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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...