On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-183-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Fisher and Nugent.
Following seven days of trial in this partition action, the trial court entered an order for judgment providing, among other terms, that the parties' house be sold; that the net proceeds be allocated two-thirds to plaintiff Jean Lee and one-third to her daughter, defendant Elizabeth Lee, subject to adjustments for credits; and that defendant pay $179,376.05 "for contribution toward the legal fees of plaintiff, Jean Lee." Defendant appeals from the provisions of the April 26, 2011 order that fixed the credit she was to receive from the sale proceeds; and entered judgment against her for contribution toward plaintiff's attorney's fees. She argues that the money she contributed toward the maintenance of her and her mother's home exceeded the credit awarded by the court, and that the court had no authority to award counsel fees to plaintiff.
Having considered the parties' arguments in light of the record and the applicable law, we conclude that the court's determination of the credits due each party was supported by sufficient credible evidence in the record. We further conclude that the court had no authority to shift to defendant plaintiff's obligation to pay her own counsel fees. Accordingly, we reverse the award of counsel fees but otherwise affirm the judgment.
This family dispute centers around the home*fn1 (the property) that Jean Lee and her husband purchased in 1985. When they took possession of the property, their daughter, Elizabeth, who had lived with them all of her life, moved in with them. Although Jean's husband had the property built, he had their three daughters, Elizabeth, Deborah, and Linda,*fn2 named in the deed as joint tenants with rights of survivorship. According to Jean,*fn3 her husband had the property titled in their daughters' names "[b]ecause if anything happened, he'd rather have them have the house. That was from him to his children."
Mr. Lee died in January 1988. In February 1999, Elizabeth, Deborah, and Linda executed a "corrective" deed conveying title to the property to Jean. According to a letter from the attorney who prepared the deed, "the property was suppose[d] to be conveyed to Jean back in 1985 and . . . she wanted to correct the error." Notwithstanding the attorney's statement, Jean explained that the 1999 conveyance occurred after a family dispute about another house that Jean's husband had built in Pennsylvania and deeded to his daughters. According to Jean, her daughters had argued about responsibility for maintenance and expenses of that house. Jean could not afford to maintain the Pennsylvania house, so despite her daughters' objections, she had them sell it. In order to avoid similar problems with the property, Jean had the deed changed so that title to the property was in her name. The deed was recorded on March 16, 1999.
Jean had the deed to the property changed again in October 2002, when she and Elizabeth decided to move into a townhouse. Jean testified that based upon the advice of her accountant concerning tax and other considerations, she had the deed changed to reflect that she and Elizabeth owned the property as "Joint Tenants with Right of Survivorship."*fn4 Elizabeth testified that Jean changed the deed to prevent Deborah and Linda from carrying out threats to eject Elizabeth from the property. After learning of deficiencies in the townhouse, Jean and Elizabeth decided not to purchase it.
In 2004, Elizabeth received a substantial inheritance. Desiring to buy the property, Elizabeth discussed the matter with Jean, who said that she would take $600,000, but Elizabeth would only have to pay her $400,000. Jean intended to gift $200,000 to each of her other daughters.
In 2005, Elizabeth had an attorney prepare a contract of sale in which she agreed to purchase the property for $400,000. The contract recited that both "[Jean] and [Elizabeth] have borrowed $250,000 for purposes of improvement of the Property which is secured by a mortgage on the Property which [Elizabeth] paid exclusively[.]" The contract further recited that the value of the property was $850,000, that Jean desired to gift one-third of the net proceeds to Elizabeth, and therefore Elizabeth would purchase the home at the reduced price of $650,000 less the mortgaged debt, for a net purchase price of $400,000.
The attorney also prepared other closing documents. When Elizabeth's attorney mailed Deborah and Linda affidavits of title and other documents, they did not reply to the letter. According to Deborah, she knew nothing about the proposed sale until she received the documents. Deborah testified that neither Jean nor Linda knew about the sale, and that Jean had not received any documents concerning the sale.
The letter was dated November 10, 2005. Deborah and Linda were upset about the letter and were also upset that neither they nor Jean knew anything about the proposed sale of the property. The situation generated considerable ill will among Jean and her daughters. The ill will and animosity peaked around Thanksgiving.
Jean spent Thanksgiving at Linda's home. Elizabeth testified that while her mother was staying with Linda, Elizabeth received a telephone message informing her that her mother had died and got paddled back[, and] it was my fault. They told me my mother said to tell me that I was not my father's child, and that she didn't want a girl, that she had tried to buy a boy, and she tried to buy my aunt's son for her child.
The message indicated that Jean was in the hospital and that Elizabeth was to be given no further information. Linda apparently had a "block system" on her phone that blocked Elizabeth's calls. Panicked, Elizabeth called area hospitals to try to obtain information concerning ...