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Whissell v. Whissell

October 20, 2010

LORIE WHISSELL, PLAINTIFF-RESPONDENT,
v.
GREGORY WHISSELL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-17-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 21, 2010

Before Judges Graves and Messano.

Defendant Gregory Whissell appeals from the October 21, 2009 order of the Family Part that denied his motion for reconsideration of an earlier post-judgment order entered on August 27. After consideration of the record and applicable legal standards, we reverse and remand the matter for further proceedings consistent with this opinion.

Defendant and plaintiff, Lorie Whissell, were married in 1990 and had two children together -- a daughter born in 1991, and a son born in 1993. In January 2004, the parties separated and in June, plaintiff filed a complaint for divorce. That complaint was dismissed in October when plaintiff filed an amended complaint. On May 17, 2005, the parties, represented by counsel, entered into a property settlement agreement (PSA) that provided for the division of their various assets and liabilities. The PSA acknowledged that the parties had "already equally divided their Merrill Lynch investment account and other bank accounts[,]" with each "receiv[ing] the accounts in their own names free from any claims from the other."

Pursuant to Section 1.29 of the PSA, the parties warranted that prior to execution of the agreement, "a full disclosure was made of all assets," that the PSA "described . . . all assets acquired by either of them during the marriage," that each had acted with due diligence, and that each was relying upon the disclosures made prior to executing the PSA. Section 1.30 of the PSA provided:

NON-DISCLOSURE OF ASSETS: The parties agree that in the event it is discovered at any time in the future that assets were not disclosed by one party to the other prior to the execution of this Agreement, then the party from whom the non-disclosed assets were withheld shall have the right to apply to any Court of competent jurisdiction for any and all relief to which he or she may be entitled under the law, including but not limited to a modification of this Agreement.

Section 1.32 provided:

BREACH OF AGREEMENT: In the event either of the parties breaches a provision of this Agreement resulting in the offended party having to bring the subject of the breach before a Court . . . in order to enforce the terms of this Agreement, the party breaching this Agreement shall be responsible for reasonable counsel fees and costs of that offended party.

The final judgment of divorce (JOD), entered on July 11, 2005, incorporated the terms of the PSA.

Subsequently, plaintiff obtained an order dated April 17, 2009 that granted judgment in her favor as against defendant in the amount of $106,020, appointed her receiver for certain real property, and compelled defendant to produce "a variety of documents."*fn1 Apparently post-judgment discovery ensued, presumably as plaintiff attempted to discover assets available to satisfy her judgment.

In July, plaintiff brought a motion to enforce litigant's rights. In part, she alleged that during a deposition conducted in June, defendant revealed that he "had invested in a theatrical movie production by contributing $150,000 of marital funds in connection with a [s]ubscription [a]greement to 'Southern Belles[,] LLC (Southern Belles).'" Plaintiff denied knowing about the investment. The subscription agreement was dated June 28, 2004, after the parties had separated but before they executed the PSA. Defendant testified at deposition that he had not disclosed this asset to plaintiff because it "came after [the] separation." Plaintiff argued that since "all other assets in the divorce were [split] essentially fifty-fifty," she was entitled to a judgment in the amount of $75,000, and counsel fees for having to bring the motion.

Defendant opposed the motion. He contended that he had not failed to disclose anything because the money he used to invest in Southern Belles was from assets already divided by the parties. Additionally, defendant produced financial records indicating that some of the monies contributed to the film venture came from his construction business. He also produced the records of his Merrill Lynch ...


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