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James M. Nixon v. Renee C. Nixon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 2, 2011

JAMES M. NIXON, PLAINTIFF-APPELLANT,
v.
RENEE C. NIXON, N/K/A RENEE CLARKE, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-1652-07B.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 1, 2011

Before Judges Wefing and Payne.

Plaintiff, James Nixon, appeals from a May 28, 2009 Family Part order denying his motion to correct an amended judgment of divorce entered on January 27, 2009, arguing that the amended judgment fails to conform to the terms that the parties orally placed on the record through counsel on June 24, 2008 following mediation by the trial judge.

I.

The principal matter at issue concerns the agreement by defendant Renee Clarke Nixon to pay alimony in the amount of $16,000 per year for twelve years to plaintiff, to enter into a domestic relations order that would divide that portion of her teacher's pension earned during coverture equally with plaintiff, and to insure her obligation by maintaining employer-funded life insurance in the amount of two and one-half times her salary as of June 24, 2008 for plaintiff's benefit.

Plaintiff argues that the insurance obligation remains fully effective until defendant's pension is in pay status. Plaintiff argues that if defendant were to die prior to the day upon which defendant's pension became payable, the insurance proceeds would constitute a rough equivalent for the lost pension payments. Without that insurance, he would receive nothing, contrary to the agreement of the parties.

Defendant argues that the insurance collateralizes only the alimony obligation. Therefore, plaintiff's share of the insurance benefits should decrease as the period for payment of alimony progresses, and the benefit amount should remain directly proportional to the amount of outstanding alimony. As a consequence, when the alimony obligation ended, any insurance recovery would end, without regard to the status of defendant's pension.

These variant positions were discussed at length on the record on June 24. Recognizing that an agreement had not been reached by the parties on the issue, the trial judge adjourned the hearing and directed that the parties attempt to reach a settlement. Later that day, they returned. The following was placed on the record.

THE COURT: - Nixon. We're back on the record.

Mr. Mark, you have the floor. Do the parties have an agreement on the insurance issue?

MR. MARK: Yes.

THE COURT: What's the agreement?

MR. MARK: The insurance will be maintained until pay status of the pension.

After establishing grounds for divorce and obtaining the parties' consent to the oral property settlement agreement, the trial judge entered a judgment of divorce and stated that an amended judgment of divorce would be entered that included the parties' property settlement agreement. He stated:

Mr. Mark [defense counsel] has volunteered to do that. He's going to draft the language based on his notes. Then he's going to pass it to Ms. Grayson. She's going to make sure the language is accurate.

There might be a little bit of back-and-forth. When they have concluded doing all of that and their signatures are on it and maybe yours will be on it, then it comes to me and I will sign it. And this process is going to take a period of time.

A substantial period then elapsed, during which counsel for the parties exchanged acrimonious letters regarding the proposed text of the judgment. In a letter dated January 13, 2009 and addressed to the trial judge, defense counsel wrote:

Toward the end of last year, I submitted to Your Honor, an Amended Dual Judgment of Divorce under the Five-Day Rule in connection with this matter.

Since that time, my client has secured a copy of the transcript of the settlement, which was placed on the record. As such, I [am] providing Your Honor with a copy of the transcript of the settlement, as well as additional copies of the amended Dual Judgment of Divorce. I suggest to Your Honor that the Amended Dual Judgment of Divorce, in all respects, complies and/or exceeds the agreement, as placed on the record, as evidenced by the transcript, and respectfully request Your Honor execute same, returning the copies to this office accordingly.

The proposed amended dual judgment of divorce set forth, in paragraph 12, defendant's obligation to provide limited term duration alimony to plaintiff in the amount of $16,000 per year for twelve years. Paragraph 13 stated:

13. For so long as the Defendant has an obligation to pay spousal support, in accordance with the prior paragraph, and, until Defendant's Teacher's Pension is in "pay status," she shall maintain minimum life insurance, through her place of employment (2 1/2 times her current salary, as of June 24, 2008), designating the Plaintiff as beneficiary on said policy, in accordance with the agreement between the parties. The payment, in accordance with this paragraph, shall not exceed the amount then owed to the Plaintiff, in furtherance of Paragraph 12.

On January 26, 2009, plaintiff's counsel delivered her objections to defendant's form of order, including the last sentence of paragraph 13, to the judge by Lawyer's Service and fax. However, in a later proceeding, the judge stated on the record that he did not see the objection until January 30. He signed defendant's form of order on January 27, 2009.

Thereafter, plaintiff moved for correction of the amended dual judgment of divorce. A cross-motion was also filed. Argument on the motions took place on the morning of May 28, 2009, at which time the trial judge considered only the insurance issue, ruling against plaintiff in that regard. The judge then adjourned the proceeding, announcing to the parties:

With respect to the other issues, I am going to take a luncheon recess. And then I'll come back and we will go over them, if you still want me to. . . .

So what we're going to do is this. There were other issues dealing with bank accounts. There were other issues dealing with the vehicle. And I'm prepared to do them after lunch . . . .

I wanted to come out and do that [the insurance issue], at least [that] part first, in the hopes it would give some guidance to the parties. Maybe they don't want to be here the rest of the day or maybe they don't want their lawyers here the rest of the day. The rest of the issues might resol[v]e themselves; maybe they won't.

I'll see you at two o'clock.

No further proceedings took place. The judge therefore entered an order denying plaintiff's application to correct the Amended Judgment of Divorce and stating further:

Other than those requests for relief addressed and agreed upon in the attached Consent Agreement [concerning payment of student loan], all other reliefs [sic] requested in the Motion and Cross Motion are hereby considered abandoned, as the parties left this court without identifying consent or direction as to those issues.

This appeal followed.

II.

On appeal, plaintiff raises the following issues for our consideration:

POINT ONE: THE LOWER COURT ERRED IN DENYING THE PLAINTIFF'S REQUEST BASED ON A LACK OF TIMELY OBJECTION TO THE AMENDED DUAL JUDGMENT OF DIVORCE AND PROPERTY SETTLEMENT AGREEMENT SUBMITTED BY THE DEFENDANT ON JANUARY 13, 2009.

POINT TWO: THE LOWER COURT INCORRECTLY DETERMINED IN ITS MAY 28, 2009 ORDER THAT THE JANUARY 27, 2009 AMENDED DUAL JUDGMENT OF DIVORCE AND PROPERTY SETTLEMENT AGREEMENT COMPORTED WITH THE ORAL TERMS OF THE AGREEMENT PLACED ON THE RECORD ON JUNE 24, 2008.

POINT THREE: GIVEN THAT THE PARTIES DID NOT AGREE TO SUBMIT THE AMENDED DUAL JUDGMENT OF DIVORCE AND PROPERTY SETTLEMENT TO THE COURT FOR SIGNATURE, AND AN OBJECTION WAS FILED, THE COURT LACKED JURISDICTION TO SIGN THE AGREEMENT AND THUS THE COURT SHOULD HAVE GRANTED THE PLAINTIFF'S REQUEST TO AMEND THE AGREEMENT.

POINT FOUR: THE PLAINTIFF MADE AN APPROPRIATE AND TIMELY MOTION TO AMEND THE JANUARY 27, 2009 AMENDED DUAL JUDGMENT OF DIVORCE AND PROPERTY SETTLEMENT AGREEMENT.

Plaintiff commences his argument by maintaining that his objections to the terms of the proposed amended dual judgment of divorce were timely under the five-day rule, Rule 4:42-1(c), when construed in light of computation and enlargement of time provisions of Rules 1:3-1 and 1:3-3. Although the construction of those rules, together, is not entirely clear, we are satisfied that, in instances in which a proposed form of order is served on an adversary by ordinary mail under the five-day rule, the Court Rules contemplate providing three business days for receipt of service of the proposed order and then five business days for preparation and service of a response. In the unusual circumstances of this case, which included two weekends and a legal holiday, we find that plaintiff's service of objections was timely.

The transcript of the May 28, 2009 argument before the trial judge discloses that the judge did not receive or review plaintiff's objection prior to executing the amended dual judgment of divorce. However, the May 28 hearing provided an alternative forum for consideration of plaintiff's arguments.

Following argument on the insurance issue, the judge ruled against plaintiff's position. We conclude that the judge was mistaken in that regard. As we noted previously, at the initial hearing on June 24, 2008, defendant initially took the position that defendant's employer-provided life insurance was to operate so as "to collateralize her alimony obligation. At such time as the alimony obligation ceases, her obligation to insure under this policy also ceases." In contrast, plaintiff claimed the life insurance "continues until the first payment of the pension is received by my client, which will be when the life insurance ends." In other words, the insurance would end "when the pension starts in its pay status." At the conclusion of a further off-the-record discussion of the issue, defendant's counsel stated on the record that the parties agreed "[t]he insurance will be maintained until pay status of the pension."

"[A] settlement agreement between litigating parties is a contract[.]" Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 464 (App. Div. 2008) (citing Pascarella v. Bruck, 190 N.J. Super. 118, 124 (App. Div.), certif. denied, 94 N.J. 600 (1983)). "[C]courts do not rewrite contracts in order to provide a better bargain than contained in their writing[.]" Ibid. (citing Christafano v. N.J. Mfrs. Ins. Co., 361 N.J. Super. 228, 237 (App. Div. 2003)). Finally, "unambiguous contracts are to be enforced as written[.]" Ibid. (citing Atlantic N. Airlines v. Schwimmer, 12 N.J. 293, 302 (1953)).

We find these same rules to apply to this contract, which was initially oral, but was then spread upon the record. Utilizing them, we are satisfied that the statement, "[t]he insurance will be maintained until pay status of the pension," unambiguously required that insurance in the amount of two and one-half times defendant's salary as of June 24, 2008 and naming plaintiff as beneficiary to that extent be maintained until such time as defendant's pension reaches pay status. Otherwise, if defendant were to expire prior to the time that her pension commenced, plaintiff would be deprived of his right to his negotiated portion of that pension as well as its functional equivalent in insurance. We find that the parties did not intend that result at the time they placed their agreement on the record on June 24, 2008. The last sentence of paragraph 13 of the amended dual judgment of divorce shall therefore be stricken.

At the May 28 hearing, the judge invited the parties to return to court after the lunch recess if they wished him to resolve the remaining issues raised by plaintiff's January 26 letter. The parties did not return, and for that reason the judge deemed the remaining issues "abandoned." We concur, determining that plaintiff waived his right to further litigate the issues raised, manifesting that waiver by the failure to return to court for the afternoon session. Knorr v. Smeal, 178 N.J. 169, 177 (2003); Spaeth v. Srinivasan, 403 N.J. Super. 508, 514 (App. Div. 2008). Moreover, we find the remaining issues raised by plaintiff to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed.

20110602

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