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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...