On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1458-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 11, 2012 -
Before Judges Fuentes, Graves and Harris.
The parties were married in 1996, and their dual judgment of divorce (JOD) is dated November 9, 2010. Three children were born of the marriage. The oldest child is now thirteen years old, and the youngest child is five. Defendant Thomas King appeals from a post-judgment order dated April 4, 2011. For the reasons that follow, we affirm.
Prior to the entry of the JOD, the parties agreed they would share joint legal custody, and they resolved all custody and parenting time issues. In a Consent Judgment dated December 9, 2009, the parties further agreed "to work together to make decisions that are in the best interests of their children." The parties also entered into a matrimonial settlement agreement (Agreement), which was incorporated into the JOD, and the Agreement ratified the terms of the Consent Judgment. With regard to the former marital home, paragraph thirteen of the Agreement states:
The parties agree that, for purposes of equitable distribution, the marital home will have a value of $680,000. The Wife will buy the Husband's share based upon this agreed upon value, after deducting the mortgage (approximately $625,000) encumbering the marital home. The Husband shall receive fifty percent (50%) of the equity which shall be transferred to the Husband as part of the overall equitable distribution payments set forth below in paragraph 14. The Wife shall have exclusive possession of the marital home and the Husband shall cooperate by signing a Deed transferring all of his right, title and interest in the marital home to the Wife. The Wife shall be responsible for refinancing the mortgage or she shall assume the mortgage so that the Husband has no further obligation or responsibility on the mortgage to the mortgagee, and she shall do so within ninety (90) days. If the Wife fails to remove the Husband's name from the mortgage and note within ninety (90) days, then the Husband shall have the option of buying out the Wife for the same value and in the same manner as described above, and if he chooses not to, then the home shall be listed for sale immediately with a mutually agreed upon broker so that the mortgage obligation can be paid and discharged and the Wife may then retain the entire proceeds from the sale.
Plaintiff was unable to refinance the mortgage within ninety days. After attempting unsuccessfully to negotiate an extension of time from defendant, she filed an ex parte order to show cause (OTSC) to extend the ninety-day deadline. In a supporting certification, plaintiff stated the bank had approved her mortgage loan application on December 22, 2010. Nonetheless, when she checked on the status of the loan, she was told that Patricia White, the mortgage loan officer at the bank, was on jury duty and the closing could not take place "until the trial [was] over and a verdict rendered."
On February 16, 2011, the court granted plaintiff's request for an OTSC and also granted plaintiff's request for a thirty- day extension of the ninety-day deadline for closing the mortgage. In a statement of reasons attached to the OTSC, the trial court found plaintiff had "been diligent" in her efforts to assume the mortgage, but the process was delayed through no fault of her own. The court found "that irreparable harm would result if Plaintiff and the minor children were forced to leave their residence simply because the bank handling Plaintiff's loan has been delayed in closing same." The OTSC was returnable on March 25, 2011.
Thereafter, on March 1, 2011, defendant filed a motion to enforce litigant's rights, which was scheduled for April 1, 2011. In a supporting certification, defendant requested an order directing plaintiff to cooperate in the sale of the former marital home to him and other relief, including reimbursement from plaintiff for her share of the children's horseback riding expenses and private school expenses.*fn1 With regard to the children's horseback riding expenses, defendant claimed he had revoked "his offer for equestrian activities" as of January 31, 2011.
Defendant also filed opposition to the OTSC entered on February 16, 2011. In a letter dated March 9, 2010, defendant stated he was not given notice of plaintiff's application prior to the entry of the OTSC, and he claimed there was no reason for the entry of an ex parte order. Defendant also claimed that the order "should be rescinded" based upon "plaintiff's failure to gather the documents and complete the necessary forms in order to [close] the loan in a timely manner."
In a responding certification dated March 15, 2011, plaintiff stated that the refinancing issue was moot because the closing occurred on March 2, 2011. Plaintiff also certified as follows:
Defendant does not show why the Court should not allow me to retain the house. I have removed him from the mortgage and refinanced. Defendant says during the litigation he wanted to retain the house. I wanted to retain the house, too. He moved out in October, 2009. Nobody forced him to move out and, certainly, no one was trying to cause him emotional pain. It was difficult for us to live together and not good for the children to have us living together. . . . Defendant chose to move out and take whatever he wanted from the house. I do not deny that we have joint custody of the children but this has been their primary home, and they have lived here with me.
On April 4, 2011, the court considered defendant's motion to enforce litigant's rights and plaintiff's cross-motion. In her cross-motion, plaintiff sought reimbursement from defendant for the children's expenses and to compel defendant to pay fifty percent "of the children's future dance, music and equestrian extracurricular activities." The court set forth its findings and conclusions in a ...