CONSTANCE HORN v. MICHAEL HORN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5715-07T35715-07T3

A-0804-08T3

CONSTANCE HORN, n/k/a

CONSTANCE MANAILOVICH,

Plaintiff-Appellant/

Cross-Respondent,

v.

JAMES HORN,

Defendant-Respondent/

Cross-Appellant.

__________________

CONSTANCE HORN, n/k/a

CONSTANCE MANAILOVICH,

Plaintiff-Appellant,

v.

MICHAEL HORN,

Defendant-Respondent.

___________________________________

 

Argued: November 5, 2009 - Decided:

Before Judges Stern, Graves and J.N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-97-05.

James C. Jensen (Laufer Dalena Cadicina, Jensen & Boyd) argued the cause for appellant/cross-respondent (Icaza & Burgess, attorneys; Robert R. Cary, on the brief).

William J. Caldwell argued the cause for respondent/cross-appellant James Horn (Carter, Van Rensselaer and Caldwell, attorneys; Mr. Caldwell, on the brief).

Bernard T. Neuner argued the cause for respondent Michael Horn (Margolin & Neuner, attorneys).

PER CURIAM

Plaintiff former wife appeals from a "final judgment enforcing the note and mortgage" entered on June 13, 2008, in favor of defendant James Horn, the father of her former husband. She contends that the decision enforcing the note and mortgage is "inconsistent with the undisputed facts proven at the trial" (including that the mortgage was invalid for lack of consideration and was "forgiven"); that defendant James Horn is "equitably estopped from enforcing the note and the mortgage;" and that there was an ethical conflict affecting the validity of the mortgage because one attorney represented "all parties to the transaction."

Plaintiff also appeals from an order of September 19, 2008, denying her application for a plenary hearing on her application to set aside the property settlement agreement (PSA) between her and defendant Michael Horn. Constance and Michael entered into a PSA which included her receipt of the marital home subject to the mortgage to his father as mortgagee but with her right to contest it. When the mortgage was found enforceable (which is the subject of the first appeal), she moved to vacate the PSA claiming Michael did not fully disclose the facts about the mortgage at the time the PSA was entered. When her application to vacate was denied, the second appeal was filed. The appeals were consolidated.

James cross appeals from the denial of his application for counsel fees. We affirm the judgments in all respects.

I.

Constance Manailovich, formerly known as Constance Horn, was married to Michael Horn, the son of defendant James Horn. After they were married, Constance and Michael purchased a home with the help from a loan from James. This loan was secured by a note and mortgage held by James on the house.

James endured catastrophic injuries while at work and as a result he is significantly handicapped by cognitive and physical limitations. James received a large settlement in recompense for his injuries. After his accident, James was cared for by his mother, Grammie Grace Horn ("Grammie Grace"). Grammie Grace possessed a Power of Attorney from James.

Constance testified at trial that she and Michael received the funds necessary to buy a second house from James, and that the house was bought "primarily" to be a place in which James could live. Constance testified that this came about after a meeting between her, Michael, and Grammie Grace near the end of 1995. According to Constance, Grammie Grace agreed to give the funds to her and Michael without it being intended that they return the money, so "essentially . . . [it was] a gift," but Constance qualified her statement by saying the funds to purchase the house were "given to us not gifted." Constance further testified that Grammie Grace told her and Michael that the funds were an advance ("a front"), which would be deducted from Michael's inheritance at James's death.

Michael's testimony at trial contradicted Constance's account of the conversation with Grammie Grace. He testified that plaintiff and he "borrow[ed]" the money for the house from his father. James lent him and Constance the funds to buy the house, just as he had for their first home. Michael denied that the debt on the mortgage would be deducted from his inheritance and claimed that the only advantage Grammie Grace, acting for James, gave to the couple was a "cheaper interest rate" (five per cent) than they could have obtained otherwise.

In January of 1996, Constance and Michael purchased a house in Asbury, Warren County. Shortly after Constance and Michael bought the house, Grammie Grace became sick and was hospitalized for two months. After she left the hospital, she suffered a heart attack and passed away in April of 1996.

Joseph Steinhardt, a Warren County attorney, represented Constance and Michael in the purchase of the house in January 1996, and recorded the deed for them. Constance and Michael received the $100,000 necessary for the purchase from James's account in Phillipsburg National Bank and Trust ("PNBT"). PNBT is the trustee of James's investment account. Acting on behalf of the couple, Steinhardt received a $100,000 check from PNBT, acting as trustee for James, and disbursed it at closing.

No promissory note, mortgage or any other document was executed to record the payment of these funds at the time of the closing of the purchase of the Asbury house. However, Steinhardt testified that there was "supposed to be a mortgage," but that no note or mortgage was signed at the time of closing because the house needed extensive repairs and it was not clear how large the ultimate loan would be. He also "assume[d]" that part of the delay could be attributed to Grammie Grace's inability to handle her son's affairs during her illness. Constance and Michael were also selling their first home and needed approximately an additional $10,000 to pay off the mortgage held by James on that house, which was to be applied to the new mortgage. Steinhardt stated that it was June or July of 1996 before the total sum of the mortgage, $133,432.55, was determined.

After Grammie Grace died, two of her other sons, Robert and Charles, Michael's uncles, began to manage James's affairs under a power of attorney. According to plaintiff, after Grammie Grace's death, Robert visited Constance and Michael's home and requested that they execute a mortgage and note secured by the house to PNBT. Constance testified that Robert convinced her "at that time that it would be in our best interest" to make mortgage payments, which, with interest, "would then be applied back into" Michael's "inheritance account" which they would receive after James's death. Robert testified that he did not recall contacting Constance and Michael about the mortgage. Michael denied that any such conversation had taken place. He claimed that the note and mortgage were signed in Steinhardt's office.

Steinhardt prepared the mortgage note for $133,432.55, which Constance and Michael signed on July 3, 1996. Steinhardt subsequently recorded the mortgage. The mortgage and note was held by PNBT as a fiduciary for James Horn. The note which Constance and Michael signed stated that "[t]his Note can only be changed by an agreement in writing signed by both the Borrower(s) and the Lender."

The trial judge found that Steinhardt also represented "the interests of James Horn" while closing the purchase of the Asbury house and preparing the July 3, 1996 mortgage, though Steinhardt testified that he only considered the borrowers, Constance and Michael, as his clients for that transaction. Over the years, Steinhardt had also represented Robert Horn and James Horn.

Steinhardt testified that his normal practice, which he "always" told his clients, was that "a note was their personal obligation" and that if they did not pay the mortgage the bank could take the property back, or in this case James could. Though Steinhardt was sure he had told this to Constance and Michael and treated the matter as a normal mortgage transaction, he could not specifically recall telling this information to Constance and Michael because after his many years of executing similar transactions "[i]t's just been so many and so long." Steinhardt's only "specific recollection" about the purchase and mortgage of the Asbury house was that the "mortgage didn't go on record for some time after the closing." He did recall "that there was supposed to be a mortgage and I made a lot of phone calls to the bank saying I need to know how much money" should be placed on the mortgage. Steinhardt did acknowledge that it would have been possible for the mortgage to be executed even if the funds from James were a gift for "tax purposes . . . just to show where the money went," but he testified "that wasn't a factor here."

Constance and Michael made five or six payments on the mortgage following its execution in 1996 and early 1997, but never made any further payments. When first asked by her trial counsel why she and her husband had stopped making payments, Constance responded that Steinhardt "informed us that the will had been changed" and that the couple then decided not to make further payments as they "might possibly not see that money back."

Despite Constance and Michael's failure to make payments on the mortgage, neither PNBT and its successors nor James attempted to collect any mortgage payments until March 9, 2006, after Constance and Michael had divorced.

Constance and Michael also failed to pay property taxes on the home, and a tax foreclosure began on the house in 2002. However, after talking with Robert, James gave Constance and Michael $28,000 of his funds to "bail them out" and avert the tax foreclosure.

After the tax foreclosure was avoided, Constance and Michael negotiated with James regarding the mortgage on the Asbury house. Steinhardt represented James. Constance and Michael were represented by separate counsel, Jack Cornish, an attorney. On March 13, 2002, Steinhardt sent Cornish a letter, which read in relevant part that:

[James Horn] has investments at Vista Bank [the successor to PNBT] in the trust department. The trust department is holding a mortgage for [James]'s son Michael and the mortgage is in arrears. [James] was going to foreclose the same, but has dismissed the idea and has decided to refinance it personally to remove the old mortgage from Vista's trust department. He will then amend his Will and exclude Michael from it.

Michael will be calling requesting that you represent him and his wife in the above transaction, as I cannot represent both parties. . . . Please give me a call so that we can proceed with the above transaction.

On the bottom of that March 13, 2002 letter from Steinhardt to Cornish, there is a handwritten statement which reads "P.S. Per our discussion we should also have a written agreement from your client that they will receive nothing from [James's] estate and they release his estate from any. . ." The photocopy cuts off the remaining words in the sentence. However, no writing was introduced at trial memorializing such an agreement.

Steinhardt's letter indicated that the principal balance on the mortgage was then $132,761.71 and that the bank had paid $28,472.92 in property taxes. There was also outstanding $41,820 in interest and $2,680 in late charges.

Michael testified that he and Constance had a conversation with Robert around the same time in which the couple asked for "a little more time to get [their] act together" and start to make payments to avoid foreclosure. Robert agreed not to foreclose at that time. Although no payments were made thereafter, Michael denied that there was an arrangement by which the monies were not repaid in exchange for a deduction from his inheritance. In contrast, Constance testified that Robert, acting for James, agreed to forgive the mortgage, and "we wouldn't have to pay it back."

Robert testified as a witness for the defense. Robert initially denied that James's will was ever to be amended to exclude Michael from the inheritance. He stated that Kimberly Kingsland, Vice President and Trust Officer of UnitedTrust, the successor to PNBT, which was managing James's investment account, had suggested that the mortgage be transferred to James personally because, although no payments were being made on the mortgage, James was paying a service fee of approximately $1,200 a year to the bank to manage the mortgage. Robert admitted that there had been correspondence between attorneys about canceling the mortgage but that it never occurred.

Robert further explained that about the same time the bank assigned the mortgage directly to James in 2004, a procedure was adopted by which notices would be sent out each month noting the unpaid payments so that if James "happened to pass away the mortgage would be forgiven but what was owed on it would go back into the estate and go against Michael's inheritance." Robert insisted, however, that although the mortgage was transferred from James's investment account at the bank to James Horn personally, "[n]othing was ever changed to the mortgage."

The judge clarified Robert's testimony in the following colloquy:

THE COURT: All right. So what you're telling me is that it [the mortgage] wasn't forgiven, it wasn't that they didn't have to pay it back, what it was was if there was any money owed at the time of his [father's] death, that the amount of money would be deducted from his inheritance?

THE WITNESS: Correct.

THE COURT: Is that

THE WITNESS: Yes.

THE COURT: A true and accurate way of putting it?

THE WITNESS: Yes.

Regarding the alleged agreement that the mortgage would be paid from Michael's inheritance when James died, as noted in Steinhardt's March 2002 letter, Steinhardt testified that he did not think such an agreement was ever finalized because after Cornish was retained, "things kind of fell apart" and Steinhardt transferred the file to another attorney. The trial court was never provided with a copy of James's alleged new will.

On March 9, 2006, Robert J. Fox of Carter, Van Rensselaer, & Caldwell, which represented Robert Horn as "attorney-in-fact for James," demanded for the first time that Constance and Michael repay the mortgage plus interest. By that time the balance and accrued charges amounted to $230,000. When the trial judge asked why Robert had initiated a foreclosure action on the mortgage after the divorce, Robert stated that he had done so "[b]ecause when they got divorced, [Constance] got everything."

Steinhardt testified that on April 2, 2007, he wrote a letter to Robert Fox in which he wrote that the mortgage was not a gift and "[Constance]'s allegation that there was no consideration or that the debt was forgiven are without merit."

On May 28, 2008, the trial judge issued a written opinion that upheld the validity of the mortgage and its underlying note. The trial court, in its findings of fact, accepted the testimony of Steinhardt that there was not a preexisting consideration for the July 3, 1996 mortgage. The trial court further accepted Steinhardt's explanation, as "credible and truthful," that the delay for several months to close the mortgage was due to the borrowers' need for more funds in order to repair the house and because of the need to pay off their existing mortgage to James Horn on their first house which they were selling for a loss of approximately $10,000. The trial judge also accepted Steinhardt's testimony "that he knew of no gift or advance of Michael's inheritance" and that Steinhardt "unequivocally" stated the "parties never entered an agreement to forgive the mortgage." The trial court noted that this transaction was not arms-length because it was "between a father, son and daughter-in-law who had a prior history of borrowing monies for a home."

The trial court held that Constance Horn's testimony that she and Michael bought the Asbury house to care for James Horn was not "clear and convincing." Further, the trial court did not find Constance's "testimony to be clear and convincing when she stated that when signed the note and mortgage that these monies owed would be deducted from Michael's inheritance from his father."

Moreover, the trial court found that "there is no proof that James Horn gave up his right of foreclosure under the note and mortgage." Instead, the trial court found that James had a right to foreclose on the mortgage at anytime while he was alive, or that James Horn's estate had a right of "set-off" of any monies owed by Michael from the mortgage and note at the time of James's death.

Finally, the trial court also found that "neither James or Robert Horn ever represented to the plaintiff that they would not foreclose on the property during James's lifetime." The trial court acknowledged that "there were negotiations between the parties which may have resulted in the note or mortgage being forgiven or cancelled but that no deal was ever reached." Finally, the trial court found that the "evidence shows that the note and mortgage were not cancelled" and that "[n]either James or Robert Horn induced [Constance] Horn to take the house subject to the mortgage."

As a result of that determination, Constance subsequently moved to vacate the PSA and for a declaration that it was unenforceable.

Section VII of the PSA entitled "EQUITABLE DISTRIBUTION OF REAL AND PERSONAL PROPERTY," provides that

. . . Wife shall retain the marital home, subject to ["the" is typed and crossed out, "an" is hand written in] existing mortgage, ["if it is deemed valid" is written in] in the approximate amount of ["$203,000.00 is printed and crossed out, and "$133,482.55" is written in] plus any interest which has accrued. Wife shall either refinance the mortgage and remove Husband's name therefrom or institute proceedings to challenge the existing mortgage, within ["(1) year" crossed out, "10 months" handwritten in] of the execution of this Agreement. Upon the Husband's name being removed from the mortgage, or the mortgage being declared invalid, Husband shall execute a Deed to Wife, transferring to her all of his right title and interest in the home.

The agreement gave plaintiff ten months after execution of the agreement to either refinance, or to institute proceedings to challenge the mortgage on the house.

Constance argued that the PSA was premised on the lack of enforceability of the mortgage so that she would hold title free and clear of any debt. The judge denied the application without holding an evidentiary hearing. As Judge Coyle put it, plaintiff took a calculated "risk" in seeking to obtain the marital premises free and clear of all encumbrances, and in the absence of any fraud or misrepresentation she was bound by her bargain.

II.

Upon appellate review, a trial court's findings will be upheld wherever they are "supported by adequate, substantial and credible evidence" in the record, although the findings must not be "so wholly unsupportable as to result in a denial of justice." Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (internal quotation marks and citation omitted). This is so because an appellate court is not in as a good position to evaluate the evidence and the credibility of witnesses as the trial judge. Capozzoli v. Capozzoli, 1 N.J. 540, 543 (1949); see also State v. Locurto, 157 N.J. 463, 470-74 (1999).

"Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, an appellate court can reverse a Family Part judge's findings of fact or credibility "[o]nly when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark'" as to amount to "a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). See also Devaney v. L'Esperance, 195 N.J. 247, 259 (2008). That the critical factfinding concerned the validity of a mortgage does not change the rule. The issue related to the division and value of the marital property.

We find no basis for disturbing the trial judge's rulings on admissibility of the evidence based on the discretionary nature of the rulings. R. 2:11-3(e)(1)(A), (E). In any event, we conclude that the record as a whole contains sufficient evidence to sustain the findings of the trial judge as to the validity and enforceability of the mortgage.

We find it appropriate, however, to address plaintiff's claim that attorney Joseph Steinhardt's testimony should not have been admitted at trial because the basis of his testimony was information gained during the course of representing plaintiff and therefore his testimony at trial violated the attorney-client privilege and RPC 1.6(a) and RPC 1.8(b). RPC 1.6(a) provides that "[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation." RPC 1.8(b) provides that "[e]xcept as permitted or required by these rules, a lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client after full disclosure and consultation, gives informed consent."

An attorney, when called as a witness, must assert the attorney-client privilege on behalf of the client. In re Grand Jury Subpoena Issued to Galasso, 389 N.J. Super. 281, 297 (App. Div. 2006); N.J.R.E. 504(1). However, the privilege is waived if the holder has "without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone." N.J.R.E. 530. After extensive questioning by the judge and questioning by her attorney concerning her right to invoke the attorney-client privilege as to communications with Steinhardt, plaintiff was found to have "knowingly and freely" waived her privilege. Moreover, there is an implicit waiver of the attorney-client privilege "where the [client] has placed in issue a communication [with her counsel] which goes to the heart of the claim in controversy." Kinsella v. Kinsella, 150 N.J. 276, 300 (1997) (internal quotation marks and citation omitted). In any event, Steinhardt's testimony was never privileged in regard to Michael because he was the joint counsel for both the plaintiff and the defendant Michael Horn when the mortgage on the Asbury house was signed. "Where 2 or more persons have employed a lawyer to act for them in common, none of them can assert such [attorney-client] privilege as against the others as to communications with respect to that matter." N.J.R.E. 504(2)(c).

III.

Plaintiff argues that the note and mortgage on the Asbury home should be set aside because Steinhardt had a conflict of interest because he was representing both James Horn, the lender, and the borrowers, including plaintiff, in the transaction.

The New Jersey Supreme Court has set a "bright-line rule" which forbids an attorney from representing both sides of a "complex real estate transaction" even if both parties give their informed consent. Baldasarre v. Butler, 132 N.J. 278, 295-296 (1993). A complex real estate transaction in which dual representation is forbidden is one "where large sums of money are at stake, where contracts contain complex contingencies, or where options are numerous." Id. at 296. We shall assume that, notwithstanding the close family relationships involved at the time, Steinhardt violated that standard by representing both parties in the preparation and execution of the note and mortgage, but that does not require that the mortgage and note be rescinded, at least without repayment of the proceeds. See Baglini v. Lauletta, 338 N.J. Super. 282, 307-08 (App. Div.), certif. denied, 169 N.J. 607, certif. cross-pet. denied, 169 N.J. 607, certif. cross-pet. denied, 169 N.J. 608 (2001) (to preclude relief there must be an evidentiary showing that a client directed, advised, or consented to, or participated in, alleged improper conduct of attorney). There is no evidence in the record that James was not an equally innocent client of Steinhardt, and "[a] dual agent's wrongful conduct should not be attributed to one innocent principal over the other." Baldasarre, supra, 132 N.J. at 292; cf. In re Estate of Stockdale, 196 N.J. 275 (2008).

Plaintiff argues that James should be equitably estopped from enforcing the mortgage and note because Constance believed that when she first received the funds to buy the house the funds were an advance on her then husband's inheritance. She claims that this belief was confirmed when the house closed without a mortgage or note being recorded for several months, no payments were required by the mortgagee for almost ten years, and due to the 2002 agreement to change James's will so that the unpaid mortgage debt would be subtracted from Michael's inheritance.

The trial court rejected these arguments when he made the factual finding that "neither James or Robert Horn ever represented to the plaintiff that they would not foreclose on the property during James's lifetime." The trial court acknowledged "that there were negotiations between the parties which may have resulted in the note and mortgage being forgiven or cancelled," but found that "no deal was ever reached" and that "[t]he evidence shows that the note and mortgage were not cancelled." Since there is "adequate, substantial and credible evidence" supporting these factual findings of the trial judge, plaintiff's equitable estoppel claim must fail. See Rova Farms, supra, 65 N.J. at 483-84.

IV.

We also agree that the attack on the PSA was properly rejected. A PSA is favored by the "'strong public policy favoring stability of arrangements' in matrimonial matters." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999) (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). A PSA is accordingly "approached with a predisposition in favor" of its "validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). "Settlement agreements in matrimonial matters, being 'essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability' in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (alterations in the original) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980); Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970); Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960). However, a PSA is only upheld to the extent that the agreement is consensual and voluntary, Konzelman, supra, 158 N.J. at 194, and complies with "equitable precepts." Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (citations omitted).

Marital property settlements agreements can only be enforced if they are fair because "'contract principles have little place in the law of domestic relations.'" Conforti v. Guliadis, 128 N.J. 318, 323 (1992) (quoting Lepis, supra, 83 N.J. at 148). Nonetheless, a PSA is basically contractual in nature. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007), see Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div.), certif. denied, 142 N.J. 455 (1995). Therefore, the usual rule of contractual interpretation that a court must discern and implement the common intention of the parties applies to the interpretation of a PSA, Pacifico, supra, 190 N.J. at 266; see Tessmar v. Grosner, 23 N.J. 193, 201 (1957), and the terms of a contract must be enforced as written if those terms are unambiguous. County of Morris v. Fauver, 153 N.J. 80, 103 (1998) (citation omitted).

In contrast with alimony or support awards, a property agreement cannot be "adjusted after divorce to reflect unanticipated changes in the parties' circumstances," because to do so would undermine the finality of a PSA. Schwartzman v. Schwartzman, 248 N.J. Super. 73, 77 (App. Div.), certif. denied, 126 N.J. 341 (1991); see Pressler, Current N.J. Court Rules, comment 6.1 on R. 4:50-1 (2010) ("'changed circumstances' standard" does not apply for applications of relief from marital property settlement agreements) (citation omitted). "Subsequent events which should have been in contemplation of the parties as possible contingencies when they entered into the contract will not excuse performance" as long as the "contract has been fairly procured and its enforcement will work no injustice or hardship." Schiff v. Schiff, 116 N.J. Super. 546, 560-61 (App. Div. 1971), certif. denied, 60 N.J. 139 (1972). Once the parties of a marital property settlement have reached an agreement, the court may not draft an improved contract for them. Massar, supra, 279 N.J. Super. at 93.

While a property settlement agreement may be reformed if the negotiations leading up to the property settlement agreement suffered from unconscionability, fraud, overreaching, or because of "a common mistake, or mistake of one party accompanied by concealment of the other, [or] the agreement fails to express the real intent of the parties," Miller v. Miller, 160 N.J. 408, 419 (1999); see Addesa v. Addesa, 392 N.J. Super. 68, 75 (App. Div. 2007); Dworkin v. Dworkin, 217 N.J. Super. 518, 523 (1987), there is no basis for doing so in this case in light of the PSA and judge's fact finding at the trial. The above quoted Section VII of the PSA reflects a carefully negotiated and amended detailed provision regarding the marital premises as part of the overall agreement. There is no suggestion Michael hid anything from his wife or suggested the mortgage was not enforceable. To the contrary, the parties acknowledged its existence and provided alternatives to plaintiff in the PSA. As Judge Coyle stated:

In reading this the plaintiff bought herself a lawsuit. She bought herself a lawsuit. And unfortunately there is a certain element of risk. And when the matter was tried she lost. And that's what it looks like to me. But for whatever reason -- and I see nothing in the papers to indicate that there was fraud or any misrepresentation whatsoever.

There was an issue as to the mortgage. She then decided to take the -- the property subject to that mortgage and litigate it. And unfortunately she lost.

So I don't see any reason whatsoever to set aside the property settlement agreement. If she would have won obviously she would have been in for a good windfall, but she lost. And it was her choice to do that. I don't see any misrepresentation of any kind by any of the other parties.

In the absence of a finding of fraud or unconscionability, or even a showing that the mortgage obligation would otherwise render the entire agreement inequitable or unfair, we must agree with this assessment.

V.

Finally, we reject the cross-appeal denying the award of attorneys' fees to James under R. 5:3-5(c) because the judge found it was reasonable under the circumstances for the plaintiff to challenge the mortgage. There was no abuse of discretion in denying the application. See R. 5:3-5(c); Addesa, supra, 392 N.J. Super. at 78-80; Eaton v. Grau, 368 N.J. Super. 215, 225 (App. Div. 2004). The judge did indicate he would grant fees as provided in the mortgage and note, but not "under the matrimonial provision." See R. 4:42-9(a)(1), (4).

VI.

The judgment is affirmed in all respects.

 

The trial court found that "[t]here was no testimony that this payment carried any obligations of repayment," nor were there any documents "executed memorializing this transaction."

Although not admitted for its truth, on February 18, 2004, Kingsland wrote to the law firm representing James:

[I]n July 1996, prior to the inception of the account here at UnitedTrust, Phillipsburg National, as Agent for Investment Management Account of James Horn, gave a mortgage (using account assets) in the amount of $133,432.55 to James Horn's son and daughter-in-law, Michael and Constance Horn. Michael and Constance Horn, at some point, stopped making payments on the mortgage and a foreclosure action was started. A determination was then made, however, that rather than foreclose, the Mortgage would be "forgiven," and Michael and Constance would no longer be required to make payments on it. A provision was then made in James Horn's Will to reflect that this son and daughter-in-law would receive no other assets at James'[s] death, so that James'[s] other sons would not receive unequal treatment.

The Mortgage, however, was never formally cancelled and is still on the books. Additionally, it still being held as an asset of the Investment Management Account.

Is it feasible for UnitedTrust, as successor to Phillipsburg National, to assign the Mortgage to James Horn individually?

I am enclosing a copy of the Mortgage and look forward to hearing from you with any suggestions you may have.

The assignment was made by Robert and Charles by exercise of their powers of attorney.

The judge ruled that the entire controversy doctrine did not bar plaintiff's challenge to the mortgage because it was not resolved in the matrimonial action.

The judge thought that the Dead Man's Act, N.J.S.A. 2A:81-2 requires that Constance Horn's testimony regarding the alleged statement by Grammie Grace, that the funds to purchase the house would be a gift or an advance on Michael's inheritance, be proven by clear and convincing evidence. Similarly, the burden of proving an intervivos gift or promise to bequeath property is on the party who asserts the claim who must do so by "explicit and convincing" or "clear, cogent and convincing" evidence. In Re Dodge, 50 N.J. 192, 228 (1967); Young v. Sabol, 4 N.J. 309, 312 (1950).

Handwriting at the bottom of the page is not completely legible but appears to require plaintiff to sell the premises if she is not successful in declaring the mortgage invalid or cannot remove Michael as an obligor.

The PSA was signed by the attorneys as witnesses for their respective parties.

(continued)

(continued)

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A-5715-07T3

April 28, 2010