December 24, 2013
BETH G. BALDINGER, Plaintiff-Appellant,
BRUCE E. BALDINGER, Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-669-04.
Beth G. Baldinger, appellant pro se.
Bruce E. Baldinger, respondent pro se.
Before Judges St. John and Leone.
Plaintiff Beth G. Baldinger and defendant Bruce E. Baldinger entered into a Supplemental and Amended Dual Final Judgment of Divorce (JOD). Plaintiff appeals from the denial of reconsideration of an order requiring her to comply with the JOD's personal property provision. We affirm.
The parties were before us in an earlier appeal, which in some respects is a mirror image of this appeal. In Baldinger v. Baldinger, Docket No. A-1733-09 (App. Div. July 7, 2011) (slip op. at 2-5), we recounted pertinent facts and procedural history:
The parties, both attorneys, resolved their acrimonious divorce on June 28, 2006, although their relationship remained conflicted. Pursuant to the JOD, defendant agreed to surrender all rights to the marital home. Plaintiff agreed to "execute a home equity loan or refinance the first mortgage adding Seventy Thousand Dollars ($70, 000.00) . . . for [defendant's] attorney's fees." In turn, defendant agreed to repay that sum to plaintiff in quarterly installments with interest commencing on November 1, 2006, with the last payment due on August 1, 2007. Defendant never complied with this financial obligation.
The JOD also provided that plaintiff would keep all personal property except for "the Tibetan chest, the Erte pin, the Japanese screen, books, some photos, one-half of the crystal and half of the artwork." If the parties could not agree how to divide the artwork, defendant was to prepare two lists of all of the artwork and plaintiff was to choose one of the lists. Plaintiff would then retain the artwork on that list, and the artwork on the other list would be given to defendant. Plaintiff in large measure never complied with this provision.
The JOD further provided that "[a] modification or waiver of any provision of this [JOD] shall be effective only if made in writing, and executed with the same formality as this [JOD]." The JOD did not make defendant's obligation to repay the $70, 000 loan contingent upon plaintiff's performance of her obligation to give defendant the specified personal property.
Each party's failure to comply with the JOD became the subject, in part, of a 2009 post-judgment cross-motion by plaintiff after defendant sought a change in custody. Plaintiff opposed the change in custody and alleged in her cross-motion that defendant owed her $70, 000, which should have been repaid in full by August 1, 2007. She sought an order holding him in violation of litigant's rights and ordering him to make payment in full by a date certain.
In his certification opposing this relief, defendant alleged that he sought return of the personal property he was entitled to receive, although he did not certify that he had provided plaintiff with two lists of the artwork. He averred that plaintiff had refused to provide the personal property to him and "maliciously joked with the children that she might give them to me one day when she tired of them." He further averred that when he questioned her about why she would want to keep his parents' photograph books, his matchbook collection, and all of their children's photographs, she "would laugh at [him] and say that [he] would never see [his] property." Because plaintiff delayed so long in returning the items, defendant certified that he "purchase[d] art and other items at great expense." It was not until plaintiff sold the marital home that she returned some, but not all, property to him, but some of the returned items had been damaged so severely that they no longer had any monetary value. He related that he told plaintiff that he considered her failure to return his valuable personal property as relieving him of his obligation to repay the $70, 000 loan. He pointed out that plaintiff had not sought to enforce her rights under the JOD for over three years.
On April 4, [2008, ] plaintiff emailed defendant to say that she was moving and his property was available for him to retrieve. In response, defendant demanded that plaintiff deliver his property to him and leave it in the left bay of his garage. He stated, "I have no intention of waiving your breach by taking anything from you." Plaintiff apparently complied with this demand, but the acrimony over the personal property continued in the parties' email correspondence.
Despite providing this correspondence to the judge, defendant never amended his notice of motion to seek any affirmative relief regarding plaintiff's alleged default. In plaintiff's reply certification on her cross-motion, she did not dispute any of defendant's claims except those related to three paintings by Gregorio Prestopino. As to these, she certified that they had been purchased for each of their three children and had been given to them at the time of purchase. Thus, she averred that none of these paintings was subject to equitable distribution.
The motions were heard by a Family Part judge on October 26, 2009. After listening to the arguments of counsel, the judge placed his decision on the record. He stated that he was not satisfied that there was any equitable defense or any defense based on estoppel to the debt due plaintiff. In short, he found no cognizable defense to the cross-motion and granted the relief sought by plaintiff. After entry of the December 4, 2009, order, defendant appealed only the paragraphs compelling repayment of the $70, 000 loan.
We affirmed the judge's determination that waiver, laches, and estoppel were not cognizable defenses to plaintiff's cross-motion to enforce defendant's loan repayment obligation under the JOD. Id. at 9-11. We agreed that defendant had established "plaintiff was in breach of her obligation to him" regarding the personal property, but ruled that "[t]he two obligations were independent and unrelated." Id. at 9. We rejected the defense of waiver because "the JOD specifically required all waivers to be in writing and signed with the same formality as the JOD." Id. at 9-10.
Following our affirmance, plaintiff moved for the turnover of the $70, 000 with interest. Defendant cross-moved for, among other things, an order requiring plaintiff to turn over personal property pursuant to the JOD. Defendant certified that plaintiff had not delivered the crystal, photos, Erte pin, Prestopino paintings, or any original artwork; had given back very few of his books; and returned the Japanese screen and Tibetan chest damaged. Plaintiff certified that she had delivered to him the items specified in JOD, plus the artwork, books, crystal, photographs, and the Tibetan chest, all undamaged, and that the Japanese screen was in no worse condition than when the couple had moved nine years earlier. Plaintiff argued that defendant's request for relief was barred by laches, equitable estoppel, and the entire controversy doctrine.
On December 28, 2011, the judge ordered the turnover of the $70, 000 with interest. The judge also ordered
that Plaintiff allow Defendant access to her home so that he can claim any of the personal property and marital property due him pursuant to the Supplemental and Amended Dual Final Judgment of Divorce and to compose the two lists prescribed under the Judgment of Divorce regarding the division of the artwork within fourteen (14) days of this Order. Thereafter, Plaintiff shall have ten (10) days to make available Defendant's personal property, marital property, and artwork for his retrieval.
Plaintiff filed a motion dated January 19, 2012, seeking reconsideration "only with regard to permitting the defendant to access the plaintiff's home." Plaintiff again argued that defendant's request for relief was barred by laches, equitable estoppel, and the entire controversy doctrine. In her certification, plaintiff alleged that on April 6, 2008, she delivered to defendant's residence "everything [defendant] was entitled to, in their original condition and undamaged, " except for the Japanese screen, which had been damaged before they moved from their prior home. She stated that she no longer had many items from the marital home, that she does not save all receipts for personal items, and that she would have difficulty disproving that items defendant might claim were marital property.
Defendant filed a cross-motion, again certifying that plaintiff had kept all of the oil paintings, valuable photographs, crystal, first edition books, and the Erte pin. Plaintiff's reply certification said many items of personal property had been given away.
On April 9, 2012, the judge denied plaintiff's motion for reconsideration, and granted defendant's motion for attorney's fees. On April 20, 2012, the judge set the amount of attorney's fees owed at $3, 818.12. On May 17, 2012, plaintiff filed a notice of appeal from the April 9 and April 20 orders.
Plaintiff first complains that the judge erred in his December 28, 2011 order by not considering the entirety of plaintiff's opposition to defendant's cross-motion for personal property. After defendant objected, the judge stated that because plaintiff's nineteen-page reply certification was nine pages longer than Rule 5:5-4(b)'s ten-page limit, "only the first ten (10) pages will be considered." Plaintiff's opposition to defendant's request for personal property was on pages fourteen to eighteen of the reply certification.
Plaintiff's notice of appeal, however, did not appeal the December 28, 2011 order. Under Rule 2:5-1(f)(3)(A), "'it is only the orders designated in the notice of appeal that are subject to the appeal process and review.'" Petersen v. Meggitt, 407 N.J.Super. 63, 68 n.2 (App. Div. 2009) (citation omitted). Where, as here, a notice of appeal designates only the order denying reconsideration and not the order of which reconsideration was sought, that original order "is not before us for review, " and we address only the order denying reconsideration. Fusco v. Bd. of Educ., 349 N.J.Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002).
We may nonetheless exercise our discretion to review the original order if the appellant's Case Information Statement (CIS) "makes clear that this is a matter in which the motion for reconsideration implicates the substantive issues underlying the order for judgment, " Tara Enterprises., Inc. v. Daribar Mgmt. Corp., 369 N.J.Super. 45, 60 (App. Div. 2004), or if "'the basis for the motion judge's ruling on the [original] and reconsideration motions was the same, '" Potomac Aviation, LLC v. Port Auth., 413 N.J.Super. 212, 222 (App. Div. 2010) (quoting Fusco, supra, 349 N.J.Super. at 461). Here, however, plaintiff did not mention or challenge the judge's enforcement of Rule 5:5-4(b) in her CIS or her reconsideration motion. Accordingly, plaintiff has not properly raised that issue on appeal.
Additionally, post-judgment matrimonial motions are "summary in nature, " and are subject to page limitations under Rule 5:5-4(b) to help "resolve issues in a summary fashion." Welch v. Welch, 401 N.J.Super. 438, 446 (Ch. Div. 2008); see generally In re Tenure Hearing of Cowan, 224 N.J.Super. 737, 752 (App. Div. 1988). Plaintiff did not ask the judge to relax the page limit "for good cause shown" before filing her overlength certification. R. 5:5-4(b). The judge was not required to relax the page limit sua sponte under Rule 1:1-2, which "'should be sparingly resorted to, particularly when a reasonable interpretation of the complex of directly applicable rules meets the problem at hand.'" Romagnola v. Gillespie, Inc., 194 N.J. 596, 604 (2008) (quoting Pressler, Current N.J. Court Rules, comment 2 to R. 1:1-2 (2007)).
Plaintiff next challenges the April 9, 2012 denial of her motion for reconsideration of the December 28, 2011 order. "Motions for reconsideration are granted only under very narrow circumstances." Fusco, supra, 349 N.J.Super. At 462.
"Reconsideration should be used only for those cases which fall into that narrow corridor in which either (l) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence."
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J.Super. 392, 401 (Ch. Div. 1990)).]
"'[A] litigant must initially demonstrate that the Court acted in an arbitrary, capricious, or unreasonable manner, before the Court should engage in the actual reconsideration process.'" Palombi v. Palombi, 414 N.J.Super. 274, 289 (App. Div. 2010) (quoting D'Atria, supra, 242 N.J.Super. at 401). We review the judge's denial of reconsideration for abuse of discretion. Cummings v. Bahr, 295 N.J.Super. 374, 389 (App. Div. 1996). We must hew to that standard of review.
The judge denied plaintiff's reconsideration motion on both procedural and substantive grounds. First, the judge ruled that it "raise[d] new arguments that were not raised in her original motion" and attached "new documentation that was clearly available to her at the time of [her] original filing." On appeal, plaintiff asserts that her reconsideration motion made the same factual and legal arguments as her reply certification. In fact, plaintiff's nine-page motion for reconsideration, and eight-page letter brief, not only repeated but also elaborated on the arguments made on pages fourteen through eighteen of her reply certification. Moreover, those pages were not "overlooked." R. 4:49-2. Rather, as previously discussed, the judge ruled those pages could not be considered because they were in the overlength part of her reply certification. R. 5:5-4(b). Because plaintiff did not challenge that ruling, she cannot fault the judge from treating the arguments in her reconsideration certification as new.
Moreover, plaintiff does not claim that any of the thirty pages of documents attached to her motion for reconsideration were attached to her reply certification. All but two of the pages were emails, and pleadings in front of other judges, that had not been before the judge when he ruled on the original motion. All of the documents were available to plaintiff when she filed her reply certification, and thus "were not an appropriate basis for reconsideration." Palombi, supra, 414 N.J.Super. at 289. Plaintiff "cannot now seek to bring [these] document[s] in under the guise of reconsideration after defendant prevailed on" the original motion. Fusco, supra, 349 N.J.Super. at 463. In any event, the judge rejected the reconsideration motion on substantive grounds also.
Plaintiff next argues that defendant's cross-motion was barred by the equitable doctrines of laches, estoppel, and unclean hands. However, plaintiff did not appeal from the December 28, 2011 order granting the cross-motion, but only from the denial of reconsideration. Even assuming we exercised our discretion to review that original order under Potomac Aviation or Tara Enterprises, we find no abuse of discretion in the rulings on the cross-motion or the motion for reconsideration.
In denying reconsideration, the judge addressed the merits in part. The judge set forth at length plaintiff's arguments in her reconsideration motion relating to defendant's claim for personal property. The judge noted that plaintiff's laches, estoppel, and unclean hands arguments had not been properly raised before, but then ruled:
The Court is also not persuaded by Plaintiff's argument that Defendant has run out of time to enforce the provision of the [JOD] entitling him to receive certain items of personal property and artwork. Although Defendant waited a number of years to file an application for enforcement of same, a ruling that Defendant's time of enforcement had lapsed would effectively nullify every provision of the [JOD] that had not yet been brought before the Court on an action for enforcement within a certain period of time.
We had similarly rejected defendant's laches defense, when plaintiff had waited years to enforce repayment of the $70, 000. Baldinger, supra, slip op. at 10. Plaintiff, having successfully argued that laches did not bar her attempt to enforce the JOD, is in a poor position to argue that laches bars defendant's attempt to enforce the personal property provision of the JOD. Indeed, we noted in our prior opinion that "the time for performance of the obligation to divide the personal property was not stated in the JOD." Id. at 12-13.
The doctrine of "laches is 'invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party.'" Fox v. Millman, 210 N.J. 401, 418 (2012) (quoting Knorr v. Smeal, 178 N.J. 169, 180-81 (2003)). "Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned." Knorr, supra, 178 N.J. at 181. "The key factors to be considered in deciding whether to apply the doctrine are the length of the delay, the reasons for the delay, and the 'changing conditions of either or both parties during the delay.'" Ibid. (quoting Lavin v. Bd. of Educ., 90 N.J. 145, 152 (1982)). "'[W]hether laches should be applied depends upon the facts of the particular case and is a matter within the sound discretion of the trial court.'" Mancini v. Twp. of Teaneck, 179 N.J. 425, 436 (2004) (citation omitted).
The judge did not abuse his discretion in rejecting plaintiff's laches defense. Plaintiff argues that defendant failed to assert his right to the personal property within a reasonable time. To the contrary, defendant sought to arrange compliance with the JOD's personal property provision within days of the parties' signing of the JOD, and repeatedly thereafter in 2006, by sending numerous memos to plaintiff. By 2008, defendant asserted her withholding of the property breached the JOD.
Plaintiff notes that on April 4, 2008, she sent an e-mail to defendant saying that she was moving and that he could retrieve his personal property. Defendant responded by demanding instead that she deliver his property to his garage.More importantly, defendant stated, "I have no intention of waiving your breach by taking anything from you." Defendant continued to assert that she had breached the JOD even after her delivery of some property to his garage. In opposing her 2009 cross-motion, defendant maintained that she had violated his rights under the personal property provision. Thus, plaintiff could not "in good faith believ[e] that the right had been abandoned" by defendant. Knorr, supra, 178 N.J. at 181.
We noted in our prior opinion that defendant "stated in open court that he did not want the artwork anymore." Baldinger, supra, slip op. at 12. At an October 26, 2009 hearing, defendant based his argument against plaintiff's demand for repayment of the $70, 000 on plaintiff's refusal to turn over the personal property, including the artwork. He argued plaintiff's refusal forced him to replace the personal property
[a]t great cost. And now, when she moves out of Mendham into Mountain Lakes, she says "I don't need this stuff anymore, take it." And I said, "I don't want it anymore. I've already furnished my house."
THE COURT: Well, how about these multi-thousand dollar paintings? The artwork?
MR. BALDINGER: Your Honor, I don't want them anymore. I've bought art. My new wife has art. We have no room for it. I have moved on with my life. And I've told plaintiff all along "I'm not going to pay the 70, 000 if you don't give the stuff to me."
THE COURT: So . . . your position is there's an offset.
MR. BALDINGER: Well, there's an offset, there's a prior breach of the contract and there's equitable estoppel, Your Honor.
Thus, defendant did not abandon his claim that plaintiff had breached the personal property provision, but chose as his remedy an offset or defense to her claim for repayment of the $70, 000. In plaintiff's appeal, we rejected that defense because the two obligations were independent. Id. at 9. However, we did not rule that defendant's choice was an inexcusable or unexplained reason for delay, or a waiver. To the contrary, we rejected a claim of waiver because the JOD requires all waivers to be in writing and signed with the same formality as the JOD. Id. at 9-10.
Plaintiff stresses that defendant did not file a motion to recover his personal property until after our July 7, 2011 decision. Our decision similarly noted the absence of such a motion. Id. at 12. We also noted, however, that defendant had established "plaintiff was in breach of her obligation to him" regarding the personal property. Id. at 9. Defendant could properly react to our decision rejecting his use of plaintiff's breach as a defense by seeking to enforce her independent obligation. Thus, defendant's failure to file a motion to recover the property until July 7, 2011 does not constitute laches under these circumstances.
Plaintiff argues that she was prejudiced because she certified that she discarded or gave away many items from the marital home, but she simultaneously certified that she gave defendant "everything he was entitled to." If plaintiff is claiming she discarded or gave away items defendant was entitled to receive, she did so at her peril. As set forth above, defendant consistently maintained that plaintiff was violating his rights by not returning personal property to which he was entitled under the JOD. The judge did not abuse his discretion by allowing defendant access to plaintiff's new home to see if any personal property to which he is entitled remains in her possession.
Plaintiff suggests that she is also prejudiced because she did not keep records of what she delivered to plaintiff, she did not keep receipts for items she purchased, and she would have difficulty proving that items defendant might claim were not marital property. We hope that the parties will rise above the acrimony and employ common sense to carry out their agreement, using their legal training to resolve any disputes themselves. In the event a party files a motion, we have every confidence that the trial court will be able to resolve any factual disputes after hearing testimony.
For the same reasons, we do not believe it was an abuse of discretion to reject plaintiff's defense of equitable estoppel. "Equitable estoppel 'is conduct, either express or implied, which reasonably misleads another to his prejudice so that a repudiation of such conduct would be unjust in the eyes of the law.'" McDade v. Siazon, 208 N.J. 463, 480 (2011) (citation omitted). Its elements are "a knowing and intentional misrepresentation by the party sought to be estopped under circumstances in which the misrepresentation would probably induce reliance, and reliance by the party seeking estoppel to his or her detriment." O'Malley v. Dep't of Energy, 109 N.J. 309, 317 (1987). "[E]quitable estoppel is applied 'only in very compelling circumstances . . . .'" Segal v. Lynch, 211 N.J. 230, 270 (2012) (citations omitted). "The application of the equitable doctrine of estoppel has been left to the discretion of the trial courts." Patel v. Navitlal, 265 N.J.Super. 402, 411 (Ch. Div. 1992).
Plaintiff argues that she need not show reliance under the doctrine of quasi-estoppel. "'Quasi-estoppel' describes a situation in which an individual is not permitted to blow both hot and cold, taking a position inconsistent with prior conduct, if this would injure another, regardless of whether that person has actually relied thereon." Heuer v. Heuer, 152 N.J. 226, 237 (1998) (citations and quotation marks omitted). For good or ill, defendant has always blown "hot" on the issue of plaintiff's compliance with the personal property provision.
His position that he would like his property back if he cannot get an offset or defense is not so inconsistent as to justify the extraordinary step of invoking equitable estoppel to bar enforcement of the JOD. "'[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.'" Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (citations omitted).
Similarly, it was not an abuse of discretion to reject plaintiff's defense of unclean hands. The essence of the doctrine of unclean hands, "'which is discretionary on the part of the court, is that a suitor in equity must come into court with clean hands and he must keep them clean after his entry and throughout the proceedings.'" Marino v. Marino, 200 N.J. 315, 345 (2009) (citations omitted). Here, both parties failed to comply with their obligations under the JOD. Although defendant filed his enforcement motion after plaintiff filed hers, "[d]elay in itself . . . does not establish 'unclean hands' for purposes of our jurisprudence." Borough of Princeton v. Bd. of Chosen Freeholders of Mercer Cnty., 169 N.J. 135, 158 (2001).
Lastly, plaintiff claims that defendant's motion violated the entire controversy doctrine. This doctrine requires mandatory joinder of all related claims in a single action. Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207 N.J. 428, 442-44 (2011); see Oliver v Ambrose 152 N.J. 383 393-94 (1998); R 4:30A The claims here for enforcement of the JOD's provisions for debt repayment and personal property were in fact brought in the same Family Part action Plaintiff apparently is asserting that they also had to be brought in the same motion cycle She cites no support for that unrealistic proposition In any event the entire controversy doctrine "remains an equitable doctrine whose application is left to judicial discretion based on the factual circumstances of individual cases" Brennan v Orban 145 N.J. 282 291 (1996) We find no abuse of discretion Affirmed.