DENISE SYDLAR v. GEORGE SYDLAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6891-03T56891-03T5

DENISE SYDLAR,

Plaintiff-Respondent,

v.

GEORGE SYDLAR,

Defendant-Appellant.

 

Submitted February 7, 2006 - Decided March 8, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-45201-92.

George Sydlar, appellant pro se.

Denise Sydlar, respondent pro se.

PER CURIAM

Defendant George Sydlar appeals from three separate orders of the Chancery Division, Family Part in this post-judgment matrimonial matter. The June 11, 2004 order denied defendant's application for a change of venue. The June 16, 2004 order granted plaintiff Denise Sydlar's motion for an order in aid of litigant's rights relating to the sale of the marital residence. The August 25, 2004 order denied defendant's motion for reconsideration. We affirm.

The parties were divorced in 1993. At the time of the divorce, they owned a marital residence and an adjoining lot. The Judgment of Divorce (JOD) included a provision pursuant to which the residence and the adjoining lot would be sold when the youngest child of the parties turned eighteen and graduated from high school. The JOD further provided that the proceeds from the sale would be shared by the parties after the payment of certain listed debts and two then-existing mortgages. It is undisputed that by order dated September 27, 1996, the youngest child of the parties was emancipated. The record reveals that thereafter plaintiff attempted to arrange for the sale of the marital residence and the adjoining lot but that defendant would not cooperate.

In April 2004, plaintiff moved for an order in aid of litigant's rights, seeking to compel defendant to cooperate in the sale of the residence and the adjoining lot. As a part of that application, she certified that the property was then encumbered by a $41,300 mortgage that she had been forced to secure in order to prevent the loss of the property to foreclosure. She requested that the mortgage be paid prior to the division of the proceeds between the parties. Defendant cross-moved, seeking an order changing venue of the proceedings to another county. By order dated June 11, 2004, the judge denied defendant's cross-motion seeking a change of venue. By a separate order dated June 16, 2004, the judge granted plaintiff's motion in aid of litigant's rights, appointing her attorney to act on defendant's behalf for purposes of effecting the sale of the property. By order dated August 25, 2004, the judge denied defendant's motion for reconsideration.

On appeal, defendant first argues that he was denied due process. As explained in his brief, this argument is addressed in part to the judge's denial of the motion for a change of venue and in part to the judge's rejection of assertions that he made respecting the propriety of the relief requested by plaintiff.

Our review of the due process arguments compels us to reject them. First, the record reveals no basis for the motion for a change of venue as it is defined in our rules. See R. 4:3-2, -3. Defendant requested that the matter be transferred to another county based on his belief that he would not be treated fairly in the county where the matter was then being heard. See R. 4:3-3(a)(2). Nothing in the record, however, suggests that there was any "substantial doubt that a fair and impartial" hearing, see ibid., would be afforded to him. In light of the fact that the burden is on the party moving for a transfer of venue to demonstrate that he or she meets this test, see Pressler, Current N.J. Court Rules, comment on R. 4:3-3 (2006), defendant's failure to offer any support for this assertion required the motion judge to deny it. See Diodato v. Camden County Park Comm'n., 136 N.J. Super. 324, 328 (App. Div. 1975).

Second, defendant's assertion on appeal that the judge's rejection of his arguments about the merits of plaintiff's motion amounted to a denial of due process is without merit. In their certifications and during oral argument, the parties presented different recollections about who had not cooperated in the efforts to sell the residence. In addition, during the proceedings defendant disputed whether the currently existing mortgage had been necessitated by foreclosure proceedings and argued that he should not be required to participate in paying it off prior to sharing in the proceeds of the eventual sale of the property. In doing so, defendant accused plaintiff and her attorney of fraud, deceit, tampering with public records and false swearing. Defendant also demanded that plaintiff's lawyer be disbarred. On appeal, defendant argues that he was denied due process because the judge granted plaintiff's motion notwithstanding these arguments.

We first note that the judge's decision to grant plaintiff's motion rests entirely on his factual findings. It is based on his findings that plaintiff had attempted to market the property, that she had been forced to secure a mortgage to avoid foreclosure and that defendant had been uncooperative. The judge's rejection of defendant's contrary assertions and his accusations also rests on his factual findings. The scope of our review of a trial court's factual findings is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact-finding." Id. at 413. Based on our independent review of the record, we conclude that the judge's factual findings are supported by substantial credible evidence and we will not disturb them.

Finally, defendant argues that the judge abused his discretion in entering the orders now on appeal. More particularly, he first asserts that "[w]hen evidence is presented to the court, it should be considered and then memorialized in the form of the court's record in the form of a transcript." Our rules do not require that the evidence be recited or that all of the specific details of the positions of the parties be set forth in an oral opinion. Our review of the record reveals that the judge sufficiently complied with the applicable rules relating to his findings and conclusions. He gave his reasons for denying the cross-motion to transfer venue during the oral argument on the motion and cross-motion. He included a written notation on the order granting plaintiff's motion expressing his reasons for that decision. His order denying the motion for reconsideration included language explaining his reasons.

We also reject defendant's more general argument that the judge abused his discretion in finding that plaintiff was entitled to the relief that she requested and in appointing her attorney to execute documents on behalf of defendant. The record contains sufficient credible evidence to support the judge's findings that defendant had failed or refused to cooperate in the sale of the residence, that plaintiff had been forced to secure a mortgage on the residence in order to save the property from foreclosure, that the original JOD required that the mortgages be paid prior to the distribution of the proceeds, and that, in the absence of the appointment of the attorney to act on defendant's behalf for the purpose of a sale, the directives in the JOD would continue to be thwarted by defendant's recalcitrance.

Finally, although defendant has not offered any arguments on appeal specifically directed to the judge's denial of the motion for reconsideration, we note that nothing in the record suggests that defendant's motion met the applicable test for that relief, see Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996), as a result of which we discern no ground on which to interfere with it.

Affirmed.

 

These demands and accusations related in part to defendant's assertions about outstanding child support arrears and his pension rights. Because defendant did not include in his cross-motion any application for relief that related to these issues, we discern no basis on which to address them on appeal. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973); Brown v. Township of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.), certif. denied, 162 N.J. 131 (1999).

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A-6891-03T5

March 8, 2006