Opinion
DOCKET NO. A-0386-11T3
02-28-2013
ANNA L. PETRILLO, f/k/a ANNA L. GROESBECK, Plaintiff-Appellant, v. WILLIAM T. GROESBECK, IV, Defendant-Respondent.
King, Kitrick & Jackson, LLC, attorneys for appellant (John J. Jackson, III, on the brief). Robert B. Woods, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-441-09B.
King, Kitrick & Jackson, LLC, attorneys for appellant (John J. Jackson, III, on the brief).
Robert B. Woods, attorney for respondent. PER CURIAM
In this matrimonial matter, plaintiff, Anna L. Petrillo (formerly "Anna L. Groesbeck"), appeals from the post-judgment order denying her motion to enforce litigant's rights, claiming the court erred when it denied her application to compel her former husband, defendant, William T. Groesbeck, IV, to execute a deed transferring his interest in the former marital home. Further, plaintiff contends the court should not have granted defendant's cross-motion prohibiting the sale of the marital residence without his consent because she can no longer financially afford to maintain the home. We reject each of these contentions and affirm.
The parties were married on June 8, 1996. They have two children born out of their union. During the marriage, they purchased the marital home, which is located in Farmingdale, New Jersey. The final judgment of divorce (FJOD) was entered on May 18, 2010. Incorporated into its terms was the Matrimonial Settlement Agreement (MSA), which the parties previously reached. Under its terms, plaintiff would remain in the marital residence with their two children. Defendant agreed to pay $4000 in monthly alimony and $250 in weekly child support. At the time the parties entered into the MSA, the marital residence was appraised at approximately $500,000, with an outstanding first mortgage of $459,000 and an outstanding second mortgage of $27,000.
The portions of the MSA relevant to this appeal provide:
[Defendant's] name shall remain on the first mortgage on the marital premises and the Deed shall remain in both parties' names until wife can secure financing in her name within twelve (12) months from the entry of [an FJOD].
[Plaintiff and defendant] shall apply for a loan modification with the current first mortgage holder . . . seeking a lower APR and lower monthly payment. Once . . . approved and effectuated, the first mortgage, as well as all real estate taxes and homeowners' insurance, will be paid by [plaintiff].
Effective June 1, 2010, [plaintiff] shall be responsible for monthly payments on the second mortgage, all real estate taxes and homeowners' insurance on the subject premises and shall indemnify [defendant] . . . .
. . . .
In the event [plaintiff] is unable to obtain financing in her name within twelve (12) months after entry of the [FJOD], the parties may, at their mutual consent, list the marital premises for sale. In the event a shortfall occurs, [plaintiff] shall be responsible for the shortfall of the sale of the marital premises. [Defendant] will not receive any monies from the sale of the marital premises; however it is hereby recognized and acknowledged by [plaintiff and defendant] that it is in the best interests of the children to retain the marital premises until graduation of the children from high school, if financially possible by [plaintiff].
After the divorce, both parties sought refinancing but both were apparently unsuccessful. In April 2011, plaintiff listed the residence for sale without defendant's consent. On June 16, 2011, defendant notified the listing agent that he had not consented to the sale, and the property was removed from all listings.
On July 12, 2011, plaintiff filed a motion seeking to enforce litigant's rights. Among the relief sought was an order compelling defendant to execute a deed transferring his interest in the former marital home to her within ten days and imposing a twenty-five-dollar daily sanction upon defendant for each day he refused to comply with the court's order. Defendant filed a cross-motion, in which he sought, among other relief, an order restraining plaintiff from listing and selling the home without defendant's consent.
Judge Paul X. Escandon conducted oral argument the following month, after which he denied plaintiff's request that the court compel defendant to execute a deed transferring his interest in the marital property to her. He granted defendant's application to restrain plaintiff from listing and selling the home without defendant's consent.
In reaching his decision, the judge noted the MSA provided that in the event the financing could not be obtained within twelve months following the entry of the FJOD, the parties "may, at their mutual consent," agree to sell the marital residence, but that defendant had not given his consent. The judge also noted that within the MSA, the parties acknowledged it was in the best interests of their children that the parties retain the marital residence until the children graduated from high school. Judge Escandon additionally agreed plaintiff had failed to provide the requisite documentation to support her claim that she had failed to secure refinancing of the home. Finally, he expressed concerns about plaintiff's "truthfulness in filling out her case information statement[,]" observing that she listed certain expenses, which appeared excessive. The present appeal ensued.
On appeal, plaintiff raises the following points for our consideration:
POINT I
THE TRIAL COURT EMPLOYED THE WRONG STANDARD ADDRESSING MODIFICATION/INTERPRETATION AND/ OR CONSTRUCTION OF THE MATRIMONIAL SETTLEMENT AGREEMENT.
POINT II
THE TRIAL COURT FAILED TO REVIEW THE TERMS OF THE MATRIMONIAL SETTLEMENT AGREEMENT TO DETERMINE IF THE "CONSENT TO SELL" CLAUSE IS UNCONSCIONABLE, OVERREACHING OR INEQUITABLE.
POINT III
A TERM REQUIRING CONSENT TO MOVE IS PER SE UNCONSCIONABLE AND MUST NOT BE ENFORCED.
POINT IV
THE TRIAL COURT ERRED BY MAKING CRITICAL "FACT" FINDINGS WITHOUT A HEARING.
POINT V
THE DEFENDANT'S ATTORNEY'S IMPROPER ATTACKS ON THE PLAINTIFF TAINTED THE PROCEEDINGS.
We have considered the points raised in light of the record, arguments advanced in the briefs, and the applicable legal principles, and we conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Escandon in his August 5, 2011 oral opinion. We add the following brief comments.
Settlement agreements are enforceable contracts as long as they are fair and just. Petersen v. Petersen, 85 N.J. 638, 642 (1981); Lepis v. Lepis, 83 N.J. 139, 146 (1980). "[F]air and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed." Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999).
We agree with the trial court that, as with any contract, a court should enforce a divorce agreement as written. Brawer v. Brawer, 329 N.J. Super. 273, 284 (App. Div. 2000). There is no requirement under the MSA that the former marital residence be sold in the event refinancing could not be obtained. Rather, the MSA states the parties may list the property for sale, provided both parties consent. Defendant has not consented. Given the parties' recognition and agreement that retaining the marital home until the children graduate from high school is in the children's best interests, we find nothing manifestly unfair or unjust in the trial court's determination that there was no basis upon which to disturb the terms of the MSA voluntarily and knowingly reached between the parties. We have long acknowledged the Family Part's special expertise and accord particular deference to fact-finding in family cases and to the conclusions that logically flow from those findings. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We discern no basis to disturb the findings and legal conclusions reached in this instance.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION