On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1026-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 17, 2010
Before Judges Fisher and Fasciale.
In this post-divorce judgment matrimonial action, plaintiff Keve Stevens appeals from an August 3, 2009 order denying his motion in aid of litigant's rights. He sought to enforce Article XI paragraph two of the parties' property settlement agreement (PSA) that required defendant Marcia Stevens to file joint tax returns in 2007. We conclude that the tax provision of the PSA is unenforceable, and affirm.
The parties incorporated the PSA into their judgment of divorce dated March 3, 2008. During the negotiations leading up to the PSA, Keve represented to Marcia that prior tax returns had been or would be filed. Marcia relied on that representation and agreed to the language in Article XI of the PSA that provided in part:
1. If either party is advised of an audit on any prior jointly filed tax returns, then he or she will immediately notify the other party and the parties will then jointly decide how they will proceed.
2. The parties will file joint Federal and State tax returns for the 2007 tax year and will equally share any refunds/tax liabilities associated therewith.
In May 2008, Keve requested that Marcia execute their 2005 joint tax returns. Marcia understood, based on Keve's representations, that he had filed these returns previously, but she executed the documents nevertheless. In January 2009, the State alerted Marcia that she owed fees and penalties regarding their 2005 tax return. Marcia paid the deficiencies to protect her own credit. Concerned about the status of their tax returns, Marcia contacted the Internal Revenue Service and learned that Keve failed to file their federal tax returns for 2005 and 2006.
Marcia acknowledged that the PSA obligated her to file the 2007 tax returns jointly, but notified Keve that she intended to file her own individual tax return for the year 2007. Marcia's attorney explained to Keve's attorney:
As you are undoubtedly aware, during the pendency of this divorce action, there were ongoing problems with regard to [Keve's] failure to timely and appropriately file tax returns. That being the case, and given the fact that [Keve] did not do as he was obligated to, timely file the parties' joint 2007 tax return, [Marcia] has taken the initiative and is filing solely.
Marcia maintained that she no longer trusted Keve to file tax returns timely and decided that she would file by herself.
The family part judge denied Keve's motion in aid of litigant's rights to compel Marcia to file jointly and stated:
Although the PSA states [that] the parties shall file a joint return for 2007, the court declines to enforce that provision as [Keve's] conduct in regard to 2005 and 2006 renders that provision inequitable. [Marcia] expressed concern that the 2005 and 2006 returns were not filed. The only proof [Keve] has submitted is there was a payment voucher for 2006 received by the IRS on February 17, 2009. There is no proof of the filing of either state or federal tax returns for 2005 and 2006, only the payment voucher. Draft returns were sent to the defendant on May 27, 2008 (2005) and July 21, 2008 (2006). For 2005, the amount of $5,829 was due to the IRS and $1,895 due ...