DONALD C. SACHAU v. BARBARA SACHAU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4766-07T14766-07T1

DONALD C. SACHAU,

Plaintiff-Respondent/Cross-

Appellant,

v.

BARBARA SACHAU,

Defendant-Appellant/Cross-

Respondent.

________________________________

Argued March 15, 2010 - Decided May 24, 2010

Before Judges Yannotti and Chambers.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-17963-75.

Jamie N. Berger argued the cause for appellant/cross-respondent (Einhorn, Harris, Ascher, Barbarito & Frost, P.C., attorneys; Mr. Berger, on the brief).

Mark S. Anderson argued the cause for respondent/cross-appellant (Woolson Sutphen Anderson, attorneys; Mr. Anderson, on the brief).

PER CURIAM

In this cross-appeal, plaintiff Donald C. Sachau contends that the distribution of the proceeds from the sale of the marital home as set forth in the trial court's order of May 29, 2008, is contrary to the terms of the parties' final Judgment of Divorce and should be reversed. We affirm because the distribution of the proceeds of the marital home set forth in the trial court's order conforms with our earlier remand instructions.

Plaintiff and defendant Barbara Sachau were married in 1964 and thereafter divorced. Under the terms of their Judgment of Divorce dated February 21, 1979, defendant and the two children of the marriage were entitled to remain in the marital home until the youngest child reached the age of eighteen and graduated from college. At that time, the marital home was to be sold, and the net proceeds, after certain adjustments were made, were to be divided equally between the parties. The language in the Judgment of Divorce setting forth these terms is as follows:

The defendant and the two children of the marriage shall be entitled to reside at the marital home . . . until the youngest child shall have reached the age of 18 and graduated high school. At such time as the youngest child shall have attained the age of 18 and graduated from high school, the house shall be appraised and listed for sale by both parties within 30 days. If the parties cannot agree upon an appraiser, the Court, upon application, shall appoint such an appraiser. The cost of an appraiser shall be borne equally by the parties.

. . . .

Upon the sale of the marital premises, the proceeds shall be allocated in the following manner: (i) the defendant shall be paid $10,000.00; (ii) the plaintiff shall be paid $15,000.00; (iii) the remaining balance shall be divided equally.

On or about November 28, 1984, the youngest child reached the age of eighteen and graduated high school so that, under the terms of the Judgment of Divorce, the marital house was to be sold. However, this did not happen. Defendant remained in the home, and in September 1990 she began to make irregular payments to plaintiff. In October 2004, she stopped making those payments.

Plaintiff became unable to support himself on his social security payments and became partially dependent on the financial help of friends. He asked defendant for the balance owed him on the house. Not receiving any satisfactory response, he finally moved in March 2006, to enforce his interest in the house. He sought to have the marital home sold and the net proceeds divided in accordance with the terms of the Judgment of Divorce or, in the alternative, he sought payment from defendant of the sum of $250,000. His motion papers stated that defendant had paid him $79,315 toward his share of the marital home.

The trial judge granted plaintiff's motion, and in accordance with the provisions in the Judgment of Divorce, he entered an order dated April 12, 2006, ordering that the house be sold and that the defendant be given credit for the $79,315 she had paid to plaintiff. Defendant was uncooperative in carrying out the terms of this order. On June 12, 2006, the trial judge signed an order directing defendant to sign a listing agreement so that the house could be sold. The trial court entered an order on August 21, 2007, allowing plaintiff "to act as Attorney-in-fact to sell the former marital home." By order dated September 4, 2007, plaintiff was allowed to sign as attorney-in-fact for the parties the contract for sale of the marital home.

By order dated September 21, 2007, defendant's motion for leave to appeal was granted, and, pending appeal, we stayed the order appointing plaintiff as attorney-in-fact to sign the contract of sale. By order dated October 12, 2007, we stayed, pending appeal, the order approving the contract for sale. By order dated October 25, 2007, we denied the application for vacation of the stay and summary disposition. We further stated in the order that:

We believe, based on what is now before us, that a question exists as to whether the failure of plaintiff to enforce his rights under the judgment of divorce for a substantial period of time, together with the value of payments made by defendant to plaintiff and lack of payment by plaintiff to defendant of support obligations raises a serious question of whether forcing defendant to leave the marital premises at this time is equitable.

We accelerated the appeal and scheduled oral argument.

After considering the appeal, by order dated November 7, 2007, we remanded the case back to the trial court with the following instructions:

We find no post-judgment final order that precludes consideration, pursuant to leave granted, of the issues now before us, because neither party nor any court treated any post-judgment order as final.

As the judgment of divorce provides that the parties shall sell and equally divide the proceeds from sale of the marital premises (after the distribution of the first $25,000) as of the date when the youngest child graduates from high school and turns 18, that date being November 28, 1984, and plaintiff having failed to enforce his rights under the judgment of divorce for approximately 22 years thereafter while payments were made to and accepted by him over a fifteen-year period to buy out plaintiff's interest in the marital premises, while defendant maintained the home and paid all property taxes, the matter is remanded to the Family Part for an evidentiary hearing to determine (1) whether the agreement by the parties to permit defendant to buy out plaintiff's interest included an agreement as to the total amount to be paid by defendant for plaintiff's share of the marital premises, (2) the amount of payments made by defendant to plaintiff for purposes of purchasing the premises (the judge having previously found it to be $79,315 without an evidentiary hearing), (3) in the absence of an agreed price, the value of the premises as of November 28, 1984 (see Pacifico v. Pacifico, 190 N.J. 258, 269 (2007)), one-half of which plus $5000 shall constitute plaintiff's interest in the premises, (4)(a) to void the third-party sale if there is no deficiency in the amount to be paid by defendant or (4)(b) to determine the amount still due from defendant to plaintiff, together with simple interest at the R. 4:42-11 rate due on unpaid principal less $20,000 and all other payments made to date, if there is a deficiency, and (5) in such case to determine whether a compelled sale should be deemed inequitable at this point of time.

Out of an abundance of caution and to avoid any perception of pre-judgment, because the judge previously hearing this matter has already determined some of the facts on a non-evidentiary basis, we order the presiding judge of the Family Part to assign this matter to another trial judge for purposes of disposition.

This order concludes the appeal.

On remand, the case was heard by a different trial judge who conducted a three-day plenary hearing in which both parties testified. At the conclusion of the hearing, the trial judge issued his opinion from the bench, covering all of the points raised in our order of remand. He found that the parties had not reached an agreement on the amount that defendant would need to pay plaintiff in order for her to buy out his interest in the marital home. He determined that the total amount of payments that defendant had made to plaintiff over the years was $79,415. He concluded that the value of the marital home on November 28, 1984, the earliest date the property could have been sold under the Judgment of Divorce, was $120,000.

The trial judge then reviewed the calculations, including the simple interest on the unpaid principal owed plaintiff and also a $20,000 adjustment to accommodate defendant for certain monies she had paid on behalf of the children. After deducting defendant's payments and monies plaintiff owed defendant, the trial judge found that the balance owed plaintiff for his interest in the marital home was $136,191.62, plus interest of $32.33 per diem until the monies were paid. Plaintiff's calculations furnished on appeal indicate that from the proceeds of the sale of the marital home, defendant received the sum of $417,472.64.

Pursuant to our instructions, the trial judge also considered whether sale of the house would be inequitable at this point in time. He determined that it would not. He concluded that laches did not apply here. Defendant always knew that vacating the marital home was a possibility. By "tacit agreement," defendant had remained in the marital home. She had tried to buy out plaintiff's interest in the home but was unable to do so. He noted that she was being credited with all of the payments she made, and concluded that "the passage of time has not caused a change in position to the detriment of Ms. Sachau."

The trial judge also noted plaintiff's need for these monies explaining:

[P]laintiff suffered a stroke in 1996. He is on a regimen of aspirin therapy and he is on three or four other medications. He suffered from prostate cancer which is in remission. He has knee problems and cataracts, as well. He is on a fixed income, also Social Security, and he is seventy-six years old. He testified that he receives support from friends because he does not have money he does not have enough money to live on.

He also took into account the hardship defendant has also encountered, noting that she subsists on social security, suffers from transient ischemic attacks, has cataracts, and needs a knee replacement. She is seventy-two years old.

The trial court found the equities to be relatively equal. While he noted that defendant would be required to leave her marital home, she had notice that this was going to happen, and the sale of the marital home would leave her with a substantial "nest egg" to enable her to obtain housing elsewhere, perhaps a condominium.

Plaintiff now appeals this ruling, contending that the net proceeds from the sale of the marital home should have been divided equally between the parties as contemplated by the Judgment of Divorce, subject to the necessary adjustments. The Appellate Division's remand order required that plaintiff's share of the proceeds of the marital home be based on the value of that home on November 28, 1984, when the Judgment of Divorce contemplated that the house would be sold and the proceeds divided. Under that approach, plaintiff does not share in any appreciation that the marital home enjoyed in the subsequent years. The Appellate Division's remand order did allow him interest on his share which does help compensate for the passage of time. However, plaintiff explains that if he receives the benefit of the appreciation in the house instead of the interest on his share from 1984, he would receive an additional $39,778.07.

Thus, plaintiff does not find any error in the trial court's decision on remand. Rather his complaint is with the provisions in the Appellate Division's remand order of November 7, 2007. In essence, the plaintiff is seeking to relitigate before this court the issues raised in the earlier appeal. We will not revisit these issues already decided by this court, albeit by another panel. Under the law of the case, an issue will not be relitigated before the same court, unless there is "good cause" to do so. Pressler, Current N.J. Court Rules, comment 4 on R. 1:36-3 (2010). "Good cause" in this context includes "substantially different evidence, new controlling authority or a showing that the prior ruling was clearly erroneous." Ibid. We do not see a showing of good cause that would require us to reconsider the issues resolved by an earlier panel in this case.

Affirmed.

 

 

While this appeal was initiated by defendant, Barbara Sachau, her appeal has been dismissed, and hence only plaintiff's cross-appeal remains for disposition.

While the orders mentioned in this paragraph were not included in the appendix, we have considered them because they are part of the record in this case.

This was $100 more than the $79,315 the trial court previously found defendant had paid.

Plaintiff testified that in addition to social security payments, he received a little interest from a bank savings account.

(continued)

(continued)

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