November 20, 2013
KIM A. PILLAR, Plaintiff-Respondent,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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.
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 protected . . . in the MSA. The application to compel immediate payment must be denied.
Property settlement agreements negotiated by spouses incidental to divorce, are generally enforced and enforceable. They advance society's interest in enabling litigants to formulate financial solutions that are attributed to their needs and responsibilities. See Fawzy v. Fawzy, 199 N.J. 456 (2009). As a general rule, courts enforce such contracts, and do not alter the arrangements the parties have made for themselves. See Barr v. Barr, 418 N.J.Super. 18, 32 (App. Div. 2011).
Against this backdrop, the Family Part judge's ruling was correct that defendant did not establish grounds to modify the agreement he reached with plaintiff. Defendant's inability to do more to collect on the unpaid balance than to either foreclose on the mortgage or abide a sale was a limitation included in the complete package of rights and responsibilities set forth in the MSA. That provision does not warrant a court writing a different agreement for defendant. Although defendant loses the immediate availability of the funds, the unpaid balance accrues interest and is safely secured by the equity in the home. This is the bargain he reached with plaintiff, and no reason has been proffered as to why it should be undone.
Secondly, defendant contends the court erred in fixing the stock distribution date at November 18, 2011. The judge also directed that plaintiff undertake certain steps collateral to that distribution related to potential tax consequences, including the retention of a third party to make the calculations. Defendant does not appeal the latter aspect of the order.
The parties dispute the number and class of stock which plaintiff agreed to transfer pursuant to the MSA. That issue was not adequately argued or briefed before the Family Part judge, who as a result only rendered a decision with regard to the transfer date, and the potential tax consequences. Since the issue was not properly raised before the judge who decided the motion, we will not address it by way of appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).