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Bautista v. Bautista

Superior Court of New Jersey, Appellate Division

October 30, 2013

CENEIDA BAUTISTA, n/k/a CENEIDA A. JIMENEZ, Plaintiff-Appellant,
v.
SILVESTRE BAUTISTA, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 16, 2013.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-596-06.

Grissele Camacho, attorney for appellant.

Respondent has not filed a brief.

Before Judges Fisher and Koblitz.s

PER CURIAM

Plaintiff Ceneida A. Jimenez appeals from the September 14, 2012 post-divorce order, issued without a plenary hearing, requiring her to vacate the marital home by the end of 2012 and awarding credits to defendant Silvestre Bautista for mortgage payments. We reverse and remand for reconsideration of the economic consequences to the parties after a plenary hearing.

The parties were married in December 1983 and divorced twenty-three years later. Their amended final judgment of divorce (JOD) reflects their agreement on all issues. The portions of the agreement pertinent to this dispute follows. Plaintiff received the marital home in West Orange, which was mortgaged in defendant's name only and had $183, 000 in equity at that time. Plaintiff agreed to remove defendant's name from the mortgage "on or before July 1, 2009." She was required to forward to him each month's mortgage payment by the fifth of the month.

Plaintiff also received $200, 000 in equitable distribution and limited alimony of $35, 000 annually for five years beginning on May 1, 2007. Both parties agreed that the division of the properties they owned in the Dominican Republic was subject to the jurisdiction of the courts in that country.

On October 1, 2010, an enforcement order was entered providing an additional sixty days for plaintiff to refinance and remove defendant's name from the mortgage. If she did not do so, the property was to be listed for sale no later than December 1, 2010. Defendant was directed to pay the mortgage and subtract those payments from his alimony.

Almost two years later, on September 14, 2012, the order under appeal was entered, which directed plaintiff to vacate the home by December 31, 2012 if she was unable to sell the house by that date. Defendant was ordered to continue to pay the mortgage, with any payments made after the expiration of his alimony obligation to be reimbursed to him from the sale of the home.

Plaintiff represented that after the October 2010 order the home had been under contract for a direct sale with no brokers involved, but that the sale had fallen through in June 2011 because the buyers' financial situation had changed. She stated that she had lowered the price, but was unable to obtain a statement indicating the balance of the mortgage from defendant and therefore did not know how to price the home. She also certified that defendant had frustrated her ability to sell her interest in their property in the Dominican Republic, which limited her financial options.

Defendant finally provided the mortgage statement at oral argument for this motion on September 14, 2012, and, with plaintiff's consent, the judge ordered the price reduced to no more than $299, 900. Plaintiff agreed to pay the mortgage, but wished to remain in the home pending sale. The judge ordered her to move so the home would remain vacant while on the market. The motion judge reasoned that perhaps the house would sell faster without plaintiff ...


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