On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-0117-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Waugh, and St. John.
Plaintiff Frank J. Siefert appeals from the Family Part's September 23, 2011 post-judgment order imposing sanctions. We vacate the order on appeal and remand to the Family Part for further proceedings consistent with this opinion.
We discern the following facts and procedural history from the record on appeal.
Frank and Nancy Siefert*fn1 married in 1984, and divorced in January 2011. At the time of their divorce, they executed a property settlement agreement (PSA), which was attached to their final judgment of divorce.
The PSA required the parties to exchange lists of the personal property they acquired during the marriage that each wanted to retain. The PSA further provided that if the parties could not agree on the distribution of the property within thirty days after Frank received Nancy's list, the matter would be referred to arbitration before Maryann Rabkin, an attorney, and that the parties would divide the cost of arbitration equally.
The PSA further provided for the disposition of the marital residence. Nancy was required to continue contributing to mortgage payments on the residence through the end of January 2011, after which they would become Frank's sole obligation. Frank was required to transfer $127,000 to Nancy as payment for her equitable interest in the residence, which payment was to be made by February 5, 2011. Nancy was obligated to execute a quitclaim deed transferring her interest in the residence to Frank once she received the payment and proof that Frank had satisfied the existing mortgage. The parties were to divide equally any escrow funds returned to them after Frank satisfied the mortgage.
Nancy filed a motion to enforce litigant's rights, which resulted in an order dated May 13, 2011. Nancy sought, among other relief not relevant to this appeal, to enforce (1) Frank's obligation to make the payment for her interest in the marital residence and (2) the arbitration requirement because the parties had been unable to agree on the disposition of all of the personalty. By the time the motion was decided, the first issue was moot because the payment had been made in the interim. However, the judge required Frank to pay interest for the period during which the payment was overdue. With respect to the personalty, the judge ordered the parties to contact Rabkin within ten days to arrange for the arbitration. Nancy was awarded $500 in counsel fees in connection with the motion.
On June 10, 2011, Nancy's attorney wrote to the motion judge, with a copy to both parties. He asserted that Frank had refused to comply with the arbitration requirement. Because Rabkin had gone on a lengthy vacation, the attorney asked the judge to appoint another arbitrator. Apparently at the request of the judge, Nancy's attorney ascertained that July 20 was the earliest date on which Rabkin would be available for an arbitration session, with other dates available thereafter. He conveyed that information to the judge in a letter dated June 29.
The motion judge brought the parties to court on July 13, at which time Frank appeared pro se.*fn2 The judge subsequently entered an order requiring the parties to participate in arbitration with Rabkin on or before July 31, with each party to provide a list of the items they wished to retain seven days in advance. The order further provided that any party failing to comply with its terms would forfeit his or her interest in the personalty and also bear the expenses of arbitration. The implementing order was filed on July 29.
On August 10, Nancy filed a second motion to enforce litigant's rights. She asserted that Frank had failed to participate in the arbitration, and sought an order compelling him to make all of the personal property she requested available to her for pickup. She also sought sanctions and counsel fees. In her supporting certification, Nancy alleged that Frank failed to contact Rabkin as required by the July 29 order.
On August 16, Frank filed his own motion to enforce litigant's rights. Frank asserted that Nancy had failed to pay her share of the January 2011 mortgage payment, but instead caused it to come out of the escrow account. He also alleged that she subsequently refused to send him his share of the escrow released when he paid off the mortgage. He sought an accounting of the escrow funds and payment of his share, with interest from the time the funds were received by Nancy. He also sought to enforce Nancy's obligation to provide him with the quitclaim deed for the former marital residence.
Frank, who asserted that he had not been aware of Nancy's motion when he filed his motion, responded to her motion on September 7. He certified that he had spoken to Rabkin's office twice on June 16 about dates for the arbitration, telling her and her assistant that he would make himself available in June or July.*fn3 Frank further certified that during these conversations, Rabkin informed him that she had given Nancy three possible dates for arbitration, and that she would let him know when Nancy selected a date. Frank also asserted that he spoke with Rabkin's office on July 28, ...