NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-352-10.
Einhorn, Harris, Ascher, Barbarito & Frost, attorneys for appellant (Bonnie C. Frost and Matheu D. Nunn, on the brief).
Femke DeRuyter, respondent pro se.
Before Judges Lihotz and Kennedy.
Defendant appeals from a post-judgment order of the Family Part granting, in part, plaintiff's motion to enforce litigant's rights arising from a judgment of divorce which incorporated the parties' Property Settlement Agreement (PSA). Defendant argues that the motion court "incorrectly re-wrote the parties' PSA to the sole benefit of plaintiff." We disagree and affirm.
The parties were married on August 29, 1999, and were divorced by judgment entered on October 22, 2010. The judgment incorporated a nineteen-page PSA the parties had earlier negotiated and approved. The PSA specifically addressed the use and disposition of the marital residence, which lies at the heart of the parties' dispute on appeal.
During their marriage, the parties purchased two adjoining condominium units on Spruce Street in Princeton, which they renovated into a single unit and used as the marital residence. The first unit was purchased in 2004 in the name of plaintiff alone and was encumbered by two mortgages and an equity line of credit at the time of the parties' divorce. The second unit was purchased in 2005 in the names of both parties and was encumbered by a mortgage, an equity line of credit and an Internal Revenue Service (IRS) lien at the time of their divorce.
The units, as noted, were owned under separate deeds and no lienholder was ever notified of the parties' renovation of the properties into a single unit. At the time of the judgment of divorce, no payments had been made to any of the lienholders for over seven months.
The PSA provided that defendant "shall occupy the marital residence" and shall be responsible to pay maintenance and operating expenses, including electric and gas, water, cable and lawn care. At the time of the judgment of divorce, the property was listed for sale with a realtor, and the PSA provided that during defendant's occupancy, the premises shall remain "on the market for sale" in plaintiff's discretion. The PSA also stated that rental payments made by a tenant who rented part of the premises shall be "made directly" to plaintiff until the property is "sold, lost, or until the mortgages are assumed by" defendant.
Further, the PSA stated:
7.10 For as long as the property remains listed for sale, [plaintiff] shall have the sole authority to determine what constitutes an acceptable offer for sale. [Defendant] shall have the right to match any offer that is acceptable to [plaintiff] in such a fashion that [plaintiff] would net the same amount that she would under the sale to the third party.
7.11 In the event that there are no acceptable offers for purchase by a third party [defendant] shall have the option to purchase the house at a price that covers all mortgages/liens against the property (including the mortgage to H. Katja DeRuyter), all associated real estate taxes/costs, and any and all transfer of mortgage costs, plus an additional $75, 000 payable to [plaintiff]. If [defendant] exercises this option, he must provide a non-refundable deposit of $40, 000 to [plaintiff]. If [defendant] is not able to assume the mortgages/liens, then the house will remain ...