On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2574-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2009
Before Judges Graves and Newman.
In this post-judgment matrimonial matter, defendant Patrick Colgan appeals from an order dated July 21, 2008, valuing the former marital residence (the home) at $750,000, and an order entered on July 31, 2008, requiring him to pay plaintiff: (1) $68,316.52 for pension arrears; (2) $10,684.84 for repairs to the home; (3) $13,172.45 from the proceeds of sale of property in Pennsylvania; (4) $487.50 for one-half of the cost for an appraisal of the home; and (5) $5274 for plaintiff's counsel fees. Plaintiff Linda Colgan cross-appeals from two parts of the order dated July 31, 2008, that denied her request (1) for payment of $29,936.98 to reimburse her for their daughter's college costs, and (2) for payment of $20,000 to replace an allegedly unauthorized withdrawal from a custodial account. We affirm the order dated July 21, 2008, and the award of counsel fees in the order dated July 31, 2008. However, we reverse the other rulings that have been challenged on appeal and remand for a plenary hearing.
The parties were married in 1971 and divorced in 2003. One child was born of the marriage, a daughter, who is now twenty-three years old. An amended judgment of divorce entered on October 30, 2003, incorporated a property settlement agreement (PSA) dated September 15, 2003. The PSA permitted plaintiff to remain in the home for three years, at which time the parties would "discuss and decide" whether the home would be listed for sale. The parties further agreed that when the home was sold, they would equally divide the net proceeds of sale.
With respect to major repairs and maintenance of the home pending its sale and the distribution of the net proceeds of sale, paragraphs 3.1 (G) and 3.1 (H) of the PSA provide as follows:
(G) The Husband and Wife shall be equally responsible for any major repairs and/or maintenance performed on the residence or to the property, not to include merely cosmetic, decoration, nor remodeling expenses. Major repairs and/or maintenance shall be defined as structural repairs, roof repairs or replacement, or any repair, replacement or necessary maintenance to the home or property in the amount of $750 or more. The parties shall share the cost equally at the time same is incurred. In the event one party does not advance or pay his/her share at the time, the party who incurs the expense shall receive reimbursement from the other's share of the net closing proceeds at the time of sale. The repairs or other work shall not be contracted for or performed without prior consent except in the case of emergency. Consent shall not be unreasonably withheld by either party.
(H) At the time the marital residence is sold, the parties shall equally divide the net proceeds of sale, after ordinary closing costs. The distribution of monies at the closing shall also include any payment of credits due from one party to the other as a result of this provision, any other provision or default in required payments set forth in this Agreement, which shall be reimbursed by the party owing said monies to the other party at the time of closing of sale, from the defaulting party's share of the proceeds of sale.
The PSA also required the parties to maintain three custodial accounts, which were in defendant's name, and various United States Savings Bonds in the face amount of $33,000, which were in joint names, for their daughter's "post-high school education expenses, and payment of income taxes on the income from the accounts." Additionally, the parties agreed that if the custodial accounts and bonds were "not sufficient to cover all of [their daughter's] post-high school college expenses, the parties shall be equally responsible for any excess expenses over and above the monies when exhausted."
On May 30, 2007, the court ordered the parties to cooperate in listing the home "for sale or buyout by plaintiff." Thereafter, plaintiff filed a motion seeking, among other things, to compel defendant to transfer his interest in the home to her "in exchange for the payment of his half interest less a 6% brokerage fee and the $147,907.89 he owes to me."
On July 11, 2008, the court entered an order allowing plaintiff to purchase the home from defendant. The same order required the parties to place the proceeds from the sale in escrow and to return to court on July 25, 2008, to address plaintiff's claim that she was entitled to receive a portion of defendant's share of the proceeds of sale because defendant had failed to comply with the terms of the PSA. Prior to the continuation date, the court entered an order on July 21, 2008, that valued the home at its "most recent appraisal value of $750,000."
Following oral argument on July 25, 2008, the court denied plaintiff's application for payment of $29,936.98 to reimburse her for college costs and expenses and denied her request for payment of $20,000 to replace funds that defendant had withdrawn from the custodial accounts. But defendant was ordered to pay plaintiff the sum of $97,935.31 from his share of the net proceeds of sale. As previously noted, this figure included: $68,316.52 for pension arrears; $10,684.84 for defendant's share of repairs to the home; $13,172.45 for plaintiff's share from the sale of property in Pennsylvania; $487.50 for defendant's share of appraisal costs for the home; and $5274 for counsel fees awarded to plaintiff.
Defendant argues on appeal, as he did below, that a plenary hearing was needed to resolve disputed issues. For example, plaintiff claimed she paid $21,369.63 for emergent and necessary repairs to the home, and the court ordered defendant to pay plaintiff $10,684.84 as his share of the repairs. However, in his certification in opposition to plaintiff's motion, defendant claimed that none of the alleged repairs were emergent, he was never "consulted or advised, or given any notice of many of the alleged repairs," and ...