October 4, 2011
STEVEN T. MULLER, PLAINTIFF-APPELLANT,
KAREN MULLER, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-4272-90.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Ashrafi and Fasciale.
In this post-divorce judgment matrimonial case, plaintiff- husband appeals from a December 16, 2010 order denying his motion to compel the sale of the marital home. He contends primarily that the motion judge erred by (1) conducting an off- the-record interview of the parties' daughter, and (2) ignoring the terms of the Property Settlement Agreement (PSA). Although we agree that the interview should have been recorded verbatim, the sale of the property was unwarranted because the husband relinquished his interest in it. We affirm.
The parties were married for seventeen years and had a daughter together. In 1990, when their daughter was eleven years old, they divorced and entered into a PSA which provided, in pertinent part, that:
A. Husband and Wife agree to divide equally the personalty . . . upon sale of the premises or child's emancipation, whichever shall first occur.
B. Upon execution of contract of sale of the above premises, Husband agrees to put his interest in the marital home in trust for Child.
A. Husband agrees to pay the mortgage payments [on the marital home] . . . until the time that child graduates from college, or reaches the age of 22, whichever shall first occur[.]
In 1999, the husband defaulted on his mortgage payments and the mortgagee instituted foreclosure proceedings. In July 2000, the husband owed the lender $55,160, but he remained unable to pay. As a result, the wife borrowed $60,000 and refinanced the loan to satisfy the debt he created. On May 2, 2000, the husband executed a deed and conveyed to the wife his ownership interest in the property for consideration of $50,000. As a result, the wife exonerated him from the debt that he incurred by defaulting on his mortgage payments. At this point, their child was twenty-one years old and had graduated from college.
On September 3, 2010, the husband filed a motion in aid of litigant's rights. He sought to (1) compel the sale of the home; (2) order the wife to pay counsel fees; (3) compel the wife to cooperate with the sale; and (4) transfer to him one- half of the sale proceeds. The husband contended that his conveyance of title to the wife was not intended to relinquish his interest in the property, but rather, to avoid his creditors. He also argued that he signed the PSA without fully reading it, the trust provision in the PSA was a mistake, and the wife waived the daughter's interest in the property.
On September 29, 2010, the wife filed opposition and a cross-motion for counsel fees. She argued that the husband defaulted on the loan, she refinanced the mortgage to prevent a sheriff's sale, and the husband transferred his interest in the property to be relieved of his debt. She explained that she paid off the mortgage arrears and fees associated with the foreclosure, and that she has resided in the home since the husband deeded the property to her. She denied waiving her daughter's interest in the property.
On October 28, 2010, the judge conducted oral argument and notified the parties that before rendering a decision he intended to interview the daughter (then thirty-two years old) "to hear [her] position regarding her interest in the [property]." The judge wanted to talk to the daughter because "any ruling I make one way or the other is going to have an effect on her." The husband's counsel stated that "I think we have to bring her in [to talk to the judge]." The following exchange at oral argument occurred:
Wife's counsel: Why don't you talk to her in chambers . . . Court: I would do that.
Wife's counsel: We don't even have to be here.
Court: [S]omebody [have her] reach out to me so she can come in. Husband's counsel: Absolutely.
Court: [I]f you want me to do it on the record, it's up to either one of you.
Wife's counsel: I'd rather not put her through that.
Court: All right. . . [I will] talk to her to get an idea what her thoughts are.
Husband's attorney: Right.
The judge then stated that "absent an affirmative, voluntary waiver of her interest, . . . [he] would issue [his] ruling in accordance with the terms of the PSA." On November 10, 2010, the judge interviewed the daughter in chambers off the record. On December 16, 2010, the judge continued oral argument on the motions and rendered his oral opinion. The judge found that the daughter did not waive her interest in the property. He concluded that the husband had relinquished his interest in the property, and denied the motions. On February 14, 2011, the judge issued a written amplification of reasons, pursuant to Rule 2:5-1(b).
On appeal, the husband argues that:
POINT I: THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE THE REQUISITE VERBATIM RECORDING OF PROCEEDINGS CONDUCTED IN CAMERA.
POINT II: THE TRIAL COURT ERRED BY GIVING A NON-PARTY A RIGHT TO INFLUENCE ITS DECISION WITH UNRECORDED AND NOT FULLY DISCLOSED STATEMENTS IN AN EX-PARTE INTERVIEW.
POINT III: A CHILD IS NOT COMPETENT TO FORM AN OPINION ABOUT THE CONTENTS OF THE PARENTS['] PROPERTY SETTLEMENT AGREEMENT.
POINT IV: THE TRIAL COURT ERRED BY GIVING THE ADULT CHILD AN INTEREST IN THE MARITAL RESIDENCE WHILE IGNORING THE SETTLOR OF THE TRUST.
POINT V: THE PROPERTY SETTLEMENT AGREEMENT CONTAINS EVIDENCE OF THE PARTIES' INTENT THAT THE PLAINTIFF RECEIVE A MONETARY SHARE AT CLOSING.
POINT VI: MUTUAL MISTAKE REQUIRES REFORMATION OF THE PROPERTY SETTLEMENT AGREEMENT.
We begin by addressing the husband's contention, raised for the first time on appeal, that the judge erred by conducting an off-the-record interview of the daughter. "[A]ll proceedings in court shall be recorded verbatim . . . ." R. 1:2-2. "Although the rule does not expressly so state, there is no question as to the necessity of making a verbatim record of proceedings or parts of proceedings conducted in camera." Pressler & Verniero, Current N.J. Court Rules, comment 3.2 on R. 1:2-2 (2012). Here, it was procedural error for the judge to interview the adult daughter off the record. In affirming the order under review, however, we have not considered the information learned during the interview. Thus, the error is not capable of producing an unjust result.*fn1 R. 2:10-2.
Our review of a trial court's findings of fact is limited. Generally, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Roe v. Roe, 253 N.J. Super. 418, 432 (App. Div. 1992). The judge's finding that the husband relinquished his interest to the property, is supported by substantial, credible evidence. In his amplification of reasons, the judge stated that [the husband] relinquished all of his right, title, and interest in and to the [property] by virtue of his execution and delivery of a Bargain and Sale, with Covenants Against Grantors' Acts on May 2, 2000. The deed stated a consideration of [$50,000]; [the husband] was exonerated from liability on the note and mortgage that was in foreclosure due to his failure to make the mortgage payments; and [the husband] was not liable on the new note for which [the wife] bore exclusive liability.
Any potential interest that the husband had in the property was conveyed to the wife in 2000. Her payment of his financial obligations under the old mortgage was the consideration for the deed. The husband lost his ability to compel the sale of the home once he conveyed his interest in the property. We have considered the entire record and conclude that, because the husband relinquished all rights to the property, the remaining issues need not be addressed.