November 16, 2009
JUDNEY JOSEPH, PLAINTIFF-APPELLANT,
GWENDOLYN DENNIS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4175-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 21, 2009
Before Judges Sabatino and J.N. Harris.
This appeal highlights the dangers that lurk within transactions that rely upon human memory, are steeped in informality, and bank upon alleged oral promises for their vitality. It also is a poignant reminder that no good deed goes unpunished.
Plaintiff Judney Joseph (Joseph) claims that he was a joint venturer, along with defendant Gwendolyn Dennis (Dennis), in the purchase of a house that was to be used for Dennis's family residence. Joseph - doing a favor for Dennis - lent his name, credit rating, and risk capacity towards the acquisition of real property in Plainfield in exchange for what he thought was an unwritten fifty percent interest. However, he was no silent partner. Joseph not only co-signed the purchase money mortgage and note, but was also listed as a grantee on the deed.
Dennis acknowledged that Joseph's participation facilitated the transaction, but argued that Joseph was merely an accommodation party and gratuitous moneylender. Dennis contended that Joseph was entitled to nothing as a matter law, and morally no more than, as Dennis testified, "some shape of money."
Because the parties could not agree upon Joseph's putative share in the realty, Joseph filed a partition action in the Law Division. Dennis counterclaimed with a cause of action that sought to quiet title in the property in her name alone. After a bench trial, Judge Ross R. Anzaldi determined that Joseph legally was not entitled to anything more than repayment of a loan for $1,500 plus accrued interest, but noted:
What defendant does to meet her moral obligation in response to plaintiff's charitable conduct will rest solely with the defendant. This court will make no recommendation and will leave the defendant to grapple with her own [conscience]. [(Emphasis added).]
Judge Anzaldi dismissed the partition action, ordered repayment of the loan, and declared that title was to be held in Dennis's name only. This appeal followed.
In 1998, Dennis rented the first floor of a dwelling located in Plainfield. She wished to purchase the entire property, but could not qualify for a mortgage on her own. She applied for financing, and to that end, she enlisted her husband and her pastor as co-signatories. Nevertheless, that mortgage application was denied.
Thereafter, Kelvin Joseph (Kelvin), Dennis's son-in-law and Joseph's first cousin, suggested that Joseph might help to qualify for a mortgage, because Joseph had afforded Kelvin similar assistance in the past. Dennis, with her daughter Stacey Hillhouse (Hillhouse) (who managed her mother's financial matters), called Joseph to ask if he would co-sign a mortgage to acquire a house. Hillhouse testified:
With my mom, since she doesn't understand a lot of what's going on and everything, we asked him if he could co[-]sign. And after awhile we'll make sure that his name is off so he - nothing would go wrong with his credit.
According to Joseph, Dennis and Hillhouse called him to ask if he were interested in investing in the property. He told them that he needed to view the property, and testified that he ultimately visited the house several times prior to the closing:
After Mrs. Dennis came on the phone, she was telling me about the property. She told me that we can invest together. I said I have to see the property first. Before I ever do anything investment, I went to the property approximately, I believe, three to four times.
Dennis denied that she indicated that the house would be a profit-oriented investment opportunity for Joseph. Instead, she viewed the joint acquisition solely as a permanent home for herself and her children: "When my kids come and see me, that they can also go to sleep." As for Joseph, she felt that he was merely performing a good deed. According to Dennis, when she and Hillhouse called Joseph, he readily agreed to co-sign the mortgage, and did not ask about other details concerning the property. In Dennis's words, "I ask him if he would co[-]sign for me. He say no problem. He say when I'm ready to let him know."
Hillhouse testified that she "did most of the talking" because her mother did not "understand a lot of what's going on and everything." Dennis conceded as much, admitting that she did "not know the price [of the house]. Everything go[es] through my daughter. My daughter know[s] everything."
Hillhouse noted that, in the future, when Hillhouse obtained her immigration green card, the plan was to ultimately transfer ownership of the house to Hillhouse and refinance the mortgage. It was anticipated that Joseph's name would be removed from the title and his obligations under the purchase money mortgage would be extinguished.
Dennis contends that neither Hillhouse nor Dennis offered, nor did Joseph request, anything in return for being a cosignatory on the financing. Dennis claims that she told Joseph:
Well, I - I tell him when his name time to come off I will give him some shape of money. I don't know how much, but I'll give him some shape of money. I don't know.
The parties never discussed the amount, but Dennis testified that she considered "some shape of money" to mean "[m]aybe $10,000, something, just to have his name there. I don't know."
The contract of sale for the property was dated October 20, 1999, but was not signed by the parties until months later, in July 2000. Joseph claimed that when he signed the contract he believed that he was a "half owner of the property." He stressed that he and Dennis spoke frequently in the months leading up to the closing, and discussed the house's living arrangements, rentals, taxation issues, and the need for repairs and other home improvements. Joseph never intended to live in the property, and understood that Dennis would remain in occupancy of the first floor, while Joseph's cousin Kelvin and Dennis's daughter, Lorraine, would live on the second floor, and Hillhouse would reside on the third floor.
Dennis asserted that Joseph did not pay for any of the pre-closing fees and expenses associated with the transaction. Instead, she claimed that she used "box money" held by her pastor's mother to fund these costs. "Box money," also called "partner money," consisted of funds drawn from a shared system of forced savings that Joseph, also familiar with the informal practice from Antigua, described:
It's like we pay like $120 a week, which is a check of all our money. And it's, it's go like, if all of use draw box money like, 1, 2, 3, 4, 5 of us, and we draw $20, one week you get it, one week the other guy get it; the other person get it, something like that; it goes around until everybody get it.
The real estate transaction closed on September 15, 2000, at the office of an attorney hired by Dennis. Joseph was purportedly instructed by Dennis to bring $3,461 to the closing as his share of the balance due. Joseph produced his bank records to try to show that he made multiple withdrawals, which he testified were intended to cover his portion of the balance due: $1,600 on June 2, 2000, $700 on July 21, 2000, and $1,000 on August 19, 2000. Joseph explained that he did not withdraw the entire $3,461, because he had planned to make up the difference with his own "box money," which he kept at home.
Shortly before the closing occurred, Dennis learned that she needed additional, unexpected sums in order to complete the transaction, in the amounts of $1,000 plus $1,500. Kelvin, her son-in-law and an intended resident in the house, gave Dennis $1,000 in cash. Joseph agreed to lend Dennis the remaining $1,500 at the closing, which he did. Joseph testified that in the memo portion of his $1,500 check, made payable to Hillhouse, was written, "1500 loan to Gwendolyn, closing."
The deed that conveyed the property listed both Joseph and Dennis as grantees. A copy of the mortgage agreement was not part of the trial record, but Joseph's joint liability for the purchase money loan is not disputed.
According to Joseph, after the closing, he and Dennis spoke "every weekend" about the property, mostly discussing delinquent rentals. Joseph admittedly never attempted to collect rent, and it was not until several years later that he requested an accounting of the income generated by the property.
At that time, according to Joseph, Hillhouse contacted him about refinancing the property to take advantage of lower interest rates. A second motive in the refinancing allegedly was to facilitate the removal of Dennis from ownership because "she was going to divorce her husband," and to add Hillhouse's name instead as the sole nominal owner. During the refinancing process, Joseph learned that Dennis, in fact, planned to increase the amount borrowed by $25,000, prepay the purchase money mortgage, and use the excess liquidity to "pay off her bills." He refused to cooperate any further with the restructuring because:
I'm not going to sign for something that I didn't know about. They was making different arrangements behind my back. They was going to take out $25,000.
In contrast, Hillhouse testified that she and her mother did not discuss the property with Joseph after the closing until they contacted him in order to "get his name off" the title by refinancing the mortgage. Hillhouse said that Joseph had attended a meeting with the mortgage refinancing representative, and that he knew Dennis had planned to borrow excess funds to repair the windows and the roof. Shortly after their meeting, Hillhouse became aware that Joseph refused to sign the necessary documents:
And Kelvin came back and told me, look, I don't know what's going on, but Judney decided that he wasn't going to sign the paper. If I were you I would try to find out what's going on. I called a couple of times. He never returned my calls.
She ultimately realized that something was wrong "when he started to change the address of the mortgage and change the name and everything on the mortgage. He'll call the mortgage company and change the address and say he's the owner, not my mother."
Dennis and Hillhouse claimed that they instructed Kelvin to deliver $500 in cash to Joseph, representing partial repayment of the $1,500 that Dennis had borrowed from Joseph at the closing. Kelvin confirmed that he delivered the funds to Joseph. However, Joseph denied receiving $500 from anyone, and stated that Dennis still owed him, at the very least, the full $1,500.
On November 22, 2005, Joseph filed the complaint against Dennis for partition remedies relating to the property. Dennis filed an answer and counterclaim that sought a declaration of full ownership of the property, together with unspecified damages. The parties had a full opportunity to engage in discovery in the usual course during the litigation. After the discovery period expired, the case proceeded to trial.
On the date scheduled for trial, the parties agreed to waive their rights to a jury trial and to sever Joseph's partition action from the balance of the case. The trial judge described it as follows:
The parties agreed also that, in effect, the case would be, the legal term means bifurcated, but it means just divided, and that the first area of testimony will be concerning whether or not the plaintiff has an interest in the subject property. And, if the answer to that is no, the case, again, would be concluded. If the answer is yes, then we would deal with what we should do, valuation, credits, setoffs, things like that.
The first phase of the trial proceeded on July 9 and July 10, 2008. On September 4, 2008, Judge Anzaldi issued a written opinion in favor of Dennis, declaring that Joseph was neither a joint investor, nor entitled to a legal or equitable interest in the real property. Regarding the credibility of the parties, the judge stated:
Plaintiff and Defendant entered into the arrangement for the purchase of the subject property in order to allow the Defendant to obtain said property for herself and her family. All of the credible evidence supports that the Plaintiff merely allowed his name to be used and his good credit provided in order to accomplish that end. I do not find his testimony credible and certainly not supported by the preponderance of the evidence that there was any arrangement other than his lending his credit and name so that the Defendant could acquire title to this property. [(Emphasis added).]
The court further held, "I find that the Plaintiff's testimony is not credible as it pertains to any other understanding than a simple accommodation."
Thus, the trial judge determined, in so many words, that the rebuttable presumption of equal ownership in the subject property had been overcome. He concluded that Joseph was a mere lender who was owed $1,500 by Dennis. He discounted the testimony that $500 had already been paid on the loan. Finally, he fashioned a remedy in order to validate Dennis's sole ownership by giving her 100 days to refinance the property and "remov[e] Plaintiff's name on the mortgage and title." An order dated September 22, 2008, memorialized the trial court's decision. It was received by the attorneys for the parties no later than September 29, 2008.
On October 17, 2008, Joseph mailed motions to the court styled as seeking reconsideration pursuant to Rule 4:49-2 and relief from the final judgment pursuant to Rule 4:50-1. The ground for so moving was distilled into an argument that the court failed to consider $6,231.75 - comprised of five mortgage payments - that Joseph allegedly made in 2005. Joseph contended that he did not submit this evidence during the trial because of the alleged limited scope of the proceedings. Furthermore, evidence of these mortgage payments was not disclosed during the discovery phase of the litigation. The trial court reserved decision on Joseph's motion for reconsideration and for relief from the judgment.
On October 29, 2008, Dennis filed an emergent application to compel Joseph to execute the mortgage refinancing documents consistent with the court's prior order. On October 30, 2008, the court directed that a third party be granted power of attorney to execute the deed and any mortgage documents on Joseph's behalf. Joseph requested a stay of the trial court's judgment pending appeal, which was denied. An order to that effect was entered on November 12, 2008.
On November 6, 2008 - before Judge Anzaldi ruled on the pending motions for reconsideration and relief from the judgment - Joseph filed a notice of appeal challenging the final judgment of September 22, 2008. Notwithstanding the trial court's automatic loss of jurisdiction pursuant to Rule 2:9-1, Judge Anzaldi (presumably unaware of the filing of the notice of appeal) proceeded to deny Joseph's motions for reconsideration and relief from final judgment through the execution of an order dated November 21, 2008. Judge Anzaldi held that the reconsideration motion was untimely and that Joseph did not demonstrate that the mortgage payments were newly discovered evidence warranting relief from the judgment. On December 9, 2008, Joseph filed an amended notice of appeal to seek redress from this last determination.
Joseph raised numerous arguments in this appeal. First, he argued that the trial court incorrectly reallocated the burden of proof by requiring him to demonstrate his ownership interest in the property instead of starting with the rebuttable presumption of co-tenancy. Second, he averred that Dennis's admission of intending to give Joseph "some shape of money" compelled a finding in his favor of an equitable interest in the property. Third, Joseph claimed that the trial court's overall determination eviscerated the purchase money mortgage and "undermine[d] the business of mortgage brokers." Fourth, Joseph asserted that the trial judge incorrectly failed to acknowledge that payments made by Joseph to facilitate the acquisition should have engendered a share of equity in the property. Fifth, Joseph contended that his motions for reconsideration and relief from the judgment were imperfectly decided and the trial court should have considered the newly-produced evidence of Joseph's 2005 mortgage payments. Finally, Joseph complained that the trial court did not conduct an accounting of each party's debits and credits for the property.
After a careful review of the record and analysis of the testimonial and documentary evidence, we are firmly convinced that an adjustment of the judgment made by Judge Anzaldi is unwarranted. The trial court's exercise of its fact-finding powers was unexceptionable, its rejection of Joseph's belated evidence of mortgage payments was appropriate, and its tailored judgment was a fitting implementation of equitable discretion pursuant to lawful authority.
We start with the recognition that without being a rubber stamp, it is imperative for an appellate court to give appropriate deference to a trial judge's findings of fact, especially on issues of credibility, McElwee v. Boro. of Fieldsboro, 400 N.J. Super. 388, 397 (App. Div. 2008) (noting that an appellate court must give "deference to the findings of the trial judge . . . where . . . the findings are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.") (internal quotations omitted). However, findings by a trial judge should be supported "by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Our function on appeal is limited, as "'we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so . . . inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).
We do not, however, owe deference to "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts." State v. Barrow, 408 N.J. Super. 509, 516 (App. Div. 2009) (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
In this case, we are convinced that the trial judge's findings were supported by "competent, relevant or reasonably credible evidence." Rova Farms Resort, Inc., supra, 65 N.J. at 484. We are further convinced that the judge considered the relevant legal principles in light of the facts that were presented by the parties. His credibility findings, perhaps more than anything else, animated his final determinations. Consequently, we have no occasion to undo his able work.
It is settled law in New Jersey that "as between or among tenants in common, partition may normally be had as of course." Newman v. Chase, 70 N.J. 254, 261 (1976). Reliance for partition is sometimes placed on N.J.S.A. 2A:56-1, "[b]ut partition is also an ancient head of equity jurisdiction, an inherent power of the court independent of statutory grant." Id. at 263. Utilizing the broad array of equitable authority at its disposal, the trial court did not misallocate or neglect to resolve the parties' respective burdens of proof.
Joseph claims that the trial court focused only upon whether he had demonstrated an entitlement to an interest in the real property, "erroneously decid[ing] this matter with an 'all or nothing' analysis." From our observation of the record, we cannot agree with Joseph's point of view.
The trial court considered the evidence from both sides, weighed it in the crucible of credibility, and found Joseph's version of the parties' arrangement lacking. This does not bespeak an abdication of the duty to assess the quality of Dennis's evidence. The trial court's analysis, under the lens of the totality of the circumstances, fairly addressed all of the parties' concerns.
In performing its adjudicative examination, the court was permitted to simultaneously consider the overlapping issues of title ownership (Dennis's burden of proof in her quiet title counterclaim*fn1 ) and partition (Joseph's burden of proof in his partition action*fn2 ). Joseph posits that the laboring oar was on Dennis due to the deed that listed both as grantees. We agree with Joseph on that score. Nevertheless, we find that the court properly took that burden into account in reaching an ultimate conclusion and did not incorrectly place a burden of proof on Joseph to demonstrate title.
For tenants-in-common, there is a presumption of equal ownership. Asante v. Abban, 237 N.J. Super. 495, 498 (Law Div. 1989). However, that presumption can be rebutted by evidence that the co-tenants intended otherwise. Reitmeier v. Kalinoski, 631 F. Supp. 565, 572 (D.N.J. 1986). See, e.g., Aronow v. Silver, 223 N.J. Super. 344, 351 (Ch. Div. 1987).
We conclude that the preponderance-of-evidence burden of proof is appropriate when determining the valuation of the co-tenants' interests. See Swartz v. Becker, supra, 246 N.J. Super. at 411 ("General rules governing burden of proof apply in partition actions."). Resolution of these issues may affect the ownership of real property and overturn the presumption of equal value for co-tenants. However, parties taking title as tenants-in-common must understand that any dispute over their property may conclude in partition and valuation. These consequences are known and inherent in such a title status.
In our view, N.J.R.E. 301, which speaks of evidence "tending to disprove the presumed fact," makes clear that the evidence necessary to rebut a presumption must simply be strong enough so that reasonable persons would differ as to whether the presumed fact could be discerned. Harvey v. Craw, 110 N.J. Super. 68, 73 (App. Div.), certif. denied, 56 N.J. 479 (1970). Thus, all that was necessary in this case to rebut the presumption of equal valuation was for Dennis to create "a genuine issue of fact" as to the existence of the presumed fact. Graves v. Church & Dwight Co., Inc., 267 N.J. Super. 445, 460 (App. Div.), certif. denied, 134 N.J. 466 (1993). Once the procedural effects and consequences of the presumption are rebutted, then the valuation decision need only be supported by a preponderance of the evidence, the usual standard governing civil cases. State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994).
"A presumption . . . is no substitute for affirmative proofs." State v. Cuccio, 350 N.J. Super. 248, 257 (App. Div.), certif. denied, 174 N.J. 43 (2002). "The function of a presumption is to allocate the burden of producing evidence; it should not be used as a surrogate for substantive evidence or as a substitute for satisfying the burden of proof assigned by law." Id. at 257 (internal citations omitted). Thus, "a valid presumption can be used to establish a prima facie case, but the presumption normally disappears in the face of conflicting evidence." Biunno, Current N.J.
Rules of Evidence, comment on N.J.R.E. 301 (2003) (quoting the 1991 Supreme Court Committee Comment). [Jameson v. Great Atlantic and Pacific Tea Co., 363 N.J. Super. 419, 427 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004).]
In light of the sharply contested evidence of the parties' intentions, contributions, and expectations, coupled with the express declaration of a lack of confidence in the credibility of Joseph, the trial court cannot fairly be faulted for the manner in which it weighed the evidence and decided the dispute. In the end, the court essentially found only that a helping hand was given by one acquaintance to another, without an expectation of profit or tangible advantage (except for repayment of the $1,500 loan). This conclusion did no violence to the parties' respective burdens of proof.
Joseph accused the trial judge of ignoring facts and circumstances that should have impelled a different result. For example, Joseph argues that Dennis's concession that she would pay Joseph "some shape of money" "ignored the implication from Dennis's testimony that both she and Joseph would receive an equitable interest in the Property."
Defendant has offered no persuasive reason for us to reverse Judge Anzaldi's decision, which was based on the court's credibility findings and a thorough review of the evidence. Even if we were inclined to reach a different result on the calculus of credibility, there is sufficient reliable evidence in the record supporting Judge Anzaldi's decision. Rova Farms Resort, Inc. v. Investors Ins. Co., supra, 65 N.J. at 484. We reject Joseph's contention that "some shape of money" is inescapable code for an equitable interest in the property.
Joseph contends that the effect of the trial court's decision "had the unintended result of effectively voiding the original mortgage." The unfounded basis for this argument is Joseph's view that his loss of an equitable interest in the property deprived his guaranty of the purchase money mortgage of lawful consideration.
Joseph refers to Campi v. Seven Haven Realty Co., 294 N.J. Super. 37 (Law Div. 1996) and Savarese v. Corcoran, 311 N.J. Super. 240 (Ch. Div. 1997), aff'd, 311 N.J. Super. 182 (App. Div. 1998) as support for the notion that the trial court effectively pronounced that the purchase money mortgage between Joseph, Dennis, and their lender was "unenforceable for lack of consideration."
We find this argument attenuated and unconvincing. Campi and Savarese did not involve any similar factual circumstances to those involved here. Campi held unenforceable a provision of an application for a lease requiring the forfeiture of the first month's rent upon a tenant's subsequent failure to enter into the anticipated lease. It did not address any accommodation arrangements or guaranties, and did not purport to apply to purchase money mortgages. Savarese, a divorce case, repeated no more than the general rule regarding the necessity of lawful consideration to support an agreement containing mutual promises and obligations. Its holding is foreign to the arcane supposition regarding purchase money mortgages that Joseph wants us to adopt.
Joseph maintains that, if nothing else, his $1,500 contribution at the closing entitled him to an equitable interest in the property, citing Asante for this proposition. Asante, however, held:
[T]he court finds that it was the intention of the parties,, to take title prior to their marriage as tenants in common and share ownership in proportion to their financial contributions pending their marriage. [Asante v. Abban, supra, 237 N.J. Super. at 502.]
Here, the trial court did not find a similar shared intention on the part of Dennis and Joseph, and concluded only that the money that changed hands at the closing was a loan; nothing more, nothing less. Indeed, as we have already noted, Joseph wrote in his own hand on the memo line of the $1,500 check that the check was for a loan. We have no sound reason to disturb that finding of fact, and Asante does not compel a different result.
Joseph asserts that his motion for reconsideration or relief from the judgment (functionally, a motion for a new trial) should have been granted. He claims that payments toward the mortgage that he allegedly made in 2005 bespeak, at least, an equitable interest in the property, and that even belatedly, he should have been entitled to present this evidence to the trial judge. We disagree.
The evidence of Joseph's alleged payments of several months of mortgage installments was not newly discovered. Joseph simply failed and neglected to bring these alleged payments to the attention of the court in the first phase of the parties' dispute. Whether this was for tactical reasons or otherwise is unclear. Joseph claims that these payments were only relevant if the court initially found that he had an equitable interest in the property. This is belied by the manner in which he sought to use that evidence.
Those alleged payments would have only been arguably relevant to rebut Dennis's claims that Joseph contributed virtually nothing. They furthermore could have demonstrated both Joseph's incremental payments of principal on the purchase money mortgage and as an index of a tangible interest in the house. He did not assert that those payments were evidence of additional loans to Dennis. Moreover, the information regarding these alleged payments by Joseph was not disclosed during the discovery period and would likely have been suppressed as violative of discovery obligations if they were offered during the first part of the trial.
Reconsideration of a matter falls within the sound discretion of the court and should be exercised in the interest of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). A matter will be reconsidered when the court's decision is "based upon a palpably incorrect or irrational basis," when "it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence," or when the party seeks to bring additional or new information to the attention of the court which it could not provide on the first application. D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990).
The evidence that Joseph sought to present to the trial court was not new. It was readily available for his use during the first phase of the trial. Moreover, not only were his motions without merit, they were untimely served. When properly viewed as motions for reconsideration and for a new trial, they were not served within the twenty-day time limit after service of the trial court's determination, which Joseph conceded was on September 29, 2008. R. 4:49-1(b).
A motion for a new trial must be served not later than twenty days after the court's decision is announced in a non-jury case. R. 4:49-1(b). A motion for reconsideration must be served not later than twenty days after service of the judgment or order being reconsidered. R. 4:49-2. These time periods in which to bring motions for a new trial or for reconsideration may not be enlarged. R. 1:3-4(c). Baumann v. Marinaro, 95 N.J. 380, 387-89 (1984); Eastampton Ctr., LLC v. Planning Bd. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002).
Joseph's motions were placed in the mail on Friday, October 17, 2008. Under Rule 1:6-3(c), motions are not deemed served when mailed. Rather, they are served when received in the opposing attorney's office, with a three business-day presumption. Thus, Joseph only had until Monday, October 20, 2008, to ensure service of the motions. This did not occur because the Law Division received and filed the motions on October 22, 2008; opposing counsel received the motions on the same day, two days out of time. Notwithstanding the close proximity to the due date, they were still late.
Joseph also argued that the trial court "erred by not conducting an accounting of each party's debits and credits for the property." This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Lastly, we are thoroughly satisfied that Judge Anzaldi, who saw and heard the witnesses, was in the best position to judge the equities of the situation. We will not Monday morning quarterback in these circumstances and are firmly disinclined to second-guess him.