October 23, 2012
LILIANA WILSON, PLAINTIFF-RESPONDENT,
JAMES WILSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1089-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 13, 2011
Before Judges Carchman and Nugent.
Defendant James Wilson appeals from parts of a January 28, 2011 Family Part order that: adjudicated defendant in violation of litigant's rights because of his partial non-compliance with the parties' Supplemental Judgment of Divorce (SJOD); compelled him to make certain payments to plaintiff as required by the SJOD and previous court orders; entered judgment against him for counsel fees that the court had previously ordered him to pay to plaintiff; and required him to communicate with plaintiff about certain issues concerning their child. Defendant also appeals from the denial of his motion for reconsideration. The parties' dispute concerning the building in Romania appears to be moot as the result of bankruptcy proceedings. Otherwise, we affirm.
The parties married on October 23, 1993, and were divorced on April 14, 2009, when the court entered a Final Judgment of Divorce. The court entered a SJOD on June 1, 2010. Among its terms, the SJOD required the parties to continue to attempt to sell a boat they had listed for $139,900, and to divide the net proceeds upon its sale; provided that defendant would sell his business and its European counterparts, and, upon its sale, pay to plaintiff thirty-five percent of the net proceeds; and required that defendant sell a commercial building in Romania and pay to plaintiff an equal share of the net sale proceeds. The SJOD also required defendant to pay plaintiff annual alimony of $30,000 for seven years, provided that the parties would share joint legal custody of their child, denoted defendant as the parent of primary residence, and established a parenting time schedule, as well as child support obligations.
On October 23, 2009, after considering cross-motions the parties had filed, the trial court found defendant in violation of litigant's rights for not adhering to the parenting time schedule. Among other forms of relief, the court directed defendant to pay $7,075 representing plaintiff's counsel fees.
Additional motion practice ensued. In December 2010, plaintiff filed another motion to enforce litigant's rights. The court granted that motion in an order entered on January 28, 2011, supported by a written statement of reasons. Defendant filed a motion for reconsideration, which the court denied on March 18, 2011. Defendant appealed from those orders. Following the filing of defendant's notice of appeal, plaintiff filed a Chapter 7 bankruptcy petition. It appears that during the bankruptcy proceeding, the trustee accepted defendant's offer to pay $35,000 to buy out plaintiff's interest in the building in Romania.*fn1
Defendant raises the following issues on appeal:
THE COURT ERRED BY NOT DELETING THE FOLLOWING PARAGRAPHS OF ITS JANUARY 28, 2011 ORDER, SPECIFICALLY:
1) PARAGRAPH 1 OF THE ORDER WHICH FOUND DEFENDANT IN VIOLATION OF LITIGANT'S RIGHTS FOR FAILURE TO COMPLY WITH THE SUPPLEMENTAL JUDGMENT OF DIVORCE (SJOD) FILED ON JUNE 1, 2010, AND THE COURT ORDERS OF OCTOBER 23, 2009, MARCH 12, 2010 AND JUNE 28 2010, WHICH REQUIRED DEFENDANT TO NOTIFY PLAINTIFF IN WRITING OF THEIR SON['s] EXTRA CURRICULAR SCHOOL ACTIVITIES WITHOUT ANY FACTUAL BASIS FOR THE SAME.
2) THE PORTION OF PARAGRAPH 3 THAT REQUIRED DEFENDANT TO PROVIDE PLAINTIFF WITH AN UPDATED CASE INFORMATION STATEMENT INCLUDING HIS 2010 W-2'S, 1099'S AND 2009 FEDERAL, STATE AND BUSINESS TAX RETURNS DESPITE THE FACT THAT COMMENCING FEBRUARY 11, 2011 DEFENDANT HAS PAID PLAINTIFF THE SUM OF $2,000 PER MONTH TOWARD THE $49,919.45 THE COURT AWARDED PLAINTIFF AS HER SHARE OF DEFENDANT'S BUSINESS.
3) PARAGRAPH 4 OF THE ORDER WHICH REQUIRED DEFENDANT TO PURCHASE PLAINTIFF'S INTEREST IN THE ROMANIAN REAL ESTATE AND WHICH REQUIRED DEFENDANT TO PROVIDE AN UPDATED CASE INFORMATION STATEMENT.
4) PARAGRAPH 8 OF THE ORDER WHICH REQUIRED DEFENDANT TO REIMBURSE PLAINTIFF THE SUM OF $4,000 REPRESENTING ONE-HALF OF THE TOTAL COST PAID BY THE PARTIES TO ATTEND THE OVERCOMING BARRIERS PROGRAM IN JULY 2010.
5) PARAGRAPH 9 OF THE ORDER WHICH REQUIRED DEFENDANT TO PAY PLAINTIFF THE SUM OF $7,075 IN COUNSEL FEES AWARDED TO HER IN THE OCTOBER 23, 2009 COURT ORDER DESPITE THE FACT THAT THERE WAS NO STATEMENT REGARDING THE BASIS FOR AWARDING THE SAME AND CONTRARY TO THE SUPPLEMENTAL JUDGMENT OF DIVORCE WHICH WAIVED ALL OF THE PARTIES' CLAIMS FOR LEGAL FEES.
6) PARAGRAPH 13 OF THE ORDER WHICH DIRECTS DEFENDANT TO NOTIFY PLAINTIFF WITHIN MINUTES OF MEDICAL EMERGENCIES INVOLVING [A.] AND THAT DEFENDANT REFRAIN FROM MAKING NEGATIVE COMMENTS TO [A.] REGARDING PLAINTIFF WITHOUT ANY FACTUAL BASIS FOR THE SAME.
7) THE COURT IMPROPERLY DETERMINED THAT PLAINTIFF IS ENTITLED TO RECEIVE ONE-HALF THE VALUE OF THE ROMANIAN REAL ESTATE AS OF APRIL 14, 2009 BECAUSE OF DEFENDANT'S FAILURE TO LIST THE PROPERTY FOR SALE, WHICH WAS FACTUALLY INCORRECT AND IS CONTRARY TO THE JUNE 1, 2010 JUDGMENT OF DIVORCE.
We first address the effect of the bankruptcy proceeding on the issue raised by defendant concerning plaintiff's interest in the building in Romania. Under federal law, when a debtor files a bankruptcy petition, an estate is created and the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C.A. § 541(a)(1). Thus, plaintiff's equitable interest in the building in Romania was part of the bankruptcy estate. See Reid v. Reid, 310 N.J. Super. 12, 20 (App. Div.), certif. denied, 154 N.J. 608 (1998); Colucci v. Colucci, 251 N.J. Super. 73, 78 (Ch. Div. 1991). Generally, "[t]he trustee, after notice and a hearing, may . . . sell . . . property of the estate . . . ." 11 U.S.C.S. § 363(b)(1). That is precisely what happened in this case. The sale appears to render moot defendant's issue concerning plaintiff's interest.
In her supplemental brief, plaintiff argues that the bankruptcy trustee sold her equitable interest in the building in Romania for considerably less than its actual value. Plaintiff has not argued that she was denied a fair opportunity in the bankruptcy proceeding to contest the sale of her interest or challenge the building's value, however. Nor has she attempted to demonstrate how the outcome of the bankruptcy proceeding would have differed had her interest been sold for a greater sum. Under those circumstances, we deem the narrow issue raised by defendant on this appeal -- that the trial judge erred by requiring defendant to purchase plaintiff's interest in the Romanian real estate -- moot.
After considering defendant's remaining arguments in light of the record and applicable law, we affirm, substantially for the reasons explained by the trial court in the written statements supporting the January 28 and March 18, 2011 orders. In summary, we deem the issue concerning defendant buying out plaintiff's interest in the Romanian real estate to be moot. We affirm in all other respects.