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McNeil v. McNeil

November 10, 2010

JANET W. MCNEIL N/K/A JANET W. WEBER, PLAINTIFF-RESPONDENT,
v.
ANDREW MCNEIL, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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