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McNeil v. McNeil


November 10, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FM-19-359-06.

Per curiam.


Submitted October 26, 2010

Before Judges Carchman and Graves.

Defendant Andrew McNeil appeals from the August 28, 2009 and an October 23, 2009 orders of the Family Part denying his prayers for relief regarding the sale of the marital home owned by defendant and his former wife, plaintiff Janet Weber (a/k/a Janet McNeil). We affirm.

We briefly discuss the relevant facts and procedure precipitating this appeal. The parties were divorced by a judgment of March 28, 2008. The property settlement agreement incorporated in the judgment provided in relevant part:

The parties are vested with the former marital home located [in] Frankford Township, Sussex County. The Husband has agreed to purchase the Wife's interest in the home for $150,000.00. He will assume the existing mortgage in the approximate amount of $100,000.00. The Husband will make immediate application for financing and will close within 90 days. The Husband must furnish to the Wife's legal counsel a copy of the loan application(s) and all correspondence and related documents on or before April 1, 2008.*fn1 The Husband currently occupies the home.

Apparently, defendant never obtained a mortgage nor made any payments toward his purchase obligation to plaintiff. In fact, defendant did not respond to an August 6, 2008 demand for payment and continued to reside in the home without listing the property for sale.

In response to defendant's lack of action, plaintiff moved to enforce litigant's rights. By order of December 19, 2008, the judge found defendant in violation of litigant's rights for failure to make a timely application for refinancing. The judge added that "If Defendant does not pay within 45 days of [December 19, 2008], Defendant must sell the house and pay Plaintiff from the proceeds." The judge then ordered: "If Defendant fails to list the house, or is otherwise perceived by Plaintiff to be delaying, she may file a notice of motion seeking a Power of Attorney to list [and] to sell the house."

Defendant did not list the house, and on February 20, 2009, the judge granted plaintiff a power of attorney to list the marital residence at a fair market value recommended by a Comparable Market Analysis (CMA). The judge also noted that defendant could "refinance and repay [plaintiff] the $150,000 at any time before she has a contract of sale."

In March 2009, plaintiff received two CMA reports. The first suggested a listing price of $320,000 to $330,000 while the second indicated the value of $275,000 to $280,000, noting that housing values in the real estate market were dropping on an average of 1/2% per month. In addition, the CMA report noted that

You have a very nice home, one that should market well. However, the fact that it is unkept [sic] and buyers will have to step over personal belongings in almost every room will be a huge deterrent to buyers. It will be very important to clean the house, inside and out, repair any damage to the walls, paint, and put clothes, toys, paperwork, etc. away before allowing anyone to preview it. And it must be kept that way during the period of the listing.

After unsuccessfully listing the property for three months at $329,000 with no offers, plaintiff received an offer and negotiated a sales price of $287,000. In addition, the buyers obtained an appraisal indicating a value of $290,000.

In the interim, in response to plaintiff's complaint that defendant was inhibiting the sale of the house, plaintiff obtained an order enjoining defendant from having any contact with buyers and mandating that defendant vacate the property by August 31, 2009. Defendant's application to "have equal say in [the] sale of the marital home" was denied. A later motion for reconsideration was denied, and defendant was ordered in part to pay certain expenses related to the sale.

Although he appeals the two orders entered by the Family Part that address a number of issues, defendant limits his argument to the sales price of the home and his concern that it was sold below market value to his detriment. Defendant asserts that any decrease in the market value of the home must be borne equally by the parties, citing Bednar v. Bednar, 193 N.J. Super. 330, 333 (App. Div. 1984).

Defendant's reliance on Bednar is misplaced. Bednar addressed the accretion of valuation from an agreed upon date. But more significantly, it did not involve a fixed sum, as here, agreed to by the parties. By agreeing to pay plaintiff a fixed sum of $150,000, defendant would reap the benefit of any increase in the value of the real estate from the date of the judgment to the date of sale. But, as here, the converse is true as well; defendant alone bore the risk that the property would decrease in value. That is the agreement that he entered into and the judge enforced it.

There is, however, a more compelling reason governing the outcome of this appeal. Defendant failed to cooperate in the sale of the property within the parameters of his 90-day window to refinance and purchase the property. Although we accept his stated reasons for failure to obtain financing, he continued to resist the sale and failed to cooperate in the sale at the time the real estate market was in "free-fall." As the judge noted in his findings: "If there's been a diminution in value, it's because [defendant] sat on his rights back on the time of the original Judgment of Divorce and the Court finds that the Plaintiff should not have to suffer because he did not [do] what he had agreed to do as part of the March 2008 Judgment of Divorce."

As long as there is substantial credible evidence on the record to support a trial court's findings of fact, we are bound by those findings. State v. Elders, 192 N.J. 224, 243 (2007). We will also give due regard to the Family Part judge's credibility determinations and "feel for the case," based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Given the Family Part's special expertise, particular deference is due to the fact-finding in family cases, and the conclusion that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13. Because equitable remedies are largely left to the judgment of the court, which has to balance the equities and fashion a remedy, such a decision will be reversed only for an abuse of discretion. Sears Mortgage Corp. v. Rose, 134 N.J. 326, 354 (1993).

In sum, we conclude that the judge did not abuse his discretion in ordering the house sold at the contract price.


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