On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1017-09A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Haas.
In this post-judgment matrimonial matter, plaintiff Lanette Rozier appeals from the trial court's order denying her motion to enforce a provision in the parties' Matrimonial Settlement Agreement (MSA) that required defendant Terence Byrd to pay her $25,000 as an advance against her share of the net proceeds of the future sale of their former marital home. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
The long-term marriage between plaintiff and defendant was terminated by a judgment of divorce entered on November 19, 2009. They have four children, with one being unemancipated at the time of the divorce. Their final judgment of divorce incorporates the parties' thirty-six page MSA.
The MSA is a comprehensive agreement and it clearly sets forth the parties' mutual promises and obligations. Among other things, the MSA covered child custody and support, spousal support, health and life insurance, and equitable distribution.
Defendant's child and spousal support obligations were based upon his imputed income of $235,000 per year and plaintiff's annual imputed income of $40,000. Defendant was required to pay plaintiff $4,273 per month as "permanent base alimony"*fn1 and $1,560 per month in child support. Defendant's obligation to pay child and spousal support would not become effective until plaintiff vacated the former marital home.
The MSA has several provisions that relate to the home. According to paragraph 65, the parties owned the home as tenants by the entirety at the time of the divorce and had listed it for sale for $899,000. However, the parties agreed "to decrease this amount upon advice of the real estate broker, or on the basis of an appraisal." Once the property was sold, paragraph 65 provides that the net proceeds shall be distributed between the parties on a 50/50 basis, with various credits and adjustments set forth [in the MSA] to be paid from each party's share of the net proceeds. The net proceeds shall be defined as the gross sale price less the mortgage balance, real estate commissions, realty transfer fees, and the usual costs of closing, including legal fees.
Pursuant to paragraph 66, the parties' "educational debt" of approximately $125,000 was to "be satisfied in full using net proceeds from the sale of the marital home." This loan had to be "satisfied prior to distribution of the net proceeds from the sale to either party."
Plaintiff vacated the home on January 6, 2010, thus leaving it in defendant's sole possession. Paragraph 67 of the MSA states that defendant "shall be permitted to refinance the current mortgage with Provident Bank and obtain a mortgage solely in his name, thereby releasing [plaintiff] from her legal obligations and holding her harmless on the existing mortgage."
He was also "permitted to borrow up to $85,000.00 in equity through the refinance. From those equity funds," defendant was required to "fully satisfy the Princeton Parent Loan in the approximate amount of $60,000.00." Paragraph 67 goes on to provide that defendant shall utilize the remainder of these funds to provide [plaintiff,] at the time of the closing on the refinance of the marital home, with a $25,000.00 advance payment of her share of the net proceeds from the sale of the marital home, which shall be deducted from her equitable share of the net proceeds from the sale.
Defendant refinanced the mortgage in his own name and borrowed $85,000 in additional funds. He paid off the parent loan and he paid ...