On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-10-457-00M.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2011
Before Judges Rodriguez and Grall.
Plaintiff Sandra Hartpence and defendant Ridge Hartpence were divorced on September 27, 2002. They have two children who are now nineteen and seventeen years old. Defendant appeals from a February 4, 2010 order denying his motion for reconsideration of paragraphs seven and eight and enforcement of paragraph two of an order entered on October 30, 2009.
Paragraph seven of the October 30 order addresses responsibility for the costs of carrying the marital residence between entry of the final judgment of divorce and its sale. Defendant sought reimbursement from plaintiff for one-half of the expenses he paid from the date he left the residence until the date of sale. The judge denied that request based on a clause in paragraph 4.1 of the parties' property settlement agreement. It provides: "Husband shall be entitled to sole and exclusive possession of the former marital residence."
On defendant's motion for reconsideration, he argued that the judge had overlooked paragraph 4.3 of the agreement. That paragraph states that "[t]he Husband shall be solely and exclusively responsible for all carrying costs." It also provides, however: "The Husband's aforesaid obligation with respect to the carrying costs as defined above associated with the former marital property shall remain in effect for so long as the Husband continues to occupy the aforesaid real property." Defendant's argument was that because he no longer occupied the property, he was no longer solely responsible for its carrying costs.
On the motion for reconsideration, the judge still did not address paragraph 4.3. Apparently relying on testimony taken on October 30, 2009, the judge wrote, "[defendant] unilaterally chose to move out of the home at that time and therefore should be responsible for maintaining the expenses for the home." Based on our review of the record, we see no testimony that supports a finding that defendant "unilaterally chose to move out of the home." The plaintiff testified that she did not know that defendant had left the home, but there was no evidence as to why defendant chose to move. Indeed, in addressing defendant on this issue on October 30, the judge said, "you didn't give me the circumstances of why it was unoccupied." As a result, the judge's finding and order cannot be sustained. On remand, the judge should schedule a hearing on the motion for reconsideration and, if necessary, take testimony before resolving the disputed facts.
We turn to consider defendant's objections to paragraph eight of the October 30 order. The order indicates that the parties reached an agreement on the amount of the expense to be shared. It states: "The parties consent that the list of college expenses submitted to the [c]court by plaintiff in the amount of $3,288.75 is correct and those expenses should be shared by the parties." The judge reiterated the parties' consent to the amount of the college expenses to be shared in an order entered on December 24, 2009 on a motion and cross-motion.
The underlying factual finding - that the parties reached an agreement on the amount of the expenses - is not supported by the record. Although the total of the list of expenses plaintiff submitted on the October 30, 2009 motion is $3,288.75, there is nothing in the record that memorializes the parties' consent to the fact that all of the expenses on that list are ones that paragraph 5.2 of the property settlement agreement requires them to share. On the motion for reconsideration, plaintiff asserted that defendant agreed to her list when they met with a law clerk outside the courtroom. Defendant acknowledged the meeting but disputed the outcome.
It was error for the judge to resolve this factual dispute about what happened outside the courtroom on the basis of conflicting certifications. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). Accordingly, we vacate the order and remand. Absent an agreement by the parties, the judge must decide the parties' respective obligations under the terms of paragraph 5.2 of their agreement. On remand the judge should clearly state the obligation that is imposed. We note that our review of the orders left us confused. The orders of October 30 and December 24, 2009 state defendant's obligation in terms of a percentage of $3288.75, but the February 4, 2010 order states that $3288.75 represents defendant's percentage share.
Defendant also raises an objection to the judge's rulings on his motion to enforce telephone contact with his sons. Based on our review of the evidential materials submitted on the initial motion and the motion for reconsideration, we conclude that defendant's arguments on this point lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for further proceedings in conformity with this opinion. We do ...