NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 12, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-44-10.
Luretha M. Stribling argued the cause for appellant.
Elissa Greenspoon argued the cause for respondent (Greenspoon & Greenspoon, attorneys; Ms. Greenspoon, on the brief).
Before Judges Messano and Lihotz.
Defendant Ernest L. Goethe appeals from a January 23, 2012 Chancery Division order denying his request to vacate a February 8, 2011 consent order settling the matter in dispute with his step-mother, plaintiff Ethel Mae Goethe. The order reiterated defendant's obligation under the consent settlement to "fully cooperate with the sale of [a] Farley Avenue, Newark" property, included provisions regarding the division of the proceeds of sale, and awarded plaintiff counsel fees and costs. On appeal, defendant argues the Chancery judge erred in denying his motion, as the circumstances required the consent order be vacated.Following our review of these arguments in light of the record and the applicable law, we affirm.
Plaintiff filed this action to recover her alleged interest in the Farley Avenue realty. The property is a multi-family home and was purchased by and titled to defendant, using plaintiff's funds as a down payment. Following closing, plaintiff resided in the first floor unit and made a monthly payment to defendant. Defendant did not dispute the $150, 000 down payment came from plaintiff; however, he maintained the money was a gift, making the home solely his property. After they had a falling out, defendant advised he would be selling the home and plaintiff must vacate the property.
Plaintiff filed her complaint seeking: (1) restitution comprising the $150, 000 down-payment; (2) "one-half of the proceeds of sale, over and above the purchase price of $260, 000"; (3) $51, 616.48 alleged to have been taken by defendant from plaintiff's bank account; (4) an accounting of rents defendant collected from the third-floor tenant; and (5) payment of counsel fees and court costs. Plaintiff also filed an order to show cause requesting an order enjoining defendant from removing her from the home, harassing her, and dissipating any monies received in the event of sale. After the initial filings, the parties attended mediation in an effort to resolve their disputes. Ultimately, the parties resolved the matter and entered a consent order on February 8, 2011, agreeing:
1.[D]efendant . . . shall immediately list for sale the subject property . . . .
2. When the property . . . is sold, after the mortgage and all closing costs are paid (including, but not limited to, realtor's commission and attorneys['] fees for the closing), the plaintiff and the defendant shall share the net proceeds of sale as follows:
A.[D]efendant . . . shall receive the first $10, 000.00, from the net proceeds of sale, provided that the net proceeds of sale are $70, 000.00 or greater.
B.[P]laintiff . . . shall receive the balance of the net proceeds of sale. The plaintiff shall pay, in full, her outstanding legal fee balance to Greenspoon & Greenspoon ...