On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-285-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Baxter, and Hayden.
Plaintiff Cheryl Hague appeals from an order entered without prejudice by the Family Part on July 23, 2010 in her post-judgment litigation against defendant Robert Hague concerning the validity of the couple's Property Settlement Agreement (PSA). Because the order was interlocutory, we dismiss this appeal.
Plaintiff and defendant were divorced on July 17, 1997 by a Dual Judgment of Divorce, which incorporated the PSA. In the PSA the defendant agreed to waive his interest in the marital home, subject to a mortgage representing a security interest of $34,850.00. The mortgage was due to be paid when the house was sold or within five years, whichever came first.
On August 16, 2002, plaintiff filed a motion to set aside the PSA. In her motion she claimed that defendant had hidden his substantial interests in certain business entities during the divorce proceedings.*fn1 In response, defendant filed a cross motion asking that plaintiff's motion be denied and that the PSA be enforced, including payment of the mortgage lien.
On August 6, 2003, after three days of hearings, the judge issued an extensive opinion and order. The judge found that [t]he plaintiff has established a prima facie case sufficient to warrant a plenary hearing to determine whether or not the defendant had an equitable interest during the marriage in the Mountain Valley Group, L.L.C. (and subsequently the Berkeley Group, L.L.C.),
The Brick Oven Restaurant and the Circle K Ranch, L.L.C. which he failed to disclose during the divorce litigation, as a result of which the alimony and equitable distribution provisions of the Property Settlement Agreement must be reformed. The specific relief sought by the plaintiff in her Notice of Motion is reserved pending that determination.
As a result of her finding, the judge ordered a plenary hearing on the reformation of the PSA, which she stayed until after the conclusion of the related pending litigation. The judge also stayed the cross motion to enforce the PSA. On June 10, 2004, defendant, who was living in Montana, filed a petition for bankruptcy. Defendant did not list plaintiff as a creditor in his bankruptcy proceedings although she was receiving monthly support payments pursuant to the PSA. Additionally, defendant listed his mortgage on the former marital home as an asset that was "uncollectible - 100% exempt."
The bankruptcy court issued a discharge of bankruptcy to defendant in August 2004.
On May 14, 2010, defendant brought a motion to obtain an order for immediate payment of the mortgage lien. Additionally, he sought to have a $100 per day fine for the time plaintiff did not pay.
On July 2, 2010, plaintiff cross moved to prevent defendant from collecting the lien. In her cross motion, plaintiff requested that the motion judge remove the lien on the former marital home due to defendant listing the lien as uncollectible in the Montana bankruptcy proceeding. In the alternative, plaintiff requested that the judge appoint Montana bankruptcy counsel at defendant's expense to help her to determine her "rights and liabilities" concerning the lien. Finally, she requested a plenary hearing to determine whether the PSA should be vacated entirely. The cross motion also noted that plaintiff wished to be awarded counsel fees and costs.
The motions were returnable before a judge other than the judge who presided over plaintiff's attempt to set aside the PSA. The motion judge denied both parties' motions without prejudice and stated, "I'm not making any findings . . . I'm certainly not going to enforce the contract that you're seeking to enforce in a piecemeal fashion." In explaining his reasons for not addressing the substance of the parties' motions, the motion judge declared, in pertinent part, I'm going to try to rule on this with some sense of rationality the best I ...