IF My Divorce Agreement Says Our House Shall Be Sold But My “Ex” Do Not Cooperate, How Can A N.J. Lawyer Help Me?
The lawyers at our East Brunswick, New Jersey law firm would, at a minimum, file a motion with the Family Court seeking a limited power of attorney that would allow to sell the real property without the other spouse (and ½ owner) being involved. Our attorneys would be sure the court order is clear in details, including our client’s ability to sign their ex-spouse’s name on any and all documents required to effectuate the sale of the property. Below is a discussion by the New Jersey Appellate Division that analyzes this issue when one party refuses to cooperate in good faith when selling a piece of real estate.
In Pierson v. Pierson, the parties were married in October 1985. The parties had two children born of the marriage. The parties later divorced by a judgment of divorce. A supplemental judgment of divorce was later entered when the parties agreed to settle several issues. One of the issues the parties settled was to list and sell the marital home, which had previously been put on the market. The Superior Court of New Jersey Family Part held a four-day trial to resolve the parties’ remaining issues. On July 30, 2007, the court entered a second supplemental judgment of divorce, which granted the ex-husband sole possession of the marital home. The order also required that the ex-wife leave the home by September 2007, and ordered that the ex-husband pay the ex-wife $50,000 for the first year after the divorce and another $50,000 for the second year after the divorce if the parties’ marital home was not sold by that time.
The ex-wife appealed the second supplemental judgment and argued against the requirement that she leave the marital home, the amount of support she was supposed to receive after the divorce, and the sale of the parties’ marital home. The ex-wife also challenged the obligation for payment of her health insurance coverage. In 2010, the New Jersey Appellate Division determined that the trial court judge abused his discretion by failing to pay the ex-wife for the ex-husband’s continuing use of the marital home from which she had been required to leave. The Appellate Division also determined that the trial court must determine how much the ex-wife is owed from the rental value of the marital residence from the time the ex-wife was required to leave through the time the house is sold. Furthermore, the Appellate Division noted that the issue of the ex-wife’s health insurance coverage was not decided.
The parties’ issues remained unresolved until April 2015 when the ex-wife filed a motion in aid of litigant’s rights with the court requesting several forms of relief based on the 2010 decision. The ex-wife explained that she did not seek the relief sooner because of her health issues. In her motion, the ex-wife asked the court to give her the exclusive right to make decisions regarding the sale of the parties’ marital home. The ex-wife also asked the court to appoint someone to receive mortgage payments and oversee the sale of the marital home, as well as determine the fair market value of the home. Lastly, the ex-wife asked the court to require the ex-husband to pay the ex-wife’s health insurance coverage and attorney’s fees. The ex-husband opposed the ex-wife’s motion and filed a cross-motion with the court. The ex-husband asked the court to suppress the ex-wife’s expert report and attorney’s certification, as well as schedule a plenary hearing and case management conference. A plenary hearing is necessary when there are issues of material fact and the court determines that testimony is necessary to resolve the issues. A case management conference is the initial hearing where the parties meet with the judge to consider the issues of the case.
On July 24, 2015, the trial court judge, Judge Enright, entered an order granting the ex-wife’s request that the ex-husband pay the ex-wife half the fair market rental value of the parties’ marital home. Additionally, the judge found that the ex-wife’s export report was not certified; therefore, the judge appointed Professional Appraisal Associates to establish the home’s rental value. The judge determined that the ex-husband had been living in the home without paying the co-owner and had not been paying the mortgage on the home, which had increased over the last eight years. The judge ordered the parties to comply with sale of the home and ordered the ex-husband to keep the house presentable. However, the judge denied the ex-wife’s request to exclude the ex-husband from the sale process. The judge also required the parties to provide financial information and required the ex-wife to provide proof of her health insurance costs. Lastly, the judge denied the ex-husband’s request to schedule a case management conference and plenary hearing.
The Professional Appraisal Associates filed its report with the court on October 26, 2015, which concluded the fair market value of the parties’ marital home. The Professional Appraisal Associates determined that the fair market value from 2008 through 2015 was $5,800 per month. At that time, the ex-wife presented proof of her health insurance costs. The ex-wife then filed a second motion in aid of litigant’s rights with the court on December 16, 2015. The ex-wife requested her half of the value of the marital home, totaling $258,100. The ex-wife also requested $16,566 for previous health insurance expenses, among other things. The ex-husband opposed the motion and requested a plenary hearing again. Oral argument on the issues was held on January 29, 2016 in the trial court in front of Judge Byrne. Judge Byrne ordered the ex-husband to pay the ex-wife half of the value of the marital home in the amount of $258, 100. The judge also ordered the ex-husband to be excluded from the sale of the marital home and ordered the ex-husband to pay $16,566 for the ex-wife’s previous medical expenses because the ex-husband did not provide any financial information as required by Judge Enright. Lastly, Judge Byrne ordered the ex-husband to pay the ex-wife’s attorney’s fees because the ex-wife would not have had to file the second motion if the ex-husband had complied with Judge Enright’s order.
On appeal, the ex-husband argued that the trial court judge was wrong to order him to pay the ex-wife half the value of the marital home and the ex-wife’s medical costs without conducting a plenary hearing. Also, the ex-husband argued that he should not be punished for the ineffectiveness of his former attorney who was subsequently disbarred. The New Jersey Appellate Division stated that it would not overturn the decision of the trial court when the trial court’s decision was based on credible and substantial evidence. The Appellate Division explained that decisions are only reversed when there was a clear mistake that would deny justice. The Appellate Division agreed with the trial court and affirmed its decision.
The Appellate Division rejected the ex-husband’s argument that a plenary hearing was necessary. The court stated that there was no issue of material fact because, unlike the ex-wife, the ex-husband did not provide any financial evidence to dispute the appraisal of the marital home’s fair market value or the total cost of the ex-wife’s health insurance. Similarly, the Appellate Division found that the ex-husband’s reasoning as to why the marital home had still not sold were inefficient to refute the appraiser’s determination of the value of the home and inefficient to explain why the ex-husband was not paying the mortgage. Therefore, the Appellate Division found no abuse of discretion with regard to the trial court’s decision on these matters. The Appellate Division also rejected the ex-husband’s argument of ineffective assistance of counsel. The court stated that the ex-husband did not provide any support to show that there is a constitutional right to effective assistance of counsel in matrimonial cases. Ultimately, the Appellate Division affirmed the decision of the trial court.