plaintiff to reimburse him for all payments made by him toward the first mortgage on the marital home for the months of January through and including July 2007, in the amount of $24,129 as set forth in the court's written decision, but which was not included in the amended JOD.
Plaintiff opposed defendant's cross-motion, arguing that at trial the parties had stipulated not to seek any setoffs, for pendente lite credits owed to either party. Plaintiff contended that by granting defendant the requested reimbursement, the court is "effectively saying that he didn't have to pay anything in [the] form of child support or otherwise for that period." Alternatively, plaintiff requested that any mortgage reimbursement be set off against the $18,870 in pendente ...