On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1585-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Sapp-Peterson and Ostrer.
Plaintiff appeals from a post-judgment order denying his motion seeking to enforce the terms of a final judgment of divorce (FJOD) directing defendant to pay $76,840, representing his share of equitable distribution. We reverse that portion of the order denying enforcement of the outstanding deficiency occasioned by the sale of the West Virginia property, from which husband netted less than his share of the equitable distribution of the marital home, as well as the denial of husband's application to recover expenses incurred in connection with the sale of the marital home, including counsel fees. We otherwise affirm.
The parties were divorced on April 24, 2008. Thereafter, an agreement reached between the parties was incorporated into an amended FJOD. Included in the amended FJOD is paragraph twenty, addressing the marital home, which provides, in pertinent part:
The parties own a one-family home located [in] Hazlet, New Jersey, that is titled in the name of the Wife only[,] which was the "marital home". This home is occupied by the Wife and children[,] and Wife shall continue to have sole possession and use of same.
The parties have agreed that the Wife shall have sole possession, ownership, title and use of the marital home and she shall refinance the property to remove Husband's name from the mortgage (if necessary) within ninety (90) days of May 1, 2008 and shall pay Husband by that time the sum of $76,840 as and for his equitable share of the marital home with other credits and debits as set forth below. Should the Wife fail to pay the Husband hereunder[,] then the marital home shall be listed for sale and the proceeds shall be divided in the same dollar manner as set forth herein.
Wife failed to pay husband the $76,840 in accordance with the terms of the judgment, necessitating the issuance of numerous enforcement orders, including arrest warrants and, at one point, wife's incarceration overnight. At the same time that wife was ignoring court orders, husband claimed that wife failed to pay the mortgage. According to husband, the condition of the former marital residence was so deplorable, it could not be successfully shown or sold. Husband succeeded in securing an order directing wife to deed over to husband inherited property wife owned in West Virginia. The order, dated September 11, 2009, entered by Judge O'Brien Kilgallen, suspended husband's obligation to divide his pension with wife until he realized his full share of equitable distribution, including his equitable share of the former marital home. The order also provided for further proceedings to address additional issues if necessary, including counsel fees.
The sale of the West Virginia property did not net husband the full amount of his share of equitable distribution. On February 16, 2011, husband filed a motion seeking, among other relief, to recover the difference, as well as reimbursement for expenses he incurred in preparing the West Virginia property for sale, in addition to counsel fees. He also sought relief from his obligation to share his pension with his wife, until his rights to equitable distribution were satisfied. By order dated April 7, 2011, a different judge denied husband's motion without oral argument, although oral argument had been requested.
Additionally, although the motion had been marked unopposed, the court noted in its order that wife filed an untimely response and, as such, the court was treating the motion as "uncontested although the court has considered her response." The court denied the motion.
In an accompanying statement of reasons, the court found husband had failed to make "a compelling showing . . . that any shortfall he may have suffered entitles him to the drastic remedy of modification of the final judgment of divorce" that would relieve him of the obligation to share his pension with wife. In declining to award husband expenses incurred in the sale of the West Virginia property, the court reasoned that "[n]o prior orders . . . have compelled [wife] to contribute to these expenses and [husband] has never sought contribution from [wife]." As to husband's request that the court enforce the November 12, 2008 order assessing a penalty against wife for "each and every day that [wife] fails and refuses to deliver the [former marital] premises to [husband] after December 15, 2008[,]" the court found there was no evidence that husband previously sought to enforce this penalty nor proof that had enforcement been ordered, husband would have been entitled to receive any of the proceeds of the sanctions. The court noted that generally enforcement actions brought pursuant to Rule 1:10-3 are intended to facilitate enforcement of orders, not to punish. Additionally, the court noted:
With the conveyance of the West Virginia property the order was effectively enforced.
If he was not made entirely whole from the proceeds of the sale he had an obligation to promptly assert ...