NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2013.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2581-06H.
DeMarco and Lore, attorneys for appellant (Raymond P. DeMarco, on the brief).
Goldstein and Bachman, P.A., attorneys for respondent (Howard A. Bachman, of counsel; David R. Cardamone, on the brief).
Before Judges Fisher and Koblitz.
In this appeal of a post-judgment matrimonial order, plaintiff Mary Davidson (Mary) argues the motion judge erred in failing to conduct an evidentiary hearing to determine whether defendant Martin Davidson (Martin) failed to properly or expeditiously market a home, which had been equitably distributed, and the consequences of the alleged failure. We agree these issues could not be decided on the papers and remand for an evidentiary hearing.
The parties were married in 1995 and had two children. Upon the disintegration of their marriage, the parties agreed to arbitrate the issues disputed in their divorce action. Former Superior Court Judge Fred Kieser was selected as their arbitrator, and, after a two-day hearing, he rendered a thorough written decision disposing of all issues.
As presently relevant, the arbitrator found the parties owned two residences in the Borough of Middlesex that were subject to equitable distribution: one, the marital home, is on Benart Place (hereafter Benart), and the other, on Whitney Drive (Whitney), was originally owned by Martin and leased to relatives. When the marital relationship collapsed, Martin took up residence at Whitney. The parties stipulated the values of Benart and Whitney at $385, 000 and $295, 000, respectively.
In equitably distributing the properties, the arbitrator found Mary was entitled to retain Benart and Martin was to receive a $78, 000 credit for his interest. As for Whitney, the arbitrator found Mary entitled to be "credited with one-half of the stipulated value minus one-half of the outstanding principal of the mortgage as of 8/1/08, " i.e., $127, 500; additional adjustments reduced Mary's interest in Whitney to $103, 879.92.
The arbitrator also directed that, within forty-five days, Martin was to either refinance Whitney for an amount at least equal to the $103, 879.92 owed Mary or list the property for sale. If Martin took neither step, the arbitration award expressed Mary's right to apply to court for authorization to execute any necessary instruments to list, sell and convey Whitney.
A judgment of divorce, incorporating these terms, was entered on December 5, 2008.
Whitney soon became the subject of numerous trips to court because of Mary's assertions that Martin was not adequately maintaining the property or making good faith efforts to sell it in compliance with the arbitration award. On May 28, 2010, the motion judge denied without prejudice Mary's request for authorization to sell Whitney; the judge stated she was not convinced Martin had unreasonably refused to accept a bona fide offer, but the judge also ordered Martin to comply with the realtor's recommendations for ...