On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. FM-12-958-10E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Kennedy.
Defendant Dale Wyckoff appeals from an order entered by the trial court on September 23, 2011, which required that he pay plaintiff Jean Wyckoff $10,000 plus attorney's fees in the amount of $1530. We reverse.
This appeal arises from the following facts. The parties were married on January 4, 1999. Two children were born of the marriage. The parties divorced on January 27, 2004, although they continued to cohabit until September 16, 2009.
On November 5, 2009, plaintiff filed an action for separate maintenance, specific performance and quantum meruit relief. A stipulation of settlement was filed with the court on December 6, 2010. Section 14 of the stipulation stated that defendant would "continue to list for sale" certain properties in East Brunswick and Point Pleasant, and upon the closing of sale on either property, defendant will "pay plaintiff $80,000 from the net proceeds, subject to any credits" to which she was entitled under the stipulation.
Thereafter, plaintiff filed a motion seeking authorization to relocate with the children to California. The parties appeared in court on June 23, 2011. The trial court entered an order dated July 12, 2011, which stated that plaintiff's request to relocate was withdrawn, without prejudice. The order also stated in pertinent part:
3. The defendant still owes the plaintiff the sum of $50,000 pursuant to paragraph 14 of the December 6, 2010 Stipulation of Settlement between the parties. The defendant's attorney will transfer $40,000 to the plaintiff's attorney's trust account.
4. The parties will exchange their respective bills for credits and debits through their attorney's offices within 10 days of June 23, 2011 to determine how much of the remaining $10,000 owed to the plaintiff and being held in defendant's attorney's trust account will be paid.
On July 27, 2011, plaintiff filed a motion in the trial court to compel defendant's attorney to transfer to plaintiff $10,000 being held in his trust account, and for an award of counsel fees and costs related to the motion. In her supporting certification, plaintiff stated that section 14 of the December 6, 2010 Stipulation of Settlement required defendant to pay her $80,000. According to plaintiff, defendant had "continually procrastinated in providing this money" to her.
Plaintiff noted that the July 12, 2011 order indicated that defendant still owed her $50,000. She said that defendant's attorney had transferred $40,000 to her, as required by the order.
Plaintiff additionally stated that the July 12, 2011 order required that the parties exchange their respective credits and debits regarding the remaining $10,000, within ten days. Since that date fell on July 4, 2011, plaintiff's attorney wrote to defendant's attorney and said that the exchange should occur no later than July 5, 2011. Plaintiff stated that defendant had claimed that there were "offsets" owed to him. On July 5, 2011, plaintiff provided "proofs" which she said refuted those claims. As of July 27, 2011, defendant had not responded.
Plaintiff said that she had been left with no alternative but to file a motion to compel defendant to transfer to her the $10,000 that was being held in the trust account of defendant's attorney. Plaintiff said that defendant was withholding monies that were "rightfully due" to her and defendant "should not be rewarded for such behavior." ...