On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-17963-75.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
In this cross-appeal,*fn1 plaintiff Donald C. Sachau contends that the distribution of the proceeds from the sale of the marital home as set forth in the trial court's order of May 29, 2008, is contrary to the terms of the parties' final Judgment of Divorce and should be reversed. We affirm because the distribution of the proceeds of the marital home set forth in the trial court's order conforms with our earlier remand instructions.
Plaintiff and defendant Barbara Sachau were married in 1964 and thereafter divorced. Under the terms of their Judgment of Divorce dated February 21, 1979, defendant and the two children of the marriage were entitled to remain in the marital home until the youngest child reached the age of eighteen and graduated from college. At that time, the marital home was to be sold, and the net proceeds, after certain adjustments were made, were to be divided equally between the parties. The language in the Judgment of Divorce setting forth these terms is as follows:
The defendant and the two children of the marriage shall be entitled to reside at the marital home... until the youngest child shall have reached the age of 18 and graduated high school. At such time as the youngest child shall have attained the age of 18 and graduated from high school, the house shall be appraised and listed for sale by both parties within 30 days. If the parties cannot agree upon an appraiser, the Court, upon application, shall appoint such an appraiser. The cost of an appraiser shall be borne equally by the parties.
Upon the sale of the marital premises, the proceeds shall be allocated in the following manner: (i) the defendant shall be paid $10,000.00; (ii) the plaintiff shall be paid $15,000.00; (iii) the remaining balance shall be divided equally.
On or about November 28, 1984, the youngest child reached the age of eighteen and graduated high school so that, under the terms of the Judgment of Divorce, the marital house was to be sold. However, this did not happen. Defendant remained in the home, and in September 1990 she began to make irregular payments to plaintiff. In October 2004, she stopped making those payments.
Plaintiff became unable to support himself on his social security payments and became partially dependent on the financial help of friends. He asked defendant for the balance owed him on the house. Not receiving any satisfactory response, he finally moved in March 2006, to enforce his interest in the house. He sought to have the marital home sold and the net proceeds divided in accordance with the terms of the Judgment of Divorce or, in the alternative, he sought payment from defendant of the sum of $250,000. His motion papers stated that defendant had paid him $79,315 toward his share of the marital home.
The trial judge granted plaintiff's motion, and in accordance with the provisions in the Judgment of Divorce, he entered an order dated April 12, 2006, ordering that the house be sold and that the defendant be given credit for the $79,315 she had paid to plaintiff. Defendant was uncooperative in carrying out the terms of this order. On June 12, 2006, the trial judge signed an order directing defendant to sign a listing agreement so that the house could be sold. The trial court entered an order on August 21, 2007, allowing plaintiff "to act as Attorney-in-fact to sell the former marital home." By order dated September 4, 2007, plaintiff was allowed to sign as attorney-in-fact for the parties the contract for sale of the marital home.
By order dated September 21, 2007, defendant's motion for leave to appeal was granted, and, pending appeal, we stayed the order appointing plaintiff as attorney-in-fact to sign the contract of sale. By order dated October 12, 2007, we stayed, pending appeal, the order approving the contract for sale. By order dated October 25, 2007, we denied the application for vacation of the stay and summary disposition. We further stated in the order that:
We believe, based on what is now before us, that a question exists as to whether the failure of plaintiff to enforce his rights under the judgment of divorce for a substantial period of time, together with the value of payments made by defendant to plaintiff and lack of payment by plaintiff to defendant of support obligations raises a serious ...