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Christopher M. Pesce v. Diane Pesce

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 1, 2011

CHRISTOPHER M. PESCE, PLAINTIFF-APPELLANT.
v.
DIANE PESCE, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1606-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 26, 2011

Before Judges Sabatino and C.L. Miniman.

Plaintiff Christopher M. Pesce appeals from a January 22, 2010, final post-judgment order compelling him to list for sale certain real estate owned by him and to use the net proceeds to satisfy his financial obligations delineated in an order dated November 13, 2009. Because plaintiff did not appeal from the 2009 order, and because the issues raised on appeal go to the merits of that order, we affirm.

The parties entered into a mediated Property Settlement Agreement (PSA) on August 26, 2005, which was incorporated into their April 26, 2006, judgment of divorce. In addition to alimony and child support, the PSA provided for the distribution of certain real estate and plaintiff's electrical contracting business. Defendant was to retain property she inherited in Del Rey Beach, Florida. Two other pieces of property were jointly owned, the marital residence on Locust Street in Closter and property used for plaintiff's business on Perry Street in Closter.

Before executing the PSA, the parties refinanced the marital residence, borrowing a sufficient sum of money to pay off two business loans and a mortgage on the Perry Street property in the total sum of $276,658.56. The remainder of the $412,000 loan paid off the first mortgage on the marital residence and miscellaneous closing costs.

The PSA allocated plaintiff's business and the Perry Street property, both of which were free and clear of any debts or obligations, to him. The marital residence, now subject to a $412,000 mortgage, was allocated to defendant. Plaintiff was to remain on the mortgage and "agree[d] to pay the mortgage and real estate taxes for the home." The PSA further provided that the payment for the mortgage and taxes was not to be considered alimony and was not to be deemed income to defendant. If defendant decided to sell the property, "she may keep any net proceeds once the mortgage is paid off." The agreement further provided that plaintiff was to maintain $150,000 in life insurance with defendant "as beneficiary until the mortgage on the Locust Street property is paid off." Additionally, if plaintiff predeceased defendant "and there is still a mortgage on 10 Locust Street, the Perry Street property[]will be sold to pay off any existing mortgage on 10 Locust Street."

Plaintiff defaulted on his obligation to pay the mortgage, and the mortgagee instituted a foreclosure action on June 8, 2009. Thereafter, defendant filed a notice of motion to enforce litigant's rights, seeking an order compelling plaintiff to bring the mortgage current and for other relief. Plaintiff filed a notice of cross-motion on October 27, 2009, seeking an order modifying the PSA based on changed circumstances and alleged mutual modification.

The motion and cross-motion were resolved by the Family Part judge on November 13, 2009. With respect to the mortgage payment, the judge ordered plaintiff to bring any and all mortgage payments up to date within twenty-one days of the date of the order. He further provided that, if plaintiff failed to comply with the order, defendant could apply for an order compelling plaintiff to either sell or encumber his property on Perry Street to provide funds sufficient to secure payment of the mortgage on the marital residence. He also ordered plaintiff to reimburse defendant for mortgage payments she had made in an effort to avoid foreclosure. Neither party appealed that order.

When plaintiff failed to comply with the November 13, 2009, order, defendant filed another motion in aid of litigant's right made returnable on January 8, 2010. She sought an order compelling plaintiff to sell the Perry Street property and appointing an attorney-in-fact "to execute any and all documents necessary to consummate the sale." She also sought permission to use the net proceeds from the sale of the Perry Street property to repay her for mortgage payments she made on the marital home, to satisfy outstanding counsel fees, and to apply the balance toward the mortgage on the marital residence. Defendant certified that plaintiff had taken no steps to comply with the November 13, 2009, order, and that she had made the October and December payments on the mortgage and arranged a loan modification with the bank, which was apparently contingent on plaintiff paying the mortgage.

Plaintiff opposed the motion in aid of litigant's rights, certifying that he was engaged in the loan modification process, which was ongoing. As such, a sale of the Perry Street property was not necessary. He pointed out that the loan had been in default since February 1, 2009, and the balance of $403,439.04 had been accelerated. He certified that he had no resources to pay the mortgage. He described the Perry Street property, explained that it would not likely realize more than $200,000 as a gross sale price, and advised the judge that, if the property were ordered to be sold, it would result in putting him out of business, rendering him unable to pay child support and alimony.

Defendant's motion was argued on January 22, 2010. At that time, the judge ordered plaintiff to list the Perry Street property for sale on or before February 8, 2010. The net proceeds were to be used to satisfy plaintiff's financial obligations set forth in the November 13, 2009, order. The judge also provided in the order that, if plaintiff failed to comply, defendant's attorney was to forward the January 22, 2010, order to an attorney appointed by the court who was to sign all documents necessary to list the property for sale. This appeal followed.

Plaintiff raises the following issues for our consideration:

POINT I - THE TRIAL COURT SHOULD NOT HAVE RESOLVED THE PARTIES'[ ] DISAGREEMENT OVER THE LANGUAGE IN THE SPOUSAL MEDIATION AGREEMENT AS EXPRESSED IN THEIR CONFLICTING AFFIDAVITS WITHOUT A PLENARY HEARING[.] THE ORDER AND JUDGMENTS MUST BE REVERSED AND THE MATTER REMANDED FOR A PLENARY HEARING.

POINT II - THE MEDIATION AGREEMENT ENTERED INTO WITHOUT INDEPENDENT LEGAL COUNSEL SHOULD NOT HAVE BEEN ENFORCED BUT SHOULD HAVE BEEN SET ASIDE AS HAVING BEEN TAINTED BY A CONFLICT OF INTEREST.

POINT III - THE DEFENDANT IS BARRED FROM SEEKING ENFORCEMENT OF THE CLAUSE CONCERNING PLAINTIFF'S OBLIGATION TO MAKE MORTGAGE PAYMENTS IN THE FAMILY ACTION BY THE ENTIRE CONTROVERSY DOCTRINE BECAUSE SHE FAILED TO ASSERT THE CLAIMS IN THE FORECLOSURE ACTION.

None of these issues was raised in opposition to entry of the January 22, 2010, order----the only order from which plaintiff has appealed. It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Such an opportunity existed here, and none of the questions raised "go[es] to the jurisdiction of the trial court or concern[s] matters of great public interest." Reynolds, supra, 58 N.J. Super. at 548.

We recognize that some of the issues raised were presented to the judge in opposition to the relief granted on November 13, 2009. We need not delve into the niceties of whether that order was final for purposes of appeal. Suffice it to say that the exclusion of the earlier order from the notice of appeal deprives us of jurisdiction to consider the issues respecting it. 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004); Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002); Campagna v. Amer. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001).

Affirmed.

20110801

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