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Pillar v. Pillar

Superior Court of New Jersey, Appellate Division

November 20, 2013

KIM A. PILLAR, Plaintiff-Respondent,
v.
EDWARD C. PILLAR, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 1, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-1470-08C.

Goldstein and Bachman, P.A., attorneys for appellant (Howard A. Bachman, of counsel; David R. Cardamone, on the brief).

Heilbrunn Pape, attorneys for respondent (Steven Kropf, of counsel and on the brief).

Before Judges Alvarez and Carroll.

PER CURIAM

Plaintiff Kim A. Pillar and defendant Edward C. Pillar entered into a matrimonial settlement agreement (MSA) on March 17, 2009, which was incorporated into their divorce judgment, granted that same day. The parties have four children, two of whom are in college and two of whom reside with plaintiff at the former marital residence. Pursuant to the MSA, plaintiff secured her obligation to pay defendant $181, 000 in equitable distribution by recording a second mortgage and note. Additionally, plaintiff agreed to transfer to defendant fifty percent of certain shares of stock which she received as employee benefits.

Defendant filed a motion to enforce litigant's rights as to the unpaid balance of equitable distribution payments, and the stock transfer. Plaintiff does not dispute that she is in arrears. Defendant now appeals the March 12, 2012 order issued as a result of his application. For the reasons that follow, we affirm.

I.

First, defendant challenges the court's interpretation of the MSA, the mortgage and note, and the methods he has available to collect on equitable distribution arrears. The judge ruled that defendant may either foreclose on the mortgage, which accrues interest on any unpaid balance at four percent, or abide the sale of the home, which is currently on the market, at which time he would be paid in full, principal and interest. Defendant may not, however, obtain and execute a judgment for the unpaid balance in the ordinary course.

The MSA provides that if plaintiff fails to cure any payment default after notice thereof, defendant would "be entitled to exercise his rights pursuant to the mortgage." On the standard mortgage and note documents, however, plaintiff deleted all the language referring to any obligation to "immediately pay the full amount of all unpaid principal, interest, and other amounts due." By doing so, plaintiff limited defendant's options, as the mortgagee, in the event of her default, to foreclosure or the sale of the former marital residence. Defendant accepted these modified documents securing the obligation.

As a result, the Family Part judge concluded:

The procedure for handling the default is not contrary to equitable considerations and was agreed to by mutual consent; both parties having been represented by very able counsel at the time the MSA was prepared and executed. There is no reason to rewrite the MSA, as it appears that [d]efendant's interests are more than adequately ...

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