WILLIAM K. FOERSTER v. SUSANN S. FOERSTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0447-08T20447-08T2

WILLIAM K. FOERSTER,

Plaintiff-Appellant,

v.

SUSANN S. FOERSTER,

Defendant-Respondent.

_______________________________________

 

Submitted January 19, 2010 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-538-05.

Neal H. Flaster, L.L.C., attorneys for appellant (Neal H. Flaster, Scott J. Goldstein and Susan M. Clapp, on the brief).

Celli, Schlossberg & Friedland, L.L.C., attorneys for respondent (Holly M. Friedland, on the brief).

PER CURIAM

Plaintiff William K. Foerster appeals from two orders entered by the Family Part on August 7, 2008, which granted defendant Susann S. Foerster's motion for the release of certain monies held in escrow and denied plaintiff's motion for post-judgment discovery and other relief. We affirm.

The following facts and procedural history are pertinent to our decision. The parties' marriage was dissolved by a judgment of divorce entered dated January 29, 2007, which incorporated a property settlement agreement (PSA) that resolved certain contested issues, including equitable distribution of the marital assets. The PSA provided in pertinent part that plaintiff would pay defendant approximately $39,500 within thirty days of the entry of the judgment, with the final amount to be determined at a "closing" at which the parties would resolve the credits due to plaintiff as the result of the buyout of defendant's interest in certain property in Pennsylvania.

The PSA also stated that the parties certified that they had disclosed all of their respective bank accounts and balances on their Case Information Statements or in their discovery responses. The PSA further stated that, "[b]oth parties are entitled to engage in post judgment discovery to determine if any additional accounts exist at any banking institution which were not disclosed in discovery and which were subject to equitable distribution."

Thereafter, plaintiff determined that the amount due to defendant under the PSA was $38,130.21. However, the "closing" did not take place and plaintiff did not pay defendant the monies due to her. On March 28, 2007, plaintiff served subpoenas on certain banks where defendant maintained bank accounts.

On May 3, 2007, defendant filed a motion to enforce litigant's rights, seeking to compel plaintiff to pay her $38,130.21 pursuant to the PSA along with attorney's fees and costs. Plaintiff filed opposition to the motion. Plaintiff also filed a cross-motion for relief from the judgment and a credit of between $12,000 and $24,000, which plaintiff claimed was the monies in defendant's undisclosed bank accounts that were subject to equitable distribution. The trial court entered orders dated June 8, 2007, and filed on June 12, 2007, which granted defendant's motion and denied plaintiff's cross-motion.

Plaintiff appealed. Defendant thereafter filed a motion in the trial court to enforce the June 8, 2007 order, and plaintiff filed a motion for a stay of the order pending appeal and to set the terms of a supersedeas bond. The trial court entered orders on August 2, 2007, denying defendant's motion and granting plaintiff's motion. Plaintiff was ordered to make a cash deposit in the amount of $43,235.84, to cover payment of the judgment, the counsel fees that had been awarded, and interest. Plaintiff deposited that sum with the clerk of the court in accordance with the court's order.

In his earlier appeal, plaintiff argued, among other things, that the trial court erred by failing to consider his supplemental certification, which purportedly showed that defendant failed to disclose certain bank accounts that were subject to equitable distribution. We rejected plaintiff's arguments and affirmed the trial court's orders. Foerster v. Foerster, No. A-5725-06 (App. Div. May 21, 2008) (slip op. at 22).

In our opinion, we stated that defendant had disclosed the bank accounts at issue in discovery, Case Information Statements filed in 2005 and 2006, and at her deposition. Id. at 11. We also stated that, in his supplemental certification, plaintiff failed to "provide any support for a conclusion that the funds in those bank accounts were subject to equitable distribution, or that the funds were improperly spent or taken by defendant." Id. at 11-12. We concluded that plaintiff's supplemental certification did not provide any basis for relief from the judgment pursuant to Rule 4:50-1(c), since it did not establish that defendant had perpetrated a fraud upon plaintiff by failing to disclose the bank accounts during discovery. Id. at 12.

After we issued our decision, counsel for defendant wrote to plaintiff's attorney and demanded the monies due to defendant. When plaintiff failed to pay that amount, defendant filed a motion in the trial court seeking an order immediately releasing $41,149.45 from the deposited funds to satisfy plaintiff's outstanding obligations. Plaintiff, in turn, filed a cross-motion seeking, among other relief, a ninety-day stay of the release of the deposited funds to permit him to complete post judgment discovery.

On July 18, 2008, the trial court filed a statement of reasons in which it concluded that defendant's motion should be granted and plaintiff's motion denied. The court noted that defendant had previously sought relief from his obligation under the PSA but the court had denied that motion and its decision had been affirmed on appeal.

The court observed that, while the "carve out" provision of the PSA allowed the parties to engage in post judgment discovery, plaintiff had availed himself of the opportunity for discovery and failed to establish any basis to be relieved of his obligation to pay the monies due to defendant. The court entered orders on August 7, 2008, memorializing its decision. This appeal followed.

Plaintiff raised the following arguments for our consideration:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO GRANT PLAINTIFF'S REQUEST FOR DISCOVERY AS TO DEFENDANT'S BANK ACCOUNTS, THE PARTIES CONTEMPLATED IN THEIR PROPERTY SETTLEMENT AGREEMENT

POINT II

THE TRIAL COURT COMMITTED CLEAR ERROR IN CONVERTING ITS PRIOR "WITHOUT PREJUDICE" DENIAL OF PLAINTIFF'S APPLICATION FOR RELIEF WHICH WAS THE SUBJECT MATTER OF THE JUNE 8, 2007 ORDER INTO A "WITH PREJUDICE" DISMISSAL IN THE ORDER ENTERED ON AUGUST 7, 2008

POINT III

THE TRIAL COURT MISINTERPRETED THE APPELLATE DIVISION DECISION OF MAY 21, 2008 TO CONCLUDE THAT THE OPINION REQUIRED IT TO AWARD PAYMENT TO DEFENDANT UNDER PARAGRAPH 6([b]) OF THE PARTIES' PROPERTY SETTLEMENT AGREEMENT AND TO DENY PLAINTIFF'S APPLICATION TO STAY RELEASE OF THE FUNDS IN ISSUE PENDING DISCOVERY PURSUANT TO PARAGRAPH 6(a) OF THE PROPERTY SETTLEMENT AGREEMENT

We have thoroughly reviewed the record in light of these contentions and conclude that they are entirely without merit. We accordingly affirm the trial court's orders of August 7, 2008, substantially for the reasons provided by the trial court in its statement of reasons dated July 18, 2008. R. 2:11-3(e)(A) and (E). We add the following brief comments.

We are satisfied that the trial court did not abuse its discretion by ordering plaintiff to pay the amounts due to defendant under the terms of the PSA and the court's order dated June 8, 2007. We reject plaintiff's contention that payment should be further delayed to allow him to engage in additional discovery regarding bank accounts that defendant purportedly failed to disclosure before the matrimonial action was settled.

In our judgment, the record supports the trial court's finding that plaintiff had already availed himself of his opportunity to engage in post judgment discovery by seeking information from defendant's banks regarding her accounts. Thus, the trial court did not erroneously deprive plaintiff of his opportunity for discovery and there was no basis to further delay enforcement of plaintiff's obligation to pay defendant the monies due to her under the PSA.

Affirmed.

 

(continued)

(continued)

7

A-0447-08T2

February 10, 2010