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Gordon C. Saunders, Jr v. Nancy M. Carr-Saunders

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 27, 2012

GORDON C. SAUNDERS, JR., PLAINTIFF-APPELLANT,
v.
NANCY M. CARR-SAUNDERS, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1585-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 any rights he may have had.

Not until now when [husband] is seeking to block [wife's] right to a share of his pension, is he seeking enforcement. He provides no justifiable excuse why he has waited three years to act on any rights he may have had. In fact, it is not clear that he had any claim against [wife]. Moreover, [wife] has been prejudiced by [husband's] unreasonable delay in seeking enforcement and as a result the doctrine of laches will equitably bar [husband's] claim for relief.

Finally, with regard to husband's application for counsel fees, the court stated "[t]here are no other court orders for counsel fees and this court will not entertain any applications now for nunc pro tunc contribution to past expenses for counsel fees." The court concluded that husband was only entitled to $1500 in upaid counsel fees. The present appeal followed.

Husband raises the following points on appeal for our consideration:

POINT I

THE COURT ERRED IN FAILING TO MAKE ADEQUATE FINDINGS OF FACT AND CONCLUSIONS OF LAW.

POINT II

THE DOCTRINE OF LACHES WAS WRONGLY APPLIED BY THE COURT TO BAR THE CLAIMS FOR RELIEF SOUGHT BY THE PLAINTIFF.

POINT III

THE COURT ERRED IN FAILING TO ENFORCE THE RIGHTS OF PLAINTIFF TO RELIEF AGREED TO UNDER THE PARTIES AMENDED JUDGMENT OF DIVORCE AND CONTAINED IN SUBSEQUENT ORDERS. POINT IV

THE COURT ERRED IN FAILING TO ORDER ORAL ARGUMENT AND/OR A PLENARY HEARING ON THE ISSUES PRESENTED BY PLAINTIFF.

I.

A trial court's findings of fact "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). This is especially true in family courts, which have "special jurisdiction and expertise in family matters. . . ." Id. at 413. "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless it is convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We owe no such deference, however, to the Family Part judge's legal conclusions, which we review de novo.

First the judge found that husband failed to demonstrate any "compelling showing" entitling him to relief from that part of the FJOD requiring equitable distribution of his pension. We agree.

In seeking this relief, husband argued that his obligation should be eliminated because wife failed to pay to him $7858, the difference between the $68,981.94 for which the West Virginia property was sold, and the $76,840 wife was required to pay to him under the FJOD, representing his share of the equitable distribution of the former marital home. In addition, husband pointed to Judge O'Brien Kilgallen's September 11, 2009 order stating that he was not required to divide his pension until wife satisfied her equitable distribution obligation with respect to the former marital home.

"'[A]pplications for relief from equitable distribution provisions contained in a judgment of divorce are subject to [ Rule 4:50-1] and not, as in the case of alimony, support, custody, and other matters of continuing jurisdiction of the court, subject to a "changed circumstances" standard.'" Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004) (quoting Pressler, Current N.J. Court Rules, comment 1.7 on R. 4:50-1 (2004)). The Rule sets forth six categories upon which relief may be granted:

(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

[R. 4:50-1]

As we discuss below, the fact that wife has failed to pay the $7858 should, if still unpaid, result in an adjustment in the amount of the pension proceeds she receives, but does not otherwise justify a complete elimination of husband's obligation to equitably distribute his pension in accordance with the FJOD. Husband, with the sale of the West Virginia property, realized approximately ninety percent of the $76,840 to which he was entitled. This shortfall hardly justifies the drastic relief sought. Thus, the motion judge properly denied this relief.

II.

In denying husband's application for reimbursement of expenses he incurred in preparing the West Virginia property for sale, the court reasoned that there were no prior orders that compelled wife to contribute to any of these expenses incurred by husband. We disagree. Judge O'Brien Kilgallen's order provided for further proceedings, if necessary, to address additional issues, which we are satisfied include reasonable expenses husband incurred to sell the West Virginia property, which was only necessitated by wife's willful violation of prior orders related to the sale of the marital home. To the extent husband incurred expenses in order to obtain that which he was awarded in equitable distribution but which wife refused to satisfy, he is entitled, in a hearing, to demonstrate the necessity and reasonableness of the expenses incurred.

In view of our remand to consider the expenses incurred in connection with the sale of the West Virginia property, husband should be permitted to revisit the issue of counsel fees, and, if wife has not yet paid the balance due to husband, representing his share of the equitable distribution of the former marital home, the court is to conduct further enforcement proceedings. We are satisfied the motion judge misread Judge O'Brien Kilgallen's order as providing that the deeding of the West Virginia property over to husband would fully satisfy wife's equitable distribution obligation.

III.

Turning to husband's counsel fee award, Rule 1:10-3 expressly provides that "[t]he court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule." The motion judge noted that other than the November 12, 2008 order awarding husband $1500 in counsel fees, there were no prior orders entered awarding such fees, and the court declined to "entertain any applications now for nunc pro tunc contribution to past expenses." This finding overlooks the express provisions of Judge O'Brien Kilgallen's September 11, 2009 order that not only suspended husband's obligation to divide his pension with wife until he realized his full share of equitable distribution, but also provided for further proceedings to address additional issues, if necessary, including counsel fees. Given wife's prior and repeated history of non-compliance with prior court orders, it is apparent that Judge O'Brien Kilgallen did not want to preclude husband from seeking further relief in the future in connection with any subsequent enforcement actions. Because husband was the prevailing party in the present action as to the $1500 outstanding counsel fee award, which wife had not satisfied for more than two years, the court should have considered whether husband was entitled to an award of counsel fees.

Affirmed in part, reversed and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction.

20120827

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