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Margie G. Montgomery, F/K/A Margie Coles v. Jessie L. Coles

July 25, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1366-09.

Per curiam.


Submitted February 28, 2011

Before Judges Kestin and Newman.

The parties were divorced in a judgment entered and filed on September 29, 2009, "pursuant to plaintiff's notice of equitable distribution . . . ." The notice had specified that the parties' home would be "sold at market value" with the proceeds "split three ways" between plaintiff, defendant and plaintiff's niece, by reason of "the money [the niece] spent on home improvements, bills, car and SUV insurance, etc." Plaintiff was represented by counsel in this proceeding; defendant appeared pro se.

Thereafter, plaintiff filed a pro se motion dated December 4, 2009, returnable on January 8, 2010, asserting that defendant was not complying with the judgment of divorce, and seeking defendant's removal from the premises so that plaintiff could "clean it up to be sold and looked at by real[]tors." Defendant, now represented by counsel, responded with motions of his own, dated December 14, 2009, also returnable on January 8, 2010, seeking reconsideration of an order entered on November 4, 2009, and vacation of the "default" judgment of divorce.

The reference in defendant's motion to a November 4 order was to the judgment of divorce, which, although it contains an entry date and filing stamp of September 29, 2009, displays a "received" stamp from the Family Division with the November 4, 2009 date. Defendant, in his supporting certification, states that the judgment of divorce was mailed to him on November 24, 2009, as indicated by a postmark on an envelope from the Family Part, and that he received it on November 25. He asserts, further, that he had received an August 20, 2009 notice "informing [him] that [he] should appear for a default hearing on September 2, 2009, but he "did not understand what that meant." He had received from plaintiff a notice of equitable distribution dated June 25, 2009. He "appeared in court on September 29, 2009 because [plaintiff] told [him] that [he] had to be there" but he "did not understand what was happening in the courtroom." The transcript of the September 29 proceeding has not been included in the record on appeal.

On January 15, 2010, the rescheduled return date of the motions, the trial court heard the testimony of the parties and their arguments. In her oral opinion disposing of the motions, the trial court judge found that plaintiff had "acquired an interest in the house" that had been dealt with in the judgment of divorce, and that defendant had been "unable to provide . . . any proof of payment" for maintenance or ownership to support his contention that he had acquired title to the home free and clear of any mortgage obligations or other financial considerations before the parties began living there together.

An order was entered on January 20, 2010 formalizing the trial court's findings and conclusions. It contains seven numbered paragraphs. Defendant's notice of appeal states that he is appealing from paragraph five; and his brief contains a single point on appeal: "The court's ruling was not supported by the weight and sufficiency of the evidence." Several paragraphs of the order pertain to the issues on appeal.

The first paragraph denies, without prejudice, plaintiff's motion for defendant's removal from the premises, and states: "The purpose of the Court's denial is to enable [] plaintiff and [defendant's attorney] to engage in negotiations to determine whether there is any way to allow [defendant] to remain in the property and buy out the interest of [] plaintiff." The second paragraph establishes a March 15, 2010 deadline for these negotiations. If "the parties are unable to agree, the property shall be listed for sale . . . with a licensed realtor . . . The parties are to be guided by the recommendations made by the realtor in the amount of the purchase price . . . ." The fifth paragraph denies defendant's motion to modify the equitable distribution provision of the judgment of divorce regarding the parties' respective interests in the proceeds from the sale of the marital home. The seventh paragraph denies defendant's motion to vacate the default judgment of divorce, stating:

Defendant provided no valid reason for his failure to answer and in fact the court permitted him (on September 29, 2009, the day for the hearing on the notice of equitable distribution filed by the plaintiff), to testify despite the default having been entered against him. The court deemed it to be important to obtain as much factual information as possible on that date since the plaintiff's request in equitable distribution was to sell the former marital home and equally share the proceeds. Displacement of the defendant was a serious request and the court felt it imperative that the defendant participate in that portion of the hearing. Despite the testimony of the defendant, the plaintiff's request for sale and equal distribution of the proceeds of the former marital home was granted.

In his appeal from paragraph five, defendant contends that the trial court judge misunderstood the facts of the matter and, therefore, erred in not granting the motion for reconsideration. The judge, he argues in part, did not understand that [defendant] owned the home prior to his marriage to [plaintiff]. He provides a view of the facts based on the fact that the parties married in 1997 and the house was deeded to defendant in 1992. He contends, based on the facts he stresses, that the "50/50 [equitable distribution] split was . . . inappropriate and arbitrary," and that "[a]t best, [plaintiff] was only entitled "to a share of the increase in value of the house from the date of the marriage until the filing of the complaint."

In her brief, plaintiff, pro se on the appeal, argues that the trial court judge had an adequate understanding of the facts when she made the equitable distribution award. Plaintiff has contended throughout that, in May 1987, defendant asked her to live with him "because he needed help . . . . [He] was behind in mortgage payments . . . . [and she and her father] helped [defendant] put the mortgage back up to date."

The parties agree that, when they began living together, the home was in the name of another person. The detailed facts of that state of ...

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