June 24, 2013
DOLLIE M. MUSA, Plaintiff-Respondent,
PAUL O. MUSA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1068-04.
C.N. Njoku, LLC, attorneys for appellant (Chinemerem N. Njoku, on the brief).
Respondent has not filed a brief.
Before Judges Fasciale and Maven.
In this uncontested matter, defendant Paul Musa appeals from an order dated August 3, 2012, denying his motion to vacate an April 20, 2012 order that obligated him to satisfy previously ordered equitable distribution, granting plaintiff Dollie Musa possession of the marital home, and awarding plaintiff $875 in counsel fees. We affirm in part and reverse in part.
The relevant facts follow. The parties were married in 1973 and divorced in 2004. They have two children, a son who at the time of this motion was emancipated and one daughter, who was in college. The motion judge presided over the divorce trial at which Dollie was represented by counsel and Paul was pro se. During the one-day trial, the judge heard testimony from the parties. According to the proceeding transcript, there was considerable discussion and dispute regarding, among other things, the equitable distribution of residential properties, including the marital home, Paul's retirement account, and allocation of marital debt. Neither party presented any expert testimony to support their respective requests for equitable distribution. Nevertheless, the Final Judgment of Divorce (FJD) ordered the following:
Africa Property – Dollie waived her interest in the property, which Paul owned before the marriage.
236 Walnut Street, East Orange (East Orange Property) — Dollie was granted sole title and possession of this property, which was deemed her premarital asset. However, Paul was deemed entitled to fifty percent of appreciation of property from Dollie calculated from the date of marriage until November 30, 2003, the date of the divorce complaint. Each party was to share on a pro-rata income basis in the cost of any appraisal for any property.
382 Wallingford Terrace, Union (Union Property) — This was the marital home. Paul was granted possession of the home until the minor daughter graduated college or professional school. Either party could buy out the other party's interest or the property would be sold and the net proceeds divided equally between the parties. Paul was granted a $1500 credit for each mortgage payment he made.
Refinance Proceeds for the Union Property — Paul testified that in 2003, he refinanced the Union property to pay off multiple marital debts. Although some credit account statements were attached to the HUD-1 settlement sheet and presented to the court, the judge did not make a finding whether these were marital debts. Rather, she ordered that Dollie would receive a credit in the amount of $76, 000 as her share of the proceeds from the second mortgage of the Union property unless Paul submitted proof, within sixty days of the trial date to Dollie's counsel, that the $76, 000 was used to liquidate marital debts acquired during the term of the parties' physical cohabitation.
243 Nesbitt Terrace, Irvington — This jointly-owned property was in the process of being sold at the time of the trial. Paul was ordered to have his real estate attorney provide a complete copy of the closing documents to Dollie's counsel. Net proceeds were to be divided equally or held in escrow if the parties could not agree.
Paul's Pension — Paul's Michigan State Pension was to be shared equally between the parties. The Qualified Domestic Relations Order (QDRO) was to cover the date of marriage, July 26, 1973, until November 19, 2003, the date of the divorce complaint.
Alimony and Child Support – These were waived by Dollie on the record but not referenced in the FJD.
Both parties have filed multiple post-judgment motions seeking enforcement on various provisions of the FJD:
April 13, 2007 Motion Hearing – On Paul's motion seeking enforcement of his interest in Dollie's East Orange property following its sale in 2006, Paul testified that in lieu of receiving the monetary payment he was due, he wanted Dollie's name removed from the deed on the Union property. Dollie objected claiming that she cooperated with two post-FJD refinances of the Union property in exchange for their "private understanding" that he would waive his interest in her East Orange property. The judge rejected Dollie's objection because their "agreement" was contrary to the FJD, not in writing or approved by the court. Dollie further argued that she wanted a portion of the latest two refinances, but the judge declined to consider her request. The judge denied Paul's request to have Dollie's name removed from the Union property.
On the record, the court ordered that Paul was to receive a credit for his share of the appreciation on the East Orange property. This credit was to be offset by any monies Paul owed Dollie upon the sale of the Union property, the net equity of which was to be equally divided.
March 22, 2011 Motion — On Paul's enforcement motion, the judge ordered any monies Dollie was entitled to receive from Paul's Michigan State pension was to be held in escrow pending further order of the court. The monies Paul was entitled to from the East Orange property was to be deducted/credited from his pension monies being held in escrow. Lastly, Dollie was ordered to provide Paul with all closing documents regarding the sale of the East Orange property within fourteen days of the order. The judge denied Paul's request for counsel fees, interest on monies due to him, and a levy on Dollie's bank account.
August 9, 2011 Order - On Dollie's motion seeking enforcement of prior orders, the court heard oral argument from the parties' counsel. The order reflected a finding that Paul "wrongfully converted a portion of the refinance proceeds to his own personal use, " thereby "constituting unjust enrichment." Paul was ordered to return "said refinance proceeds" by October 14, 2011 or a judgment would be entered in the amount of the refinance proceeds. All pension payments were suspended pending further order of the court to permit the court to address the issue of the refinance proceeds and pension payments received by Paul. Lastly, the judge directed an appraisal of the East Orange property to determine the fifty percent appreciation of the property.
April 20, 2012 Motion - On motion by Paul and cross-motion by Dollie, the judge heard oral argument from the parties' counsel. Paul's motion sought to vacate the August 9, 2011 order, and an order releasing his Michigan State pension payments that had been frozen because the QDRO had still not been completed to ensure Dollie's payments upon Paul's collection of his payments. Dollie's motion sought to enforce monies she was due from various refinancings of the Union property. The court entered judgment against Paul and in favor of Dollie in the amount of $89, 919.14, which represented the $76, 000 owed to Dollie as ordered in the FJD, plus $22, 750, which represented "the withdrawal . . . by defendant from the value of the parties' marital residence, " less $8, 830.86, which was his half of the $17, 278.17 paid to Dollie following the sale of the East Orange property, according to the HUD-1 settlement sheet. Paul was ordered to pay over his pension income to Dollie until the judgment was satisfied. Lastly, the parties were ordered to prepare the QDRO and equally share the accountant's costs.
August 2012 Motion – Paul filed a motion to vacate the April 20, 2012 order, and Dollie's cross-motion for possession of the marital home. At oral argument, Paul contested the basis for the court's order requiring his payment to Dollie of $22, 750. Additionally, he insisted, as he did at the time of the divorce, that he refinanced the Union property to pay $76, 000 in marital debt. Yet he conceded that he did not provide the proofs timely as required by the FJD. The judge denied Paul's motion to vacate the April order.
On the cross-motion, based on plaintiff's counsel's argument that Paul lives in Nigeria and the daughter was no longer in school, the judge granted Dollie possession of the Union house and counsel fees, among other things. This appeal followed.
Paul raises the three following contentions:
I. THE TRIAL COURT ERRED IN ORDERING [PAUL] TO PAY [DOLLIE] THE SUM OF $89, 919 BECAUSE [PAUL] DID NOT SHOW ANY PROOF, WITHIN [SIXTY] DAYS OF THE [FJD], THAT THE AMOUNT WAS USED IN PAYING OFF THE MARITAL DEBTS INCURRED BY BOTH PARTIES AT THE TIME OF THEIR MARRIAGE AND THAT [PAUL] WRONGFULLY CONVERTED A PORTION OF THE REFINANCE PROCEED[S].
II. THE TRIAL JUDGE ERRED IN ORDERING [PAUL] TO GIVE UP POSSESSION OF HIS HOME TO [DOLLIE] IN CLEAR VIOLATION OF THE [FJD] ENTERED BY THE SAME JUDGE.
III. THE TRIAL COURT'S ORDER IS NOT SUPPORTED BY THE EVIDENCE ON RECORD, THEREFORE, [PAUL] REQUESTS THAT THIS APPELLATE COURT . . . MAKE ITS OWN FINDINGS AND CONCLUSIONS.
We have carefully reviewed the record and, in light of applicable law, we agree with Paul on Point II only that the record is unclear as to the basis upon which the trial judge granted Dollie possession of the Union property.
"The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determination[s] and the judge's feel of the case based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006) (citing Cesare, supra, 154 N.J. at 394, 411-13), certif. denied, 190 N.J. 257 (2007) (internal quotation marks omitted); see N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). The trial court's "'feel of the case' . . . can never be realized by a review of the cold record." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "We do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484. We may only "exercise [our] original fact[-]finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Ibid.
We begin by recognizing that the same judge has presided over the parties' divorce trial and every post-judgment motion, except one motion in 2007. Based on her particularized knowledge of the parties and the facts attendant to these issues, we defer to the trial court judge who has a greater feel of the case than we can garner from a reading of the record. E.P., supra, 196 N.J. at 104. In light of that, we reject Paul's request for us to exercise original jurisdiction to resolve the issues raised in this appeal. See R. 2:10-5.
We turn now to Paul's claim that the court erred in calculating the amount of the money judgment. Paul first argues that he should be relieved from paying Dollie $76, 000 because he provided the required documentation to support his claim that he used the proceeds from the refinancing to pay off marital debt. The record evidence supports the judge's order. Particularly, the FJD clearly states that Dollie would be entitled to a credit of $76, 000 unless Paul presented proof that he spent the refinance monies on the satisfaction of marital debts within sixty days of the FJD. Also, during the August 2012 motion hearing Paul's counsel conceded several times that Paul did not submit the information ordered in 2004, but that he had only done so during the course of that motion. The protracted post-judgment litigation between the parties is partly created by Paul's failure to resolve this particular provision of the FJD in a timely manner. As a result, the judge determined that his providing the materials in 2012, eight years after the FJD, was just too late.
Next, he argued that the court did not give an explanation for the $22, 750 payment to Dollie. The court order stated that $22, 750 represents "the withdrawal . . . by defendant from the value of the party's marital residence;" however, neither the transcript of the April 20 proceeding nor the court order explained the reasons for the amount. We agree that the record does not provide support for that ruling.
While it is possible that the certifications and exhibits submitted with the motion provided sufficient information to the judge from which she made this determination, these reasons must be clearly articulated either on the record or in writing. R. 1:7-4(a). Furthermore, "[m]eaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J.Super. 441, 443 (App. Div. 1990). "The absence of adequate findings . . . necessitates a reversal." Heinl v. Heinl, 287 N.J.Super. 337, 347 (App. Div. 1996).
Next, we address the matter of the possession of the Union property. In her cross-motion heard in August 2012, Dollie requested possession of the home based on her belief that Paul resided in Nigeria and Paul's alleged misrepresentation of his intent to live in the property. Paul contends here that the judge unlawfully modified the equitable distribution provision of the FJD by granting possession of the former marital home to Dollie based on her unsubstantiated claim that he lived in Nigeria and no longer occupied the home.
The FJD is clear that Paul was granted exclusive possession of the home until such time as their daughter completed college or professional school. Thereafter, the parties were to either buy out one or the other's interest or sell the property and equally divide the net proceeds. The dispute over the possession of the marital home is not new. Dollie attempted to raise the issue of Paul's residency during prior motion hearings, having stated that their daughter no longer lived in the home with Paul and that the child was no longer in school.
Neither the transcript nor order from the August 2012 hearing provide sufficiently clear reasons why the judge granted possession of the home to Dollie. While the judge stated that she ordered Paul out of the house in the April 20 order, our reading of the order does not support that finding. The order provides that "[i]f [Paul] no longer intends to reside in the marital home, then [Dollie] may have possession of same upon three months['] notice." We cannot discern from this record that there was sufficient evidence of Paul's intent to not reside in the home, or that he was ordered out by August 9, 2012.
Accordingly, we reverse without prejudice that portion of the August 2012 order denying Paul's motion to vacate the April 2012 order, which entered judgment in the amount of $89, 919.14. Of that order, we affirm the judgment in the amount of $76, 000 in Dollie's favor and the credit of $8, 830.86. We remand for the judge to issue a thorough statement of reasons regarding her award of $22, 750 to Dollie.
We reverse the portion of the August 9, 2012 order granting Dollie possession of the Union property. On remand, the trial court must give further consideration of Dollie's request for possession of the house and the previously ordered equitable distribution of the property. In particular, the court should ascertain the status of the daughter in school and her residence, and determine therefrom if the parties must comply with the equitable distribution of the property pursuant to the FJD namely to either buy out the other's interest in the residence or sell the property and equally divide the net proceeds subject to credits and offsets as ordered in prior court orders As to the request for possession the court must ascertain Paul's intent to occupy the Union property
To comply with these requirements on remand the court may order discovery call for the submissions of briefs or schedule a hearing for the taking of testimony or evidence in order to develop a record sufficient to resolve these issues
Affirmed in part reversed and remanded in part We do not retain jurisdiction