LINDA J. MACK v. Z. LANCE SAMAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0951-04T50951-04T5

LINDA J. MACK,

Plaintiff-Respondent

v.

Z. LANCE SAMAY,

Defendant-Appellant.

___________________________________________________

 

Submitted September 19, 2005 - Decided

Before Judges Alley and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-05-96C.

Frederick J. Sikora, attorney for appellant.

Fox Rothschild, attorneys for respondent (Mark Z. Segal, of counsel; Mr. Segal and Susan Nelson, on the brief).

PER CURIAM

By way of this appeal, we consider and conclude that Judge Laura M. LeWinn properly determined that defendant Z. Lance Samay's failure to urge the scheduling of a plenary hearing -- for over eleven years after the right to a plenary hearing was initially recognized and ordered by the trial court -- warranted a finding that his post-judgment matrimonial claims were barred by the doctrine of laches.

The parties, both of whom are attorneys, were married on April 15, 1965. Four children were born of their union -- Scott (born on November 12, 1965); Christian (February 4, 1969); Heather (May 27, 1971); and Eric (September 28, 1972). The parties separated on or about February 3, 1979, and a judgment of divorce, which incorporated the parties' March 16, 1981 property settlement agreement (PSA), was entered on March 20, 1981.

At the time of their divorce, the parties owned a home in Mountain Lakes (the former marital home) encumbered by a first mortgage held by City Federal Savings and Loan Association (City Federal), and a lien held by the United States Small Business Administration (SBA). The PSA contains the parties' agreement that defendant would convey to plaintiff all his "right, title, and interest" in the former marital home. Defendant also agreed to make the monthly mortgage payments to City Federal until plaintiff's gross annual earnings exceeded $20,000, and plaintiff agreed that once her earnings exceeded that amount she would pay one-half of the City Federal mortgage payments, while defendant would pay the other half.

The PSA expresses the parties' intention that plaintiff would thereafter be "the sole owner" of the former marital home, and the record reflects that defendant conveyed, by deed, his interest in the former marital home to plaintiff sometime in 1984. However, the PSA also indicated that until emancipation of all the children, defendant would have a right to "the beneficial use" of the former marital home. Plaintiff agreed in Article IV, Paragraph 1D of the PSA that "in the event that she alienates her title to the [former marital home] . . ., during such time as any of the [c]hildren remain unemancipated, she shall undertake any and all reasonable measures necessary to secure, at her own expense, comparable living quarters for the [c]hildren within the State of New Jersey in a location reasonably convenient to [defendant's] residence or place of business so as to enable him to periodically assume the exclusive custody of the [c]hildren in the manner" prescribed elsewhere in the PSA.

Defendant's securing of the right to the beneficial use of the former marital home was important because the parties consented to share joint custody in an unusual, but not unique, manner. That is, they agreed that in order to best avoid disruptions in the childrens' home life, plaintiff and defendant would take turns residing in the former marital home for alternating two-week periods. Notwithstanding defendant's possession of this contractual right, Article IV, Paragraph 1D of the PSA (quoted above) clearly contemplated that this right of occupancy would evaporate once plaintiff, at her sole discretion, conveyed the former marital home.

On January 4, 1993, at a time when the youngest of the four children was over the age of twenty, plaintiff wrote to defendant, advising she had contracted to sell the former marital home and that closing was imminent. Two days later, defendant sought and obtained the entry of an order to show cause that temporarily restrained the transfer of title pending resolution of defendant's claim that plaintiff was obligated to him "for child support, college expenses, mortgage payments, home improvements and direct loans that defendant had made to plaintiff in excess of $450,000." Two days later, plaintiff moved for a dissolution of the temporary restraints and also asserted that defendant was indebted to her.

On January 19, 1993, the judge entered an order that dissolved the temporary restraints, but required that $75,000 of the net proceeds from the sale of the former marital home be placed in an interest-bearing escrow account pending resolution of the parties' competing monetary claims. The January 19, 1993 order contemplated that a plenary hearing would occur in April 1993, and also scheduled a conference for April 5, 1993.

The April 5, 1993 conference did not occur, but eventually a case management conference was conducted by another judge on May 27, 1994. At that time, the judge newly-assigned to the matter directed the conducting of discovery.

On November 14, 1995, the Family Part presiding judge sua sponte transferred venue of the matter to Mercer County. Other than the filing of a substitution of attorney by defendant's new counsel on November 5, 1997, it appears that nothing of substance occurred from the time some discovery was exchanged shortly after the May 27, 1994 conference until a settlement conference on June 21, 2000, approximately six years later. According to defendant, the June 21, 2000 conference concluded with the onus being placed on plaintiff to come forward with a settlement proposal. Apparently that never occurred.

Instead, on April 14, 2004 -- four years after the last settlement conference, nine years after the change of venue, and more than eleven years after defendant's post-judgment claims were asserted -- plaintiff moved for the release of the escrowed funds. This motion was adjourned from its original return date of May 21, 2004 to July 23, 2004. On July 14, 2004, defendant filed a cross-motion seeking the completion of discovery and the scheduling of the plenary hearing referred to in the January 19, 1993 order.

Judge LeWinn entered an order on September 10, 2004 that granted plaintiff's motion for a turnover to her of the escrowed funds, and denied defendant's motion in its entirety for reasons expressed in both a written tentative decision and a later written supplemental decision. Judge LeWinn held that defendant had unreasonably delayed in pursuing the claim and that the doctrine of laches required its dismissal.

In opposing plaintiff's motion, and in support of his own, defendant had attempted to explain his delay by claiming that during the many years of inactivity he "was content to leave any scheduling to the court," and that he did not actively pursue his claim to the escrowed funds because he "was not anxious to renew hostilities with plaintiff, in large part, because she, I and our four children had then achieved a small but vital measure of familial tranquility." This contention might have warranted some consideration if the children were of tender years or unemancipated. However, we observe that at the time defendant expressed this concern, the parties' four children were 38, 35, 33, and 31 years of age. Thus, we agree that Judge LeWinn was properly dismissive of this argument.

Judge LeWinn summarized her disposition of the motions in the following way:

At oral argument, defendant (through counsel) acknowledged this matter had "fallen through the cracks." One primary reason he advanced for not pursuing his position in a more timely and aggressive manner was that he wanted to maintain "family tranquility" for the sake of the children. However, this did not prevent defendant from vigorously confronting plaintiff on her request for the release of the funds in question, when he filed his 17-page, 40-paragraph certification on January 11, 1993. The contents of that certification (which this court has reviewed at length) appear inconsistent, at best, with his professed desire to maintain family peace for the sake of the children.

It is, frankly, incomprehensible to the court why defendant did not timely pursue and follow up on his claims [that were initially asserted] more than 11 years ago.

Plaintiff seeks enforcement of an express provision in the parties' settlement agreement incorporated into their divorce judgment, whereby she was expressly awarded sole legal and beneficial ownership of the marital home . . . . From defendant's prior court papers, it appears he seeks enforcement of other provisions that are not as precisely drawn as the express provision plaintiff seeks to enforce. In other words, his claims allege plaintiff's failure to take certain steps and to make certain financial contributions that their settle-ment agreement left to future events such as her earning capacity.

In short, plaintiff is clearly entitled to the relief sought by the express language of the parties' agreement. Defendant ini-tially opposed this relief by raising claims that gave rise to the need for discovery and a plenary hearing. Since he created that need, it was his obligation to pursue it. This he failed to do, thereby underscoring this court's conclusion that the equitable doctrine of laches controls the result here. His delay in pursuing his "counter-offensive" to plaintiff's relief request is inexcusable. Moreover, plaintiff has been prejudiced both by her inability to receive[] funds to which she is entitled, as well as by the prospect of having to recreate years of financial proofs were defendant to prevail on his cross-motion at this late date.

We affirm the order of September 10, 2004 substantially for the reasons set forth by Judge LeWinn, adding only the following.

In seeking reversal, defendant argues that the doctrine of laches was inapplicable because it was insufficiently demonstrated that plaintiff would be prejudiced if defendant's claims proceeded to a decision on their merits.

It is true that the doctrine of laches is often described as justifying closing the courtroom doors on a claimant who has delayed "for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party." Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 140 (2001) (emphasis added) (citing West Jersey Title & Guar. Co. v. Industrial Trust Co., 27 N.J. 144, 153 (1958)). However, because the underlying rationale for the doctrine of laches is "the discouragement of stale claims," Gladden v. Pub. Employees' Retirement Sys., 171 N.J. Super. 363, 371 (App. Div. 1979), it has been recognized that there are occasions when an exorbitant passage of time alone is sufficient to require its application. As explained by our Supreme Court in Lavin v. Hackensack Bd. of Educ., 90 N.J. 145, 152-53 (1982), the argument that "the mere lapse of time is insufficient" to invoke laches is an "overstatement of principle," and that there are circumstances in which the "length of the delay alone or in conjunction with other elements may result in laches." See also Giacobbi v. Anselmi, 18 N.J. Super. 600, 620 (Ch. Div. 1952) (Goldmann, J.). We conclude that the circumstances permitted Judge LeWinn's application of laches even if we were to ignore evidence in the record which suggested that the delay has generated prejudice either through changes in position during the period of delay or by hampering the court's ability to resolve these disputes with a sufficient degree of accuracy in light of dimming memories.

The length of the delay here, considering the context, was extraordinary. Indeed, the circumstances outlined in our discussion of the case's procedural history suggest that defendant had delayed in seeking relief by the time he applied, in 1993, to enjoin plaintiff's conveyance of the former marital home. That is, defendant claimed at that time that plaintiff was indebted to him in the amount of $450,000; we assume that this alleged indebtedness did not accrue overnight but rather over a period of years. Superimposing upon that pre-1993 delay defendant's subsequent failure to actively seek the scheduling of the plenary hearing for an additional eleven years, during which the escrowed funds remained out of plaintiff's reach, presents a compelling basis for dismissing that claim solely because of the inordinate passage of time.

Moreover, we conclude that the application of the doctrine of laches in this manner is particularly appropriate when considering that this unreasonable delay occurred in the Family Part, where judicial resources are scarce and must be jealously guarded and carefully managed to avoid unnecessary waste. See, e.g., Galligan v. Westfield Centre Service, Inc., 82 N.J. 188, 192 (1980) ("Scarce judicial resources are therefore best conserved for litigation timely commenced."). In considering the impact of defendant's delay, we emphasize that laches is "an equitable principle aimed to promote justice." Lavin, supra, 90 N.J. at 152 n.1. It would be contrary to the efficient administration of justice in the Family Part, and particularly unjust to other Family Part litigants -- who would be required to further remain in queue, awaiting the opportunity for a timely resolution of their more expeditiously pursued controversies -- if this stale, essentially abandoned claim was permitted to consume the further time and energies of the Family Part. See Fischer v. Fischer, 375 N.J. Super. 278, 290-91 (App. Div.) ("Our already congested Family Part calendars give rise to a considerable demand by litigants for access to the scarce judicial resources available. . . . [A]ny case that obtains a disproportionate share of the court's time . . . reduces the opportunities of other litigants to obtain their fair share of the court's attention."), certif. denied, 183 N.J. 590 (2005); Kozak v. Kozak, 280 N.J. Super. 272, 278 (Ch. Div. 1994) ("Judicial time and energies are scarce judicial resources, especially in the family courts. We cannot permit frivolous matters, sparked by a personal vendetta, to consume the attention and resources to the detriment of deserving litigants who wait for their legitimate motions to be heard.").

 
Affirmed.

The PSA indicated that plaintiff was then attending but had not yet graduated from law school.

Defendant also agreed that he would "timely pay any installments due on account of any obligations secured by any other liens affecting" the former marital home; we assume this refers to the SBA lien.

Emancipation was defined by the PSA as occurring upon a child's reaching the age of eighteen years or the child's completion of a four-year college education, whichever occurred last.

(continued)

(continued)

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A-0951-04T5

September 29, 2005