May 21, 2009
ELISA DANIELSON, F/K/A ELISA STRANSKY, PLAINTIFF-APPELLANT,
ALAN STRANSKY, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 lite arrearages that the court had previously directed defendant to pay under its order of July 14, 2006, but was never paid.
On March 28, 2008, the trial court entered an order granting plaintiff's motion to correct the miscalculation, and granting that part of defendant's cross-motion seeking to amend the amended judgment of divorce to account for the reimbursement, acknowledging that "[t]his part of the decision was inadvertently omitted from the executory portions of the [a]mended [j]udgment of [d]ivorce." However, the court agreed in part with plaintiff, determining that:
[w]hile it was fair, on one hand, that [d]efendant be relieved of the mortgage once he moved out of the marital home and [p]laintiff could have refinanced it, it is also only fair that she should have received some form of child support from [d]efendant, when [d]efendant moved out, through July when she finally refinanced and purchased the marital home.
The court recalculated child support at $400 per week and credited plaintiff for 30.286 weeks, for a total credit of $12,144.28; thus, reducing the amount plaintiff owed defendant from $24,129 to $12,014.72. The court entered a confirming order that day.
On appeal plaintiff argues that the trial court erred in determining that defendant had not waived his claim for reimbursement for payments made by him against the mortgage on the marital home from January through July 2007, pursuant to the waiver provision contained in the parties' trial Stipulation No. 9. Plaintiff contends that, notwithstanding that stipulation, defendant improperly included in his written trial summation argument that he was entitled to reimbursement for the mortgage payments. Plaintiff asserts that she did not argue the issue in her summation because she understood the parties had waived the issue pursuant to the stipulation. Alternatively, plaintiff argues that even if defendant had not waived the reimbursement claim, the court erred in only granting her a credit of $12,144.28 (30.286 weeks times $400 child support) against the amount of the mortgage payments ($24,129) because the record did not support a reduction of defendant's original pendente lite obligation of $8,000 per month to only $1,600 per month.
Defendant counters that he never waived his claim for reimbursement for the mortgage payments, having moved on that issue before trial, during trial and in his written summation. Defendant contends that plaintiff's argument that she was entitled to a credit of $18,870 because he had not paid the pendente lite arrearages prior to trial is without merit, asserting that pendente lite orders do not survive entry of a final judgment.
We have considered plaintiff's arguments in light of the record and applicable law, and conclude that they are without sufficient merit to warrant discussion in a written opinion. We affirm substantially for the reasons expressed in the trial court's written decision of January 25, 2008, as amended by the reasons expressed in the court's order of March 28, 2008. Nevertheless, we add the following comments. R. 2:11-3(e)(1)(A) and (E).
The portion of the record provided to us on appeal does not support plaintiff's argument that defendant waived his claim for reimbursement of the payments he made against the mortgage affecting the marital home from January through July 2007.*fn1 To the contrary, the evidence supports the trial court's determination that defendant never waived the claim. Defendant filed a pre-trial motion seeking to vacate the pendente lite order of March 10, 2006, because he had vacated the marital residence, contending that only plaintiff should be responsible for maintenance of the home. At that time, defendant had reduced his payments into the joint account from $8,000 per month to $3,800 per month. The court denied the motion without prejudice subject to reallocation at trial.
A review of the transcript of March 28, 2008, indicates that defense counsel argued the reimbursement issue at trial, and the trial court responded to his arguments. Moreover, defendant argued the issue in his written summation, without objection from plaintiff. The court decided the issue in favor of defendant notwithstanding its expressed awareness of the parties' Stipulation No. 9. Plaintiff only objected to the claim in opposition to defendant's motion for reconsideration.
Plaintiff's post-judgment argument that the trial court should have provided her with credit of $18,870 because defendant failed to pay the pendente lite arrearages as previously directed by the court is not supported by legal precedent. Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995) (holding that the general rule is "that provisions of a pendente lite order do not survive the entry of a judgment of divorce unless expressly preserved in it or reduced to judgment prior to entry of final judgment"). Here, the amended JOD did not preserve any provisions of the pendente lite order, nor did plaintiff move to enter judgment on the amount of pendente lite arrearages prior to entry of the amended JOD. We are satisfied that the trial court properly exercised its discretion in resolving the issues in dispute, and that the court's determinations are accurately supported by credible evidence in the record.