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Ejiofor v. Ejiofor

August 3, 2010

LUCIA EJIOFOR, PLAINTIFF-APPELLANT,
v.
CARLOS EJIOFOR, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Family Part, Burlington County, Docket No. FM-03-1513-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 20, 2010

Before Judges Fuentes, Gilroy and Simonelli.

Plaintiff Lucia Ejiofor appeals from the July 27, 2007,*fn1 October 1, 2008, December 3, 2008, and February 6, 2009 post-judgment of divorce (JOD) orders. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

The parties married on May 27, 1989, and separated December 15, 2004. Three children were born of the marriage in 1991, 1996, and 1997. On June 21, 2005, plaintiff filed a complaint for divorce. Defendant counterclaimed. While separated, the parties entered into a marital settlement agreement (MSA) addressing the issues of marital support, equitable distribution, child custody and parenting time. On March 15, 2007, the court granted the divorce, with the parties placing the terms of the MSA upon the record. On April 12, 2007, the court entered a dual JOD nunc pro tunc to March 15, 2007. The JOD incorporated the provisions of the MSA.

At time of the divorce, the parties owned several properties: a tract of property in Lagos, Nigeria; a marital home in Imo State, Nigeria; an apartment unit in Newark; four tracts of real property in North Carolina; a marital residence in Burlington Township; and interests in two timeshare units. According to the MSA, plaintiff agreed to pay defendant $97,000 as equitable distribution ($50,000 by April 14, 2007, and $47,000 by June 13, 2007). Plaintiff agreed that if she failed to timely make payments, she would execute a quitclaim deed to the Newark apartment in favor of defendant. Likewise, defendant agreed that if plaintiff made the payments when due, he would, in turn, execute a quitclaim deed to the Newark apartment in favor of plaintiff.

The parties agreed to divide the four North Carolina properties by drawing lots out of a hat. The MSA provided that: "From time of picking property, each party is responsible for all the financial obligations on the property, including the mortgage, utilities and any other costs. Within 90 days of 3/15/07[,] namely 6/13/07[,] the parties must refinance their picked properties, if not the property goes to the other party." Defendant also agreed to transfer title of the Lagos, Nigeria property to plaintiff on or before April 14, 2007, with plaintiff agreeing not to record the deed until total payment of the $97,000 equitable distribution was made by her. Plaintiff agreed that defendant would retain ownership of the marital home in Imo State, Nigeria. As to the marital residence in Burlington Township, defendant agreed to execute a deed in favor of plaintiff, and plaintiff agreed to refinance the property by June 13, 2007.

Lastly, as to their bank accounts, the parties agreed to marshall all funds from the accounts, total them, and then equally divide the funds between themselves. The parties agreed to complete the distribution of funds no later than June 13, 2007.

On June 15, 2007, defendant filed a motion seeking an order compelling plaintiff to pay him $47,000, his remaining share of equitable distribution, or alternately, compelling plaintiff to execute a deed relinquishing her interest in the Newark apartment. If plaintiff paid the $47,000, defendant sought an order compelling her to refinance within ten days the Newark apartment, the Burlington Township marital residence and the two North Carolina properties plaintiff selected, thus removing defendant from any further obligations on those properties.

Plaintiff filed a cross-motion requesting, among other things, an order: 1) granting her a credit against the amount owed defendant for equitable distribution in the amount of $27,448.83, contending that defendant had concealed a monetary liability against the Lagos, Nigeria property; 2) granting her a credit of $5,406.79 against the amount owed for equitable distribution, asserting that she had paid a joint debt owed on one of the two North Carolina properties defendant selected to save the property from foreclosure; 3) compelling defendant to refinance his two North Carolina properties removing her from any further obligations on them; and 4) compelling defendant to disclose all bank accounts, personally held or jointly held with any third parties in the United States or Nigeria.

On July 27, 2007, the trial court, after determining that neither party had fully complied with the provisions of the JOD, entered an order, supported by an oral decision, directing in part that: 1) plaintiff transfer $47,000 to defendant's attorney's trust account by August 20, 2007, and that the failure to do so would result in plaintiff's waiver of her interest in the Newark apartment; 2) each party bear the debts related to the respective properties each had received through the JOD; and 3) the parties refinance the properties on which their former spouse's name appeared of record, and the failure to do so would be deemed a waiver of the defaulting party's interest in the property. The order also: denied without prejudice that part of plaintiff's motion seeking to reduce the $47,000 equitable distribution owed to defendant by $27,448.83, but granted the parties leave to file cross-motions within ninety days of entry of the order to address plaintiff's claim; and denied without prejudice plaintiff's claim seeking a reduction of monies owed to defendant for equitable distribution by $5,406.79.

The court stated that to the extent the $5,406.79 payment represented a debt the parties had incurred through the date of allocation of the North Carolina properties, plaintiff was not entitled to a credit. If the payment was made for a debt incurred after allocation, then plaintiff would be entitled to a credit. Because the court did not have sufficient information to determine the reason for the payment, it denied the motion, but granted the parties leave to file a motion within ninety days of entry of the order to resolve the issue.

On August 27, 2007, the parties entered into a consent order extending the date to refinance the properties from August 20, 2007, to October 19, 2007. On October 29, 2007, plaintiff filed a motion seeking to compel defendant to either refinance or sell one of the two North Carolina properties previously allocated to him; seeking a $27,448.83 credit against monies plaintiff owed defendant for equitable distribution, together with other credits in ...


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