FRANKLIN G. WHITTLESEY v. SHERRY A. WHITTLESEY

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5572-05T55572-05T5

FRANKLIN G. WHITTLESEY,

Plaintiff-Appellant,

v.

SHERRY A. WHITTLESEY

(n/k/a Sherry A. Ferrera),

Defendant-Respondent.

__________________________________

 

Argued June 13, 2007 - Decided

Before Judges Wefing and Weissbard.

On appeal from Superior Court of New

Jersey, Chancery Division - Family Part,

Somerset County, No. FM 18-667-04.

John W. Thatcher argued the cause for

appellant (Burton and Thatcher, attorneys;

Mr. Thatcher, of counsel and on the brief).

Brian G. Paul argued the cause for respondent

(Szaferman, Lakind, Blumstein, Blader &

Lehmann, attorneys; Mr. Paul and Jeffrey K.

Epstein, of counsel; Mr. Paul and Robert

Panzer, on the brief).

PER CURIAM

Plaintiff appeals from a post-judgment order entered by the trial court. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

The parties were married in 1996 and divorced pursuant to a judgment of divorce entered on March 24, 2004. They had one child, a daughter now seven years of age. In conjunction with their divorce, the parties executed a property settlement agreement under which defendant received the marital residence in Raritan. Paragraph 11 of the property settlement agreement provided as follows:

Marital Residence: (A) The Wife shall have sole title and interest in the former marital residence located at 7 Brentwood Road, Raritan, New Jersey. Upon the execution of this Agreement, the Husband shall sign a Bargain and Sale deed, Affidavit of Title and Affidavit of Consideration transferring his interest in the residence to the Wife.

(B) The parties represent that the real estate is encumbered by one mortgage in the approximate amount of $140,000. The Wife shall have 120 days from the date of execution of this Agreement to refinance the mortgage on the marital residence and remove the Husband's name from any liability connected to same. The Husband agrees to pay off the line of credit within 30 days of the execution of this Agreement[;] the line of credit is currently a lien against the residence in the approximate amount of $68,000. The Husband shall be solely responsible for any monthly payments connected with the line of credit owed to Commerce Bank as well as any liability connected with the debt and shall indemnify and hold the Wife harmless with regard to same.

(C) When the Husband vacates the marital residence he shall have no further obligation to pay any expenses connected with the residence. At that time the Wife shall be solely responsible for the payment of the mortgage, taxes and carrying costs and shall indemnify and hold the Husband harmless with regard to same.

Title to the property was subsequently transferred to defendant's name alone.

In January 2006 defendant received from the Raritan Construction Official a Notice of Violation of the municipality's construction code, specifically installation without the requisite permits of a laundry facility and an electric line for a hot tub. According to the notice, she was subject to penalties and required to bring the property into compliance.

Based upon that notice, defendant filed a motion seeking to compel plaintiff pay these costs. Defendant's certification in support of her motion recited that the work in question had been done while the couple were still married and resided together at the home. She also noted that they had during that time executed affidavits of title which stated that all necessary permits had been obtained for work performed. In addition, plaintiff had executed an affidavit of title in connection with the transfer to defendant of the marital residence as part of equitable distribution. That affidavit repeated that all necessary permits had been obtained. According to defendant, plaintiff had the work in question done without obtaining permits and had misstated the facts in these affidavits. Defendant maintained that as a result, plaintiff should be responsible for the cost of the necessary repairs and whatever penalties would be assessed.

Plaintiff opposed the motion. He recited in his certification that he did obtain the necessary permits for all work done while he resided in the house and that he had no knowledge of any work defendant might have had performed after the couple separated.

The trial court heard oral argument on the motion but did not take testimony. It directed that the parties share equally in the cost of repair and penalties. It also assessed a counsel fee of $1500 against plaintiff.

Having reviewed the certifications, we have concluded that the question of responsibility for bringing the home into code compliance could not be decided on the basis of the papers submitted. The parties presented clearly opposing factual contentions: plaintiff that he had obtained all necessary permits, defendant that he had not. While the result ordered by the trial court would be fair if defendant's version of what occurred was correct, it would not be fair if plaintiff's version was correct.

We are thus constrained to remand this matter to the trial court for further proceedings. We do so reluctantly in light of the comparatively small sum of money involved and the evident acrimony which exists between the parties. We cannot, however, order one party to pay a sum of money with the aim of forestalling greater expense and legal proceedings if that party is not responsible for the circumstances creating the obligation. We would hope that, particularly for the sake of the parties' child, they would, on remand, be able to come to some form of agreement.

The trial court also directed that plaintiff pay defendant a counsel fee of $1500. This award, according to the trial court's written opinion, was based upon what it deemed plaintiff's "bad faith by his abuse and semantic manipulation." An earlier order of the trial court contained the following provision: "Upon 24 hours notice to defendant, plaintiff may pick up Lauren after her morning school program on Thursday and may exercise parenting time until 8:00 p.m." Instead of notifying defendant each week, plaintiff sent a notification that he would be exercising this visitation every Thursday.

We are uncertain as to how this notification translates into "bad faith and semantic manipulation," at least in the absence of any evidence that plaintiff subsequently failed to exercise such visitation. We recognize that there may be circumstances of which we are unaware which led the trial court to this conclusion. The trial court should, in connection with the remand proceedings, reconsider this award of counsel fees.

So much of the trial court's order as directed the parties to divide equally the costs of bringing the marital residence into code compliance is reversed, as is the award of counsel fees. The matter is remanded to the trial court for further proceedings. We do not retain jurisdiction.

Reversed and remanded.

 

Defendant's motion sought additional forms of relief, and the trial court's order under appeal dealt with those issues as well. Plaintiff's appeal, however, is confined to two specific areas and we thus limit our discussion to those issues.

(continued)

(continued)

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A-5572-05T5

July 12, 2007