GAIL BEISSER v. JEFFREY BEISSER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2319-04T1

GAIL BEISSER,

Plaintiff-Respondent,

v.

JEFFREY BEISSER,

Defendant-Appellant.

______________________________

 

Submitted March 14, 2006 - Decided April 5, 2006

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1534-98.

Chamlin, Rosen, Uliano & Witherington, attorneys for appellant (Matthew A. Smuro, on the brief).

Jacobowitz, Defino, Latimer, Fradkin, Comer & O'Toole, attorneys for respondent (Marybeth Hershkowitz, of counsel and on the brief).

PER CURIAM

This is a matrimonial case. Defendant appeals from a trial court order requiring that he buy out plaintiff's interest in their former marital residence for $331,000 or that he move out of the house by a date certain to permit the house to be sold to third parties. We affirm.

I

These are the relevant facts. The parties were married in 1975 and divorced in 2000. On April 14, 2000, prior to entry of the final divorce judgment, the parties signed an agreement which provided that plaintiff, Gail Beisser, would move out of the marital residence, and if defendant, Jeffrey Beisser, chose to remain in the house he would "pay all expenses associated with running the house and one half the house taxes." The agreement also provided that if the court ordered the house to be sold, Gail would "receive no less than half of the appraisal obtained" (emphasis added) or $94,050, and that if Gail was required to "invest more money in the house," she would be reimbursed at closing. The agreement also provided:

If it should take more than 6 months to sell the house, Jeffrey B. will obtain his own financing or pay 10% for the use of the $94,050 and whatever additional amount I may have contributed.

The parties entered into a property settlement agreement (PSA) dated October 31, 2000, which was incorporated into the Final Judgment of Divorce. Paragraph 6 of the PSA provided for the sale of the marital residence. The parties were to list the house with a multiple listing agent within eighty days and "[b]oth parties will cooperate with the sale." They also agreed to "abide by the April 14, 2000 agreement." Paragraph 6 further provided that "[a]fter usual costs of sale . . . the parties will divide the net proceeds equally." Gail was also entitled to receive $49,828.99 from Jeffrey's share of the sale proceeds to reimburse her for amounts she had spent in connection with another of their properties. In the same section, the parties agreed that "[i]f the husband buys the wife out of the marital home he will be required at closing to pay $99,500 . . . for the property plus the items in this paragraph for a total $149,328.00."

There is no dispute that the house was not sold. Jeffrey remained in the house without paying rent and without paying the taxes. As a result, Gail was required to pay these amounts although she was no longer living in the house. The parties disagree as to why the house was not sold, but the record contains correspondence dated July 12, 2002 from Jeffrey to Gail asking her to let him continue to live in the house due to his health and financial problems:

With regard to your recent letter of 7/5/02, I appreciate your desire to sell our home at this time, however, this would pose a distinct hardship for me as well as for [our son]. . . . Because I was incapacitated for so long with spinal and hip problems, I have not been able to maintain a stable financial situation. . . . I have no other place available for me to move to.

In addition to begging Gail for more time, Jeffrey also assured her that she would benefit from the house's appreciation in value:

The value of the home continues to appreciate - probably more so than any reasonable alternative investment of the funds you would gain from the sale.

On October 14, 2004, Gail filed a motion to evict Jeffrey from the house within thirty days, to allow her to act as attorney-in-fact to sign a contract of sale if Jeffrey had not signed by the return date of the motion, permitting her to consummate the sale, and "[r]equiring money owed to the plaintiff by the defendant to be paid out of his share at closing." According to her application, buyers had signed a contract of sale for $440,000, but Jeffrey would not cooperate in the sale. Acting pro se, Jeffrey filed a cross-motion seeking to buy Gail's share of the house. He also contended that he should be able to buy out her interest in the house for the price stated in the 2000 PSA. At a hearing on the motion on November 12, 2004, Judge O'Brien rejected that contention, but gave him until December 1, 2004 to obtain a $331,000 mortgage commitment. That sum was calculated based on one-half of the $440,000 sale price, plus $111,000 to reimburse Gail for the $49,828.89 Jeffrey owed her under the PSA and additional sums she had paid for real estate taxes and other expenses of the house, plus interest. If he failed to obtain the mortgage, he would be evicted.

On November 22, 2004, Jeffrey, now represented by counsel, filed an order to show cause, seeking to stay the scheduled December 3 eviction and seeking a plenary hearing to determine the amounts Gail was to be paid from the sale proceeds. The application sought to raise "the following issues:" Jeffrey sought credit for his repairs and maintenance to the house; he claimed the April 2000 agreement was signed under duress; he claimed that the $440,000 sale price was too low; he wanted a proof hearing on the "$110,000 awarded to the plaintiff;" he wanted plaintiff to be assessed half the property taxes on the marital home due to "changes in Mr. Beisser's circumstances, predominantly . . . his health;" and he claimed that he had been unable to adequately prepare for the prior hearing.

At the oral argument, Judge Kilgallen rejected defendant's attempt in essence to move for reconsideration of her earlier decision. She found he was

trying to re-raise issues such as I was coerced or it was a contract of adhesion, even though he didn't use those terms, he argued the very same thing when he was before [the court] on . . . November the 12th. There is absolutely nothing new that he is raising now that he didn't raise then other than his request for more time.

With plaintiff's consent, she gave defendant an extension of time until January 7, 2005 to obtain a mortgage commitment.

II

On this appeal, defendant raises the following arguments:

POINT I: THE COURT BELOW IMPROPERLY INTERPRETED THE PROVISIONS CONTAINED IN THE PARTIES' PROPERTY SETTLEMENT AGREEMENT DATED OCTOBER 31, 2000 SO AS TO ERRONEOUSLY CONCLUDE THAT THE PLAINTIFF'S INTEREST IN THE FORMER MARITAL HOME TOTALED THE SUM OF $331,000.00.

POINT II: THE LOWER COURT ERRED IN FAILING TO PROVIDE THE DEFENDANT AN OPPORTUNITY TO REVIEW DOCUMENTATION SUPPORTING THE PLAINTIFF'S REQUEST FOR REIMBURSEMENT.

POINT III: THE LOWER COURT ERRED IN FAILING TO CONSIDER THE DEFENDANT'S INDEPENDENT CONTRIBUTIONS TO THE FORMER MARITAL HOME IN ALLOCATING EACH [PARTY'S] INTEREST IN THE PROPERTY THUS PROVIDING THE PLAINTIFF A FINANCIAL WINDFALL.

Having reviewed the record, we conclude that defendant's contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the comments set forth below. We affirm substantially for the reasons stated in Judge Kilgallen's oral opinions of November 12, 2004 and December 2, 2004 and her supplemental written opinion dated June 17, 2005, all of which are amply supported by the record. R. 2:11-3(e)(1)(A); Cesare v. Cesare, 154 N.J. 394, 412 (1998).

The gist of defendant's first point is that plaintiff was only entitled to one-half of what the house was worth in 2000, despite the four-year delay in selling the house during which time its value more than doubled. The short answer is that defendant abandoned that issue. At the oral argument on December 2, 2004, defendant's counsel raised two issues. One was the plaintiff's right to ten percent interest on the credits she claimed, and the other was defendant's asserted entitlement to credit for "sweat equity." The trial judge made clear to the parties that she construed their agreement as requiring "that the house be sold and that the proceeds be divided equally." Defendant's counsel replied. "I agree." Further, even if defendant had not abandoned the issue, we would agree with the trial judge's construction of the agreement.

We find no merit in defendant's contention that he was denied an opportunity to "review documentation" supporting plaintiff's claim for approximately $111,000 in credits. Plaintiff gave defendant ample written notice of her claim, including a detailed list of amounts she spent, listing the checks by number. At the November 12, 2004 hearing defendant did not ask for an opportunity to review copies of those checks. In his subsequent application to the court, prior to the December 2 hearing, defendant did request a hearing on the issue of credits and requested the back-up documentation. In opposition, plaintiff certified that she had the voluminous copies of her canceled checks and would bring them to court on the hearing date for defendant's review. We infer that either she did so and defendant's counsel was satisfied with her proofs, or that defendant decided to waive that issue, because at the December 2, 2004 hearing, defendant's counsel did not question the amounts plaintiff claimed to have spent. Rather, in response to Judge Kilgallen's question as whether plaintiff was entitled to the credits she claimed, he only questioned the fairness of the addendum to the property settlement agreement allowing plaintiff ten percent interest on her expenditures, and "whether or not Mr. Beisser's sweat equity that he put into the property . . . has been taken into account and whether he should receive a credit for that." We conclude that defendant waived his request for a hearing on the accuracy of plaintiff's list of her expenditures.

We are likewise unconvinced by defendant's claim to reimbursement for the value of the "sweat equity" he alleges he put into the house while he lived there. The parties' agreement has no provision for such reimbursement, probably because the agreement contemplated that the house would be sold within a few months. Defendant remained in the house for four years. During that time he paid no rent for his use and occupancy, and plaintiff was forced to pay the carrying costs on the house. Further, at least $25,000 worth of defendant's claimed "improvements" consisted of routine upkeep such as mowing the lawn, cleaning the gutters, and planting a yearly vegetable garden. And he provided no expert report or other legally competent evidence to support his claim that his improvements increased the value of the house. Moreover, according to defendant the house was worth $480,000, but he was permitted to buy out plaintiff's interest based on a price of $440,000. Hence, he obtained the benefit of any additional equity in the property.

 
Affirmed.

(continued)

(continued)

9

A-2319-04T1

April 5, 2006