Opinion
DOCKET NO. A-0921-11T4
07-03-2012
PAMELA M. KRUEGER, Plaintiff-Respondent, v. MARK KRUEGER, Defendant-Appellant.
John F. Meola, attorney for appellant (Mr. Meola, of counsel and on the brief; Jeffrey Zajac, on the brief). Kathleen A. Walrod, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-519-10.
John F. Meola, attorney for appellant (Mr. Meola, of counsel and on the brief; Jeffrey Zajac, on the brief).
Kathleen A. Walrod, attorney for respondent. PER CURIAM
Defendant Mark Krueger appeals from the September 8, 2011 order of the court denying his application to rescind or invalidate the parties' property settlement agreement (PSA) and to recover fifty percent of the mortgage escrow monies. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
The parties were married on August 20, 1988 and divorced on June 18, 2010. No children were born of the marriage. No alimony was ordered. The judgment of divorce incorporated a PSA containing the following language concerning the marital home:
Husband and [w]ife own, as tenants by the entireties, certain real property. . . . Husband and [w]ife agree that the property has a present market value of $285,000 and that they are each entitled to a 50% share in the equity of the home. There is current mortgage debt by way of a first mortgage lien with an approximate balance of $113,000, as well as a home equity line of credit supported by a second mortgage with a balance of approximately $11,000. Wife has been pre-approved for a mortgage of sufficient amount to satisfy these mortgage obligations. Within 30 days of the date hereof, [w]ife shall complete the refinance of the subject property mortgages in order to obtain sufficient funds on her own credit to satisfy the Wells Fargo first mortgage and home equity line and as much of the joint credit card debt described herein below as she can obtain approval for. . . . The [h]usband's 50% share of the equity of the marital home shall be paid to the [h]usband by means of a promissory note and secured by a second mortgage due and payable in full at the end of five years with interest at 0%. If at that time, wife is financially unable to pay off this debt to the [h]usband, the amount owed to the [h]usband shall be paid to the [h]usband without interest in [] 60 equal monthly payments on the first of each month beginning on the first of the month next succeeding the fifth anniversary of the [w]ife's refinance and purchase of the [h]usband[']s interest. No additional financing encumbering the property shall be permitted without the consent of [h]usband.
If for any reason the [w]ife defaults on the obligation by failing to make timely payment(s) to the [h]usband, the note shall be in default and the house shall be immediately listed for sale by a multiple listing realtor chosen by the [h]usband and sold at fair market value. Costs of enforcement of this obligation, if any, including reasonable attorney's fees shall be paid by the [w]ife.
Paragraph eight of the PSA required both parties to cooperate, indicating:
Each of the parties, from time to time, at the request of the other will execute, acknowledge and deliver to the other party [any and] all further instruments that may be reasonably required to give full force and effect to the provisions of this [a]greement.
On June 29, 2010 defendant signed a deed conveying his interest in the marital home to plaintiff Pamela M. Krueger. Defendant contacted plaintiff by letter dated August 24, 2010, asking that she record his second mortgage. Plaintiff responded that she would contact her lawyer and have him "do whatever is necessary to end all of this." Plaintiff later sought defendant's address to send the documents but, after receiving the documents, she provided neither the promissory note nor the second mortgage.
Defendant also sought his share of the escrowed third quarter real estate taxes, or $1655, a homeowner's insurance cancellation refund, or $76.50, and a mortgage escrow payment, or $36. He thus sought a total of $1767.50, representing one-half of the escrowed amounts, returned to or credited to plaintiff at closing. The PSA did not address the escrow funds, nor did it directly address the issue of which party was to prepare the legal documents.
Defendant sought oral argument on his enforcement motion, which was improperly denied without explanation by the judge. R. 1:6-2; Raspantini v. Arocho, 364 N.J. Super. 528, 531 (App. Div. 2003). The judge apparently misunderstood the facts. He ordered defendant to prepare a deed conveying his interest in the marital home to plaintiff, as well as to prepare the second mortgage and promissory note. He denied defendant's request for his share of the escrow funds on the basis that defendant had caused plaintiff to incur counsel fees in responding to his motion. The judge in his attached statement of reasons indicated that defendant,
A motion for reconsideration, in lieu of an appeal, may well have been appropriate under the circumstances. See R. 4:49-2; Calcaterra v. Calcaterra, 206 N.J. Super. 398, 403-04 (App. Div. 1986) (indicating that a motion for reconsideration is particularly useful when the order deals with unlitigated matters); Cummings v. Bahr, 295 N.J. Super. 374, 382-84 (App. Div. 1996) (regarding the standard for reconsideration).
is overdue by 14 months in executing a [d]eed conveying his interest in the former marital home to the plaintiff. The plaintiff did not file a cross claim seeking same but, unless the defendant wishes to
force her to do same, knowing that the court almost certainly would award her counsel fees for having to do so, he should sign it forthwith.
As the judge mistakenly believed defendant had not provided a deed, we are constrained to reverse and remand for oral argument, and a hearing if necessary.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION