On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FM-16-101-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2011
Before Judges Fisher, Baxter and Nugent.
Defendant Joseph Iudici appeals from parts of several Family Part orders that: required him to pay plaintiff Lisa Iudici $10,000, the balance owed for his purchase of her interest in their former marital residence; terminated the parties' obligation to arbitrate the cost of any damages allegedly caused by the plaintiff to the marital residence; denied his applications to modify alimony and child support; denied him a custody hearing; denied his motions for counsel fees and costs, and awarded plaintiff counsel fees. We affirm in part and reverse in part.
The parties married on January 27, 1987, and three children were born of the marriage. The parties were divorced on January 3, 2006, and the dual final judgment of divorce incorporated their property settlement agreement (PSA). Defendant agreed in the PSA to pay plaintiff weekly child support of $300 for the younger two children, for whom plaintiff was the parent of primary residence.*fn1 Defendant also agreed to pay plaintiff alimony of $300 per week for eight years. When the parties signed the PSA, plaintiff's imputed gross income was $28,000 and she received yearly rental income of approximately $45,000-$50,000; defendant's net income was approximately $130,000.
The PSA also provided, among other terms, that defendant would receive title to the marital residence in exchange for paying plaintiff $70,000; $60,000 by January 22, 2006, and $10,000 upon plaintiff leaving the marital residence. The parties were to videotape a "walk through" of the residence in order to establish its condition before transferring title to defendant. Plaintiff was entitled to remain in the residence until June 30, 2006, provided she paid defendant $2000 per month, which he would use to pay part of the mortgage, taxes, and insurance. Plaintiff was to leave the residence in the condition depicted in the videotape. If she caused damage to the residence, then instead of paying her the $10,000 balance, defendant was to deposit the money in defense counsel's trust account until the parties resolved any dispute about the cost of restoring the home's condition. If the parties could not resolve such a dispute within ten days of plaintiff leaving the residence, they were required to participate in binding arbitration before a designated arbitrator.*fn2
The parties' post-judgment motion practice began after plaintiff moved out of the marital residence in July 2006. In September 2006, the court entered two orders disposing of more than fifteen issues raised in the parties' cross-motions, including defendant's request to "be heard on the issue of damages to the [marital] home upon his obtaining all estimates and in the interim, [to be] permitted to set off $10,000 due to plaintiff." The court denied defendant's application concerning the marital residence because the PSA required the parties to arbitrate that dispute.
In April 2007, after the parties filed more motions, the court entered two additional orders that included provisions appointing the arbitrator designated in the PSA, requiring plaintiff to pay "her one-half share of the costs for the arbitrator immediately," and denying counsel fees to both parties.
A month later, in May 2007, the parties became embroiled in a custody dispute over their two youngest children. In August, the court entered consent orders that cancelled a plenary custody hearing, appointed a parent coordinator, and provided, in the event that either party wishes to reopen the custody and parenting time issues pending before the [c]court, after engaging in all reasonable efforts through the parent coordinator to address the trial and parenting issues by and between the parties, he or she, upon the request of their counsel, may contact the [c]court to arrange for a conference to schedule such further proceedings as may have been previously scheduled by the [c]court or as may be necessary under the circumstances at that time.
Defendant subsequently filed another motion that resulted in orders being entered on December 8, 2008; the first of the orders from which defendant appeals. Defendant had filed a motion in October 2008 to enforce litigant's rights, alleging that as the result of her violation of the April 13, 2007 court order and provisions of the PSA, plaintiff owed him in excess of $12,000. In addition, defendant alleged that he had incurred in excess of $20,000 as the result of plaintiff damaging the former marital residence and failing to pay her share of the arbitrator's fee.
In a cross-motion, plaintiff acknowledged owing some of the debt, alleged that defendant had not paid her money the PSA required him to pay from an annuity fund, and disputed his allegation that she had damaged the marital residence. She pointed out that his claim concerning damage to the marital residence included payments to an investigator, a locksmith, and a home inspector; expenses for mowing and cleaning; the purchase of power washing accessories; costs for opening the pool; and a deposit for a home office. She claimed she did not have the money to make the deposit to the arbitrator, alleged that defendant was using his superior financial position in an attempt to force her to agree to his demands, and argued that it was "foolhardy" to spend money for the arbitrator for the claims asserted by defendant.
In two December 2008 orders, the court established that plaintiff owed defendant $12,879.78; ordered plaintiff to make certain payments, including her share of the arbitrator's fee; and arranged for transfer to plaintiff of the money defendant owed her from his annuity. The court required the parties to pay their own counsel fees. The court denied defendant's request to have judgment entered against plaintiff "representing the amount that [p]laintiff's conduct has ...