July 9, 2009
CAROL A. SAUER-CORWIN PLAINTIFF-RESPONDENT,
ROBERT A. SAUER, DEFENDANT-APPELLANT.
ROBERT W. SAUER AND MARILYN SAUER, HUSBAND AND WIFE, INTERVENORS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1543-93B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 31, 2009
Before Judges Wefing, Parker and Yannotti.
In this post-judgment matrimonial matter, defendant Robert A. Sauer appeals from an order entered on May 21, 2008 permitting plaintiff to buy out defendant's interest in the marital home for $70,125 and from an order entered on July 11, 2008 denying his motion for reconsideration. We affirm.
The Property Settlement Agreement (Agreement) incorporated into the parties' 1994 judgment of divorce provided the following with respect to the marital home:
Paragraph 11. As indicated previously, the Wife shall stay in the marital home with the unemancipated children of the marriage until such time as either the last child is emancipated, or the Wife chooses to sell the residence. Until that time, besides paying all the expenses as noted above, the Husband shall be responsible to pay for any improvement or repair to the marital home which totals more than $100. The Husband shall receive notice as to any expense over $100 except for an emergency. The Husband shall receive credit for said payments at the time of the sale of the marital home. If the Wife chooses to make any improvements or repair to the marital home on her own, then she shall likewise be entitled to a credit at the time the marital home is sold. Wife has exclusive possession of the marital home until sale.
In May 2004, plaintiff refinanced the marital home by obtaining a thirty-year $176,000 adjustable rate mortgage. Plaintiff and defendant received $57,983.99 from the refinancing, plus a refund of $1,053.76 in paid taxes. On May 12, 2004, plaintiff gave defendant $33,000 "as a partial payout of monies owed" from the marital home. Defendant agreed to pay $158 of monthly interest on the $33,000 until the marital home was sold. In February 2006, the trial court granted plaintiff's motion to sell the marital home. Defendant was given the option of buying plaintiff's interest and was obligated to continue paying the mortgage until the home was sold. The order also allowed defendant to buy out plaintiff's interest by refinancing the current mortgage and paying her $111,000.
Defendant indicated that he wanted to buy plaintiff's interest, using an appraisal of $384,275. In March 2006, plaintiff countered with an appraisal of $440,000. The parties could not agree on the home's value and sought another appraisal in April 2006, which valued the home at $480,000. Based upon the last appraisal, the parties agreed to list the home for sale.
In May 2006, plaintiff notified defendant that Coldwell Banker would list the home for $480,000, but defendant changed his mind, claiming he wanted to buy plaintiff's interest. In August 2006, the home was appraised at $440,000 and the parties agreed that defendant would buy plaintiff's interest at that price.
Defendant's parents allowed him to borrow against their home to purchase plaintiff's interest. In return for his parents' allowing him to borrow against their home, defendant agreed that their home would be placed in his name; he would immediately refinance it and use the proceeds to purchase the marital home; then he would immediately refurbish and sell the marital home and transfer his parents' home back to them clear of all liens and encumbrances.
In January 2007, plaintiff sought a buyout amount of $121,000, including credits due to her under the settlement agreement. Defendant did not respond to her request and, according to his parents, misappropriated the refinancing funds from his parents' home. In October 2007, his parents filed a complaint in the Law Division alleging theft by deception against defendant, his girlfriend Meri Deter and Wachovia Bank, N.A. (Wachovia).
In February 2008 -- two years after plaintiff was granted the right to sell the marital home -- defendant had still not taken any steps to purchase plaintiff's interest and plaintiff moved to purchase his interest in the marital home. Appended to her motion were her calculations by which she came to set $70,125 as the amount due to defendant to buy out his interest. Those calculations are as follows:
1/21/2008 Appraisal Value of Marital Home380,000.00
Mortgage Balance 177,645.28 Plaintiff's Net Equity202,354.72
Plaintiff's Share of Net Equity (202,354.72/2)101,177.00
Defendant's Share of Net Equity101,777.00
Defendant's Interest in the Home88,500.00
Defendant's Total Interest in the Home189,677.00
Defendant's Portion of $30,000 Outstanding Mortgage(15,000.00)
Defendant's Portion of the 2004 Refinance(33,000.00)
Defendant's Past Due Interest Payments(6,952.00)
Defendant's Responsibility for Home Improvement(19,000.00)
Defendant's 50% Share of Children's Medical Expenses(3,049.00)
Defendant's Responsibility for Mortgage Payments(31,776.00)
Defendant's Responsibility for the Lien(10,000.00)
Defendant's Initial Responsibility for Initial Appraisal(325.00)
Defendant's Cost of Updated Appraisal(225.00)
Defendant's 50% Share of Oil Tank Inspection(225.00)
Total Credits due Plaintiff(119,552.00)
Defendant's Total Interest in the Home189,677.00
Total Credits due Plaintiff(119,552.00)
Plaintiff's Buyout Amount of Defendant's Interest70,125.00
Defendant did not respond to the motion and on May 21, 2008, the trial court entered an order granting plaintiff's motion to buy out defendant's interest for $70,125. Defendant's parents moved to intervene in the Family Part action pursuant to Rule 4:33-1 and sought a constructive trust over the proceeds from plaintiff's purchase of defendant's interest in the marital home. The trial court granted that application, and ordered defendant's net proceeds to be held in escrow pending disposition of his parents' suit pending in the Law Division.
On June 17, 2008, defendant moved for reconsideration of the May 21, 2008 order. On July 11, 2008, defendant's motion for reconsideration was denied. In its decision, the trial court stated that defendant failed to submit his opposition to plaintiff's motion and that it did "not find any reason here to alter or amend the order . . . filed on May 21, 2008."
In this appeal, defendant argues that the trial court erred in (1) denying his motion for reconsideration; (2) denying him due process of law by interfering with his property interest without a hearing; and (3) permitting his parents to intervene in order to recover their interest in the property they transferred to him to allow him to purchase plaintiff's interest in the marital home.
Defendant first argues that the trial court erred in denying his motion for reconsideration. He concedes that his motion was "technically deficient" for not pointing out the errors in plaintiff's calculation of the buyout amount but claims that those errors were pointed out during oral argument.
Defendant maintains that the trial court should have accepted his representations -- absent supporting documentation -- at oral argument and granted his motion.
Plaintiff argues in response that the trial court properly denied plaintiff's motion for reconsideration because it was not filed timely; defendant did not provide a controlling decision which would have required the trial court to amend its prior decision; and defendant did not provide any evidence to support his claims that plaintiff's calculations were in error. We agree with plaintiff's position.
Defendant's conduct between February 2006 when plaintiff first moved to sell the marital home and July 2008 when he made his motion for reconsideration is nothing less than dilatory. Defendant failed to comply with any of the trial court's prior orders, he failed to respond to plaintiff's several attempts to list the marital home for sale while the market was strong or to purchase plaintiff's interest.
The decision to deny a motion for reconsideration is left to the discretion of the trial court. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div. 2002). In the court's written statement of reasons appended to the May 21, 2008 order granting plaintiff's motion, the court noted by that time, the market value of the home had decreased from $440,000, when defendant initially agreed to purchase plaintiff's interest, to $380,000. Plaintiff based her application on the lower amount, notwithstanding defendant's delay, causing her a loss in the sale price. The court further noted that "[p]laintiff provides back-up information for her requests. Plaintiff calculates that she owes the defendant the sum of $70,125 to buy out his interest in the former marital residence."
Plaintiff filed her motion to purchase defendant's interest on February 7, 2008. The matter was not heard and decided until May 21. In its decision on defendant's motion for reconsideration, the trial court specifically addressed defendant's argument that he had attempted to have plaintiff's original motion adjourned. The court noted that even though defendant's request for an adjournment was granted, he still did not submit opposition papers timely. The court indicated that the judge to whom the motion was originally assigned was transferred to another county and the motion was not heard for a lengthy period of time. Still, defendant failed to submit opposition papers.*fn1
Moreover, the court noted that defendant did not even submit a letter indicating why he thought plaintiff's buyout figure was incorrect. Defendant's representations during argument regarding the buyout amount were not supported by proofs.
In this appeal, defendant attempts to submit documentation to us that was never submitted to the trial court for its consideration. We will not, however, consider issues or evidence that was not properly presented to the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Pressler, Current N.J. Court Rules, comment on R. 2:6-2.
Defendant's argument that he has been denied due process of law is completely without merit. Defendant had every opportunity to engage in negotiations and subsequently to respond to plaintiff's motion which was filed in February 2008 and not heard until May 2008. Even in his motion for reconsideration, defendant failed to present the necessary proofs to support his claims. A litigant cannot simply sit on his rights and then claim that his rights have been denied by the court. C.K. v. J.G., 306 N.J. Super. 214, 239 (Ch. Div. 1997).
We also find no merit in defendant's argument that the trial court erred in permitting his parents to intervene in the action. The trial court simply allowed defendant's parents to intervene for the purpose of securing the proceeds from the sale of his interest in the marital home pending the outcome of the Law Division action. This is highly unlikely to lead to inconsistent or diverse results, as defendant argues. It merely protects his parents' interest.