Opinion
DOCKET NO. A-2172-14T1
03-16-2016
WILLIAM BENNING, Plaintiff-Appellant, v. JENNIFER BENNING, n/k/a JENNIFER CAPPIELLO, Defendant-Respondent.
Toni Ann R. Marcolini, attorney for appellant. Jennifer Cappiello, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-0844-13. Toni Ann R. Marcolini, attorney for appellant. Jennifer Cappiello, respondent pro se. PER CURIAM
Plaintiff William Benning appeals from a December 2, 2014 post-divorce judgment order denying his application to compel defendant Jennifer Benning to pay him $40,000 because she allegedly sold the former marital residence for less than its fair market value. Having reviewed the record and applicable law, we affirm.
The parties were married in 1984 and divorced in 2013. They have one child, who is emancipated. The final judgment of divorce incorporated a property settlement agreement (PSA), negotiated by both parties with the help of counsel. In the PSA, both parties waived alimony. With regard to equitable distribution, defendant agreed to accept a lump sum payment of $250,000; in return, plaintiff was allowed to keep all personal property in his possession, as well as three pieces of real property, including the former marital residence. Plaintiff was to pay defendant $240,000 within fourteen days of the execution of the PSA, and the remaining $10,000 within five days of defendant moving from the marital residence. Plaintiff also assumed sole responsibility for paying the mortgage on the marital residence.
The PSA was executed on September 6, 2013. Plaintiff, however, failed to pay defendant any portion of the $250,000 he owed. Defendant, therefore, filed a series of motions to compel plaintiff to comply with his obligation. The Family Part entered orders on April 17, 2014 and July 29, 2014, which found plaintiff in violation of litigant's rights for his failure to pay and awarded defendant sole authority to sell the former marital residence, as well as two other properties, so that she could receive $250,000.
During the course of motion practice, defendant learned that plaintiff had stopped paying the mortgage on the marital residence and the lender had filed a foreclosure action. Thus, as part of the July 29, 2014 order, the Family Part also restrained plaintiff from interfering with the sale of the former marital residence.
In August 2014, defendant accepted a cash offer and, thereafter, sold the marital residence for $225,000. Plaintiff contends that defendant sold the home for less than its fair market value because, after defendant received the cash offer, plaintiff's girlfriend made an offer to buy the home for $265,000 contingent on getting a mortgage. Thus, plaintiff filed an order to show cause to stop the sale, but the Family Part denied that application.
After the sale took place, plaintiff filed a motion to compel defendant to reimburse him $40,000, contending that he was entitled to the difference between the purchase price and what his girlfriend would have paid. In a December 2, 2014 order, Judge Peter J. Tober denied plaintiff's motion and issued a well-reasoned written statement of reasons supporting that denial. Judge Tober found that defendant had acted in good faith in accepting the cash offer. Judge Tober found credible the three reasons plaintiff provided for accepting the $225,000 offer instead of selling the property to plaintiff's girlfriend. First, defendant certified that she received the girlfriend's offer only after she had entered into a contract of sale. Second, defendant explained that the $225,000 offer was an "as is" cash offer, which allowed the closing to take place within thirty days. That offer was in contrast to the girlfriend's offer that was contingent on obtaining financing. Third, defendant certified that she was motivated to expedite the sale because of the pending foreclosure action. While plaintiff disputed defendant's reasons, Judge Tober rejected defendant's arguments, reasoning that defendant had brought about this situation by failing to pay the $250,000 for over a year.
On appeal, plaintiff argues that defendant breached her fiduciary duty and acted in bad faith. We disagree.
We accord substantial deference to the Family Part's findings given its special expertise in matrimonial and family disputes. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We will not disturb the factual findings of the Family Part unless the findings "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Legal interpretations, however, are reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
Here, we discern no basis for disturbing Judge Tober's findings that defendant acted in good faith and within the scope of her authority in the sale of the marital home. He also found defendant's conduct was reasonable and entirely justified. Those findings are supported by substantial evidence in the record.
Plaintiff owned the marital home following the divorce. He, however, failed to pay the mortgage and also failed to pay defendant the $250,000 he owed her. Plaintiff had been found to be in violation of litigant's rights twice by failing to satisfy a significant financial obligation for over a year. Defendant acted reasonably in enforcing her rights. Under the facts of this case, the alleged offer by plaintiff's girlfriend did not establish the fair market value of the marital residence. Just as significantly, defendant had good reason to accept an "as is" cash offer given that there was a pending foreclosure action. Considering all of these facts, plaintiff's arguments that defendant breached a fiduciary duty or acted in bad faith lack merit. See Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007) (stating that an allegation of bad faith requires proof of bad motive or intention); McKelvey v. Pierce, 173 N.J. 26, 57 (2002) (explaining that a fiduciary's obligations include a "duty of loyalty and a duty to exercise reasonable skill and care" (quoting F.G. v. MacDonnell, 150 N.J. 550, 563-64 (1997))).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION