RAUL AUGUSTIN JIMENEZ, LIRIO JIMENEZ, and LUIS JIMENEZ, Plaintiffs-Appellants,
RAUL ANIBAL JIMENEZ, Defendant-Respondent.
April 23, 2018
appeal from Superior Court of New Jersey, Law Division,
Middlesex County, Docket No. L-0025-12.
Schleck Kleiner argued the cause for appellants.
Nicholas R. Jimenez argued the cause for respondent.
Judges Sabatino, Ostrer and Rose.
appeal poses the legal question of whether N.J.S.A.
46:3-17.4, a provision enacted into law in 1988, precludes a
spouse's unsecured creditor from obtaining the forced
partition of real property the spouse and his non-debtor
spouse own together as tenants by the entirety. We hold the
statute prohibits such non-consensual partition. The statute
supersedes and nullifies earlier case law that had allowed
such a creditor's remedy in certain equitable
facts pertinent to our legal analysis are limited and
essentially undisputed. In October 2 006, defendant Raul
Anibal Jimenez and his wife Gwyn Jimenez obtained a tract
of real property in Mansfield, New Jersey. The tract, which
is said to be about thirty acres, is undeveloped and has not
been used as the owners' marital residence. It is
undisputed that defendant and his wife own the property as
tenants by the entirety.
December 2011, plaintiffs Luis Jimenez, Raul Augustin
Jimenez, and Lirio Jimenez filed a complaint in the Law Division
against defendant seeking repayment on a line of credit they
extended to him, as well as the repayment of additional funds
he allegedly owed them in connection with a joint venture.
Defendant denied liability and brought counterclaims against
a jury trial commenced, the parties settled their respective
claims. They entered into a consent judgment on February 21,
2014, to be paid by defendant to plaintiffs, in the
agreed-upon sum of $225, 000. The consent judgment was
"filed and recorded as a lien" on March 24, 2014.
consent judgment recited that plaintiffs agreed to stay its
execution until July 1, 2014. After that date passed, and
defendant still had not satisfied the judgment, plaintiffs
pursued collection efforts. They unsuccessfully attempted to
levy upon moneys due from numerous companies with which
defendant does business in New Jersey. Plaintiffs also
docketed the consent judgment in Pennsylvania, where
defendant resides. Bank account searches in New Jersey and
Pennsylvania, as well as a personal asset search of
defendant, were unproductive.
January 2016, defendant responded to a post-judgment
information subpoena concerning his finances. He claimed no
income from his business activities. He did reveal that he
and his wife own together a car, two real properties in
Pennsylvania, and the Mansfield parcel in New Jersey.
Plaintiffs have been unable thus far to obtain recovery of
their judgment out of the Pennsylvania real estate, or from
any other assets.
November 2 016, plaintiffs moved in the Law Division under
Rule 4:59-l(d) to compel the partition and sale of
the Mansfield property. Defendant opposed the motion. He
argued that such a forced sale and partition of real
property, which he co-owns with his spouse as tenants by the
entirety, is prohibited by N.J.S.A. 46:3-17.4.
oral opinion issued on January 6, 2017, the motion judge
denied plaintiffs' application. The judge recognized
that, under prior case law, a creditor could obtain the
forced partition and sale of interests in real estate owned
by a married couple as tenants by the entirety, depending
upon the relative equities involved. Nevertheless, the judge