Opinion
DOCKET NO. A-4469-13T1
08-13-2015
CASSANDRA R. TERRY, Plaintiff-Respondent, v. RICHARD S. TERRY, Defendant-Appellant.
Christian A. Pemberton, attorney for appellant. Cassandra R. Terry, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Family Part, Burlington County, Docket No. FM-03-0379-11. Christian A. Pemberton, attorney for appellant. Cassandra R. Terry, respondent pro se. PER CURIAM
In this dissolution matter, defendant Richard S. Terry appeals from the portion of the Family Part's October 24, 2012 second amended dual final judgment of divorce (FJOD II) as it relates to the equitable distribution (ED) of certain real estate. On appeal, he argues the court erred by finding one property (rental property) subject to equitable distribution, and by delaying the sale of another property (former marital home) that was subject to distribution. In response, plaintiff Cassandra A. Terry, argues defendant's appeal should be dismissed as untimely and, in any event, plaintiff's brief argues issues unrelated to the 2014 order and only related to the parties' July 17, 2012 amended dual final judgment of divorce (FJOD I), from which defendant never appealed.
Defendant's notice of appeal also states he is appealing the court's April 17, 2014 order entered in response to his motion for reconsideration. However, he only argues the court erred in its entry of the FJOD II as to issues unrelated to the 2014 order.
Having carefully reviewed the record and the applicable legal principles, we affirm.
The parties were married in 1989. They had four children, three of which, ages twenty, nineteen and eighteen, were attending college at the time of the divorce; the other child was seventeen and in high school.
The Family Part conducted a trial over the course of six days, the last being February 21, 2012, and it entered a final judgment of divorce on June 8, 2012, terminating the marriage. The court entered the judgment after it placed on the record its findings of facts and conclusions of law. It directed that counsel submit an amended judgment for filing, incorporating its rulings, which included the ED of the two properties.
During the trial, the parties and plaintiff's parents testified about the properties. The central issue was whether the rental property, held only in defendant's name, was subject to ED. It was undisputed that the parties met in 1987, defendant purchased that property in June 1988, moved into it in December, 1988, got married to plaintiff in June 1989 and lived with her in the rental property from then until 1993, when they purchased and moved into the former marital home, located across the street from plaintiff's parents.
Plaintiff testified defendant purchased the rental property in contemplation of their being married. Her testimony was confirmed by her parents. Plaintiff testified in 1988 defendant's apartment lease was coming to an end. He did not want to continue as a tenant and was looking to relocate to the community where plaintiff's family lived. Plaintiff's father encouraged him to purchase a home instead. Specifically, it was suggested he purchase a HUD home and until he found one, plaintiff's parents allowed defendant to reside with them and plaintiff in their home.
"A HUD home is a 1-to-4 unit residential property acquired by HUD as a result of a foreclosure action on an FHA-insured mortgage. HUD becomes the property owner and offers it for sale to recover the loss on the foreclosure claim." U.S. Department of Housing and Urban Development, Buying HUD Homes, http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/sfh/reo/reobuyfaq (last visited July 16, 2015).
After defendant moved in, he began to look for a house. When he found a HUD home to purchase, plaintiff was at the closing with him. After the closing, defendant did not move into the house because it needed a substantial amount of work, which the parties performed along with plaintiff's parents, who worked on the house even while defendant was away on business. Defendant moved into the house in January 1989 at which time the parties were already planning their wedding. Plaintiff did not move in until after their wedding in June because that was "something [her] parents would not have accepted."
Plaintiff's father, Herbert Smith, Sr., corroborated plaintiff's testimony. He stated the parties started dating in 1987, after meeting at church and "shortly thereafter [defendant] announced that he was proposing marriage and that he was interested in purchasing . . . [a] home in the Willingboro area." After "they said they wanted to get married," he invited defendant to come live with them in their family home because defendant "had no place to live" as his lease for his apartment in Pennsylvania terminated. Defendant later purchased the rental property but did not move into it because the "inside was really trashed." Smith described the work he and plaintiff did to the rental property to put it into a habitable condition.
Plaintiff's mother, Vera Smith, also testified on plaintiff's behalf and essentially confirmed her daughter's and husband's testimony about how the parties met, their discussions about getting married, which led to everyone making "preparations for the marriage," the purchase of the rental property and the work she performed there with plaintiff and her husband. She testified defendant approached her after he and plaintiff planned on getting married to ask if he could live with them because he did not want to sign a new lease for his apartment. She then spoke to "her husband about it and he said, yes, that's something that probably is okay only because they are going, to get married." They had never agreed to allow any other of plaintiff's boyfriends to move in before they allowed defendant.
Plaintiff's mother also described the reason why she recommended the parties look for a HUD home to purchase. She stated "it would save [them] money . . . it could be a starter home . . . and later on [they could] use the house as an investment for [their] children's college." Defendant agreed it was a good idea, and the family began to look for a HUD house. After the closing, plaintiff's mother performed work at the house with her husband and plaintiff. She especially recalled that while her husband was installing an archway, she "had to hold the arch and [it was] heavy." She described some of the other work they performed, including "things like the floors, the backsplash to the tile. We ripped up carpet, spackled walls. We did a lot of stuff, hauled all the debris from the inside."
Defendant testified to the contrary. According to defendant, he became interested in moving into the area when his existing lease expired, he knew plaintiff's parents from church and they "opened up their home to [him] and said [he could] stay here if [he is] looking for a property." By 1987, he thought of plaintiff's family as his own. He lived with them in 1988, purchased the rental property, moved in, became engaged to plaintiff and married her in 1989.
He stated he never promised to marry plaintiff while living with her parents. Also, when he purchased the rental property it was before he and plaintiff became engaged in 1989. In his "mind, [it] was a house that [he] was purchasing to live in Willingboro irrespective of [his] relationship with . . . plaintiff." At the time, although they were dating, "plaintiff was not exclusively seeing [him]. She was also seeing a gentleman by the name of Wendell." It was only later they decided that they would live there as husband and wife. Although defendant acknowledged plaintiff's parents "were happy to help [him]" renovate the home, he minimized the labor plaintiff and her parents testified about and noted that he made almost all of the major purchases and decorating decisions for the home.
Years later, when the parties moved out and rented the house to others, defendant always placed plaintiff's name on the lease "[b]ecause they did everything together." In addition to the leases, defendant had plaintiff sign mortgage documents relating to a refinancing he obtained. Also, all rent he collected was deposited into the "family account" and after payment of the property's' expenses, any residual was used to pay the family's household expenses. However, the trial court did not rely on these facts as they occurred long after the purchase.
On June 8, 2012, the trial judge placed his decision on the record. Prior to making specific findings of fact as to the two properties, he made credibility findings. The judge stated:
[F]or the most part, I found [the parties'] testimony credible. Even when it was contradictory, it was more in my opinion the ravages of memory and the tinge of self-interest but certainly . . . I didn't find anybody lying. . . . But of all the witnesses, the witness that I found the most credible was Herb Smith. There was just something about his testimony . . . there were no reaches involved in his testimony. I found it very straightforward. He conceded that he didn't take any shots at [defendant] in the testimony which dealt with custody. I just thought he was a very credible, dignified gentleman.
The court expressly relied upon its finding plaintiff and her parents to be more credible about the sequence of events relating to the parties' engagement and the acquisition of the rental property being part of their plans. The court also relied upon the extent of the work performed by plaintiff and her parents as "the basis of [its] decision on [the rental property] being a marital asset." The court stated it did not "believe [plaintiff and her parents] would have spent that amount of time working on that property for a guy that they had not met until sometime in '87, unless that guy was going to be their daughter's husband."
In addition to finding the rental property to be a marital asset, the court awarded plaintiff possession of the former marital home based on its award to the parties of joint legal custody of their children and designation of plaintiff as the parent of primary residence. The court made that determination after carefully reviewing each statutory consideration for determining custody. N.J.S.A. 9:2-4(c). In addition, the court found significant to the children's best interest "the proximity of the grandparents [being] right across the street [who have] been a big part of the lives of the children." It also considered the two children's desire to remain with their mother, living near their grandparents. The court directed defendant to move out of the former marital home within thirty days and stated:
I am not going to order the sale of the house at this period, okay? That can be a post judgment motion when the kids . . . are no longer there. I want the kids to have the house where they grew up in the proximity of the grandparents until we're sure they're on their way, okay?
The court also addressed the other issues arising from the parties' divorce, including alimony, child support, the ED of remaining marital property and counsel fees. As to counsel fees, the court decided not to make an award to either party and it placed its reason for its decision on the record. After the court completed its decision, defendant's counsel asked whether a previously ordered pendente lite award of counsel fees, in the amount of five thousand dollars, had to be paid to plaintiff in light of the court's final decision. After considering the issue, the court stated because the award "had already been ordered, it's still order[ed]" and had to be paid.
The court's rulings regarding the properties were incorporated into the FJOD I. Section seven directed that the former marital home be appraised and granted possession of it to plaintiff, until the "minor children move out of the [house], [at which time] a post-judgment motion may be filed for the sale of the home." The court ordered that the rental property be appraised, permitted defendant to have an opportunity to buy out plaintiff's interest and, if he did not, ordered its sale with the proceeds to be divided equally.
On August 8, 2012, defendant filed a motion for reconsideration "and for clarification" of the court's July 17, 2012 "order." In his supporting certification, defendant challenged the court's calculation of its ED award to plaintiff from the proceeds of the properties' sale. He argued a different calculation should have been used and asked that the FJOD I be amended to "set forth the distribution is subject to the applicable capital gains tax and the basis for the tax and equity in the property." He also argued that the court failed to take into consideration certain tax consequences regarding the ED of stock held by defendant and further sought correction of the FJOD I, which awarded plaintiff counsel fees when the court stated it was not going to award fees as part of the final judgment. The court considered the parties' oral argument on October 5, 2012 and, ten days later, issued a "letter" order, filed on October 24, indicating that attached was a second amended dual final judgment of divorce (FJOD II), "which incorporate[d] the changes made as the result of the Motions for Reconsideration." The FJOD II was also filed on October 24, 2012, and despite defendant's motion, it still contained a requirement that defendant pay plaintiff counsel fees.
By that time, the trial judge was assigned to a different division of the Superior Court. He considered the reconsideration motion and another motion filed by plaintiff for enforcement to be his last act handling the matter. However, the order and FJOD II which the court filed on October 24, 2012, were signed by a different judge.
Defendant filed a second motion for reconsideration and clarification of the court's "order" on November 19, 2012, as to the FJOD II. In his certification, defendant again addressed the sale of the rental property and the need for language in the judgment which obligated plaintiff to pay capital gains tax if defendant purchased plaintiff's interest in the property. The motion did not address any other issues relating to the ED of the two properties. However, it did raise again the need to correct the award of counsel fees, which should have been resolved after the first reconsideration motion. On April 17, 2014, the court (the original judge) entered a "letter" order stating that "[i]rrespective of whether [the property] is a buy out or sale each party is to pay fifty percent of the capital gains tax." It also vacated defendant's obligation to pay counsel fees.
On June 2, 2014, defendant filed a Notice of Appeal challenging the April 17, 2014 order. However, in the notice, defendant specified he was appealing "[p]ages 5 and 6, [p]aragraph 7 of the [FJOD II] pertaining to [the two properties] and [p]age 5, [p]aragraph 7 pertaining to [the] time of distribution of [d]defendant's equitable share of the marital home." In his appellate brief, defendant argues the rental property should not have been subject to ED and the marital home's sale should not be delayed. It is undisputed that neither argument has anything to do with the issues raised in his motions for reconsideration.
In response to plaintiff's argument that defendant's appeal is untimely, defendant argues his reconsideration motions, and therefore his appeal, is timely because (1) his first motion for reconsideration, filed on August 8, 2012, from the FJOD I, was timely because his counsel received it in on July 21; (2) he filed his second motion for reconsideration on November 19 from the court's October 15 order and the attached FJOD II, both filed on October 24, which his attorney received on October 29; and (3) the June 2, 2014, filing of his Notice Appeal from the court's April 17, 2014 order was timely because the forty-fifth day fell on Sunday. He finally argues that he was not obligated to raise the issues he now argues before us until his motions for reconsideration were decided.
Defendant also notes that he filed another motion, this time for a stay of the sale of the rental property on October 3, 2013, which the court postponed until the second motion for reconsideration was decided by the court in April 2014.
We begin our review by first addressing plaintiff's argument that defendant's appeal is untimely and should be dismissed. A timely notice of appeal must be filed within forty-five days of a final judgment's entry, R. 2:4-1, unless the time for filing is tolled by a properly filed motion for reconsideration. R. 2:4-3(e). A timely motion for reconsideration must be served within twenty days after service of the court's judgment or order upon all parties. R. 4:49-2. An untimely filed or served motion for reconsideration will not toll the period for filing an appeal. Eastampton Center, L.L.C. v. Planning Bd. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002). If the motion is timely filed, the period for appealing begins to run again after the entry of an order disposing of the motion. R. 2:4-3(e).
Defendant had forty-five days to appeal the portions of the July 17, 2012 FJOD I he challenged. The forty-five day period initially expired August 31, 2012. R. 2:4-3. Defendant received the FJOD I on July 21. In order to seek reconsideration, defendant had to file his motion by August 10, 2012. It is undisputed he filed his motion for reconsideration on August 8, 2012. Therefore, his reconsideration motion tolled the time to appeal until October 24, 2012, with the entry of the FJOD II. At that point there were twenty-three days left, or until November 16, 2012, for defendant to file an appeal from the FJOD I. However, instead of filing an appeal from the FJOD I, on November 19, 2012, he filed a timely motion for reconsideration of FJOD II.
Although defendant then had forty-five days or until December 8, 2012, to file an appeal from the FJOD II, his motion for reconsideration tolled the time for appealing. It remained tolled until the court entered the April 2014 order. Defendant's appeal in June 2014 was therefore not untimely.
The record does not reveal the reason for this unusual delay in the order's entry.
The fact that defendant appeals from portions of the FJOD II he never disputed in his reconsideration motions does not prevent him from arguing those issues in his appeal. As we have previously stated, appeals must await the complete resolution of "'all issues as to all parties'" in order to avoid piecemeal consideration. Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 303 (App. Div. 2005) (quoting Hudson v. Hudson, 36 N.J. 549, 553 (1962)).
"A party is required to raise in a single appeal all of his challenges to the judgmentThus, "[t]o be considered final and appealable as of right, a judgment must resolve all issues as to all parties." N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J. Super. 354, 358 (App. Div.) (citation omitted), certif. denied, 199 N.J. 543 (2009).
appealed from. The appellate court has no greater tolerance for piecemeal litigation than do the trial courts, and the filing of separate appeals by the same party from the same final judgment is an obvious, untenable, and intolerable violation of the overriding policy of judicial administration that litigation be conducted expeditiously, economically, and efficiently."
[Id. at 303-04 (quoting In re Unanue, 311 N.J. Super. 589, 598-99 (App. Div.), certif. denied, 157 N.J. 541, (1998), cert. denied, 526 U.S. 1051, 119 S. Ct. 1357, 143 L. Ed. 2d 518 (1999)).]
Accordingly, despite the inexplicable, extraordinary delay from the filing date of defendant's second reconsideration motion to the date of its disposition, defendant could not have raised the issues he argues on appeal now in any earlier appeal while the reconsideration motion was pending.
Having concluded defendant's appeal was timely and not procedurally barred, we turn our attention to the Family Part's decision regarding the ED of the two properties.
Appellate review of a court's division of marital assets is limited to determining whether it abused its broad discretionary authority. La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001); see also Valentino v. Valentino, 309 N.J. Super. 334, 339 (App. Div. 1998) (appellate court reviews whether the trial court's decision on ED is clearly unfair or unjust or contrary to the evidence); Wadlow v. Wadlow, 200 N.J. Super. 372, 377 (App. Div. 1985) (trial court has "broad authority" in dividing marital property). An award of ED will be affirmed "as long as the trial court could reasonably have reached its result from the evidence presented, and the award is not distorted by legal or factual mistake." La Sala, supra, 335 N.J. Super. at 6.
"'[T]he goal of equitable distribution . . . is to effect a fair and just division of marital [property].'" Elrom v. Elrom, 4 39 N.J. Super. 424, 444 (App. Div. 2015) (quoting Steneken v. Steneken, 183 N.J. 290, 299 (2005)). "To fashion an equitable distribution award, the trial judge must identify the marital assets, determine the value of each asset, and then decide 'how such allocation can most equitably be made.'" Ibid. (quoting Rothman v. Rothman, 65 N.J. 219, 232 (1974)).
In addition, the judge must consider, but is not limited to, the sixteen statutory factors set forth in N.J.S.A. 2A:34-23.1. Fashioning an [ED] of marital assets and debts requires more than simply "mechanical division"; it requires a "weighing of the many considerations and circumstances . . . presented in each case."
[Ibid. (quoting Stout v. Stout, 155 N.J. Super. 196, 205 (App. Div. 1977)).]
The parties' dispute at trial, and now on appeal, focused on whether the rental property was "pre-marital," and therefore not subject to ED. See ibid. ("[A]ny property owned . . . at the time of marriage will remain [] separate property of such spouse and . . . will not qualify as an asset eligible for distribution." (quoting Painter v. Painter, 65 N.J. 196, 214 (1974))).
Defendant acknowledges that acquisition by one party to a marriage of real property in his or her name only, with an intent to be married, will subject the property to ED, as we held in our decisions in Weiss v Weiss, 226 N.J. Super. 281, 287 (App. Div.), certif. denied, 114 N.J. 287 (1988), and Winer v Winer, 241 N.J. Super. 510, 527 (App. Div. 1990). However, he argues the facts in this case are distinguishable from the cited cases and, in any event, do not support the court's finding that the rental property was subject to ED. We disagree.
As we stated in Weiss,
We conclude that the Court's approach to the interpretation of N.J.S.A. 2A:34-23 . . . supports the conclusion that a date prior to the marriage ceremony can, in appropriate circumstances, qualify as the date of commencement of the marriage for the purpose of deciding whether property is a marital asset subject to equitable distribution. Just as the [Court] . . . has recognized that the marital partnership may terminate prior to the entry of a judgment of divorce, we believe that for the purpose of triggering a right of equitable distribution a marital partnership may be found to have commenced prior to the marriage ceremony, where the parties have adequately expressed that intention and have acquired assets in specific contemplation of their marriage. This conclusion recognizes that the "shared enterprise" of marriage may begin even before the actual marriage ceremony through the purchase of a major marital asset such as a house and substantial improvements to that asset.
[Weiss, supra, 226 N.J. Super. at 287.]
In our review of the Family Part's decisions regarding the ED of property, we must defer to that court's findings. We will not disturb the trial court's findings unless they are demonstrated to lack support in the record with substantial, credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The trial judge's factual findings are entitled to enhanced deference because they are based on the credibility of witnesses that appeared before him. See id. at 484. In addition, "we do not second-guess [the] findings and the exercise of [] sound discretion" by family judges. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007); see also Cesare v. Cesare, 154 N.J. 394, 412 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). Given the Family Part's special expertise, appellate courts must accord particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13. We must also give due regard to the trial judge's credibility determinations and "feel for the case" based upon the opportunity of the judge to see and hear the witnesses. N.J. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 396 (2009); see also Cesare, supra, at 412.
We conclude from our review of the record, the court's decision was supported by substantial credible evidence that satisfied the two requirements for establishing a property being subject to ED even though it was acquired by one party before the marriage. See Weiss, supra, 226 N.J. Super. at 287. As noted, the court made specific credibility determinations and relied on the parties' conduct in reaching its determination. Specifically, it found plaintiff's father's testimony to be especially credible regarding the chronology of the parties' relationship and the work performed at the rental property, and drew from that testimony the logical inference that plaintiff and her parents would not have performed the extensive work at the rental property had the parties not planned on getting married and intended to acquire the rental property as their initial family home.
We, therefore, reach the same conclusion here as we did in Weiss, in which we stated:
The record amply supports the trial judge's findings that plaintiff participated with defendant in the decision to purchase the marital home, that the parties intended it to be their marital home at the time of purchase, and that plaintiff was actively involved in making improvements to the home both prior to and after the marriage. These facts provided sufficient support for the trial judge's conclusion that there was an implied contract between the parties that the home would be a marital asset. Thus, the trial judge properly concluded that this implied contract should be enforced.
[Weiss, supra, 226 N.J. Super. at 288.]
We next address defendant's argument regarding the deferred sale of the former marital home. A delayed sale is a proper exercise of a court's authority in the performance of its task in the ED of property as well as the establishment of child support, Schaeffer v. Schaeffer, 184 N.J. Super. 423, 427-28 (App. Div. 1982), and in order to protect the best interests of the parties and their dependent children. Randazzo v. Randazzo, 184 N.J. 101, 111-113 (2005).
The court's award here of possession of the former marital home to plaintiff until the children, who were either college age or close to it, moved out was based upon its determination of the children's best interest. It made that determination after taking into consideration, among other factors, the children's wishes and the proximity of the former marital home to their grandparents who it found played a substantial role in their upbringing and care.
We find no abuse in the trial court's discretion in delaying the sale of the former marital home.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
See also Berrie v. Berrie, 252 N.J. Super. 635, 646 (App. Div. 1991) ("The 'intention' described in Weiss is not an intention to marry, but rather to create 'a marital partnership . . . prior to the marriage ceremony' . . . with respect to the particular property, i.e., the equivalent of a business partnership." (citation omitted)).