On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FM-01-834-90.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Baxter.
Defendant John J. Hannon, Jr. appeals from an April 9, 2009 order that established the valuation date for the sale of the former marital home as the date of sale rather than the date the judgment of divorce (JOD) was entered, which was September 28, 1990. Defendant also appeals from a provision of the April 9, 2009 order that ordered him to pay counsel fees to plaintiff,
Donna M. Hannon, in the amount of $8,150. As to the valuation date, we reject defendant's contention that the judge erred by refusing to apply the doctrine of laches. We additionally conclude that defendant has presented no evidence to overcome the presumption established by Pacifico v. Pacifico, 190 N.J. 258, 269 (2007), that in the absence of contrary evidence, the valuation date for the sale of the former marital home should be the date of sale, not the date of the JOD. We likewise reject defendant's claim that the judge abused his discretion by awarding counsel fees to plaintiff. We affirm.
Married in 1971, the parties were divorced on September 28, 1990. Their JOD contains extensive provisions respecting the sale of the marital home and how the proceeds from the sale, and the distribution of the marital debt, were to be divided. The JOD is, however, glaringly silent as to what the valuation date would be if the sale of the marital home were to be deferred for a period of years.
In relevant part, the JOD specifies that the former marital home in Collings Lake would be listed for sale no later than September 17, 1990. Defendant was responsible for retaining a realtor who would establish the listing price, subject to plaintiff's right to object to such price. The JOD further provided that subsequent to September 1990, defendant would be solely responsible for paying the mortgage and real estate taxes, as well as all payments due the bankruptcy trustee stemming from the parties' earlier bankruptcy filing.
Any mortgage balance, unpaid real estate taxes, income tax payments penalties and all remaining debt owed the bankruptcy trustee were to be satisfied from the proceeds of the sale of the marital home, with any remaining balance to be a joint debt paid monthly by the parties. In the event that any proceeds of the sale remained after satisfaction of these debts and obligations, such proceeds were to be applied to unpaid medical bills incurred during the marriage.
The JOD afforded defendant the opportunity to purchase plaintiff's interest in the marital home by satisfying her share of the financial obligations we have described. Rather than list the property for sale no later than September 17, 1990, or provide plaintiff with a proposal for purchasing her interest in the marital home, as required by the JOD, defendant simply continued to reside there and make the monthly mortgage payments.
In the early part of 1993, plaintiff filed a motion to compel the sale of the marital home. The resulting June 9, 1993 order required defendant to either refinance the property "or to otherwise arrange to have plaintiff relieved from [sic] her obligation under the mortgage encumbering the property." The order provided that if defendant failed to do so by July 15, 1993, plaintiff would be entitled to arrange for the sale of the home.
Defendant violated that order by refusing to even let a realtor inside the house. Obviously, without entering the house the realtor could not determine the appropriate sales price and could not list the property for sale. According to plaintiff, "[defendant] had his dogs out, wouldn't let realtors in."
For the next fifteen years, plaintiff took no action to enforce her rights under the June 9, 1993 order. Finally, on March 27, 2008, she filed the motion that is the subject of this appeal. The motion sought an order permitting her to sell the property without defendant's signature, to make any necessary repairs and to obtain police assistance if defendant interfered with her efforts to gain access to the property. Plaintiff submitted an appraisal of the ...