LINDA COLGAN v. PATRICK COLGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6089-07T3

LINDA COLGAN,

Plaintiff-Respondent/

Cross-Appellant,

v.

PATRICK COLGAN,

Defendant-Appellant/

Cross-Respondent.

_________________________________________________________

 

Submitted November 12, 2009 - Decided

Before Judges Graves and Newman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-2574-02.

Steven H. Schefers, attorney for appellant/cross-respondent.

Barry S. Guaglardi, attorney for respondent/cross-appellant (Arturi, D'Argenio, Guaglardi & Meliti, LLP, attorneys; Jason S. Nunnermacker, on the brief).

PER CURIAM

In this post-judgment matrimonial matter, defendant Patrick Colgan appeals from an order dated July 21, 2008, valuing the former marital residence (the home) at $750,000, and an order entered on July 31, 2008, requiring him to pay plaintiff: (1) $68,316.52 for pension arrears; (2) $10,684.84 for repairs to the home; (3) $13,172.45 from the proceeds of sale of property in Pennsylvania; (4) $487.50 for one-half of the cost for an appraisal of the home; and (5) $5274 for plaintiff's counsel fees. Plaintiff Linda Colgan cross-appeals from two parts of the order dated July 31, 2008, that denied her request (1) for payment of $29,936.98 to reimburse her for their daughter's college costs, and (2) for payment of $20,000 to replace an allegedly unauthorized withdrawal from a custodial account. We affirm the order dated July 21, 2008, and the award of counsel fees in the order dated July 31, 2008. However, we reverse the other rulings that have been challenged on appeal and remand for a plenary hearing.

The parties were married in 1971 and divorced in 2003. One child was born of the marriage, a daughter, who is now twenty-three years old. An amended judgment of divorce entered on October 30, 2003, incorporated a property settlement agreement (PSA) dated September 15, 2003. The PSA permitted plaintiff to remain in the home for three years, at which time the parties would "discuss and decide" whether the home would be listed for sale. The parties further agreed that when the home was sold, they would equally divide the net proceeds of sale.

With respect to major repairs and maintenance of the home pending its sale and the distribution of the net proceeds of sale, paragraphs 3.1 (G) and 3.1 (H) of the PSA provide as follows:

(G) The Husband and Wife shall be equally responsible for any major repairs and/or maintenance performed on the residence or to the property, not to include merely cosmetic, decoration, nor remodeling expenses. Major repairs and/or maintenance shall be defined as structural repairs, roof repairs or replacement, or any repair, replacement or necessary maintenance to the home or property in the amount of $750 or more. The parties shall share the cost equally at the time same is incurred. In the event one party does not advance or pay his/her share at the time, the party who incurs the expense shall receive reimbursement from the other's share of the net closing proceeds at the time of sale. The repairs or other work shall not be contracted for or performed without prior consent except in the case of emergency. Consent shall not be unreasonably withheld by either party.

(H) At the time the marital residence is sold, the parties shall equally divide the net proceeds of sale, after ordinary closing costs. The distribution of monies at the closing shall also include any payment of credits due from one party to the other as a result of this provision, any other provision or default in required payments set forth in this Agreement, which shall be reimbursed by the party owing said monies to the other party at the time of closing of sale, from the defaulting party's share of the proceeds of sale.

The PSA also required the parties to maintain three custodial accounts, which were in defendant's name, and various United States Savings Bonds in the face amount of $33,000, which were in joint names, for their daughter's "post-high school education expenses, and payment of income taxes on the income from the accounts." Additionally, the parties agreed that if the custodial accounts and bonds were "not sufficient to cover all of [their daughter's] post-high school college expenses, the parties shall be equally responsible for any excess expenses over and above the monies when exhausted."

On May 30, 2007, the court ordered the parties to cooperate in listing the home "for sale or buyout by plaintiff." Thereafter, plaintiff filed a motion seeking, among other things, to compel defendant to transfer his interest in the home to her "in exchange for the payment of his half interest less a 6% brokerage fee and the $147,907.89 he owes to me."

On July 11, 2008, the court entered an order allowing plaintiff to purchase the home from defendant. The same order required the parties to place the proceeds from the sale in escrow and to return to court on July 25, 2008, to address plaintiff's claim that she was entitled to receive a portion of defendant's share of the proceeds of sale because defendant had failed to comply with the terms of the PSA. Prior to the continuation date, the court entered an order on July 21, 2008, that valued the home at its "most recent appraisal value of $750,000."

Following oral argument on July 25, 2008, the court denied plaintiff's application for payment of $29,936.98 to reimburse her for college costs and expenses and denied her request for payment of $20,000 to replace funds that defendant had withdrawn from the custodial accounts. But defendant was ordered to pay plaintiff the sum of $97,935.31 from his share of the net proceeds of sale. As previously noted, this figure included: $68,316.52 for pension arrears; $10,684.84 for defendant's share of repairs to the home; $13,172.45 for plaintiff's share from the sale of property in Pennsylvania; $487.50 for defendant's share of appraisal costs for the home; and $5274 for counsel fees awarded to plaintiff.

Defendant argues on appeal, as he did below, that a plenary hearing was needed to resolve disputed issues. For example, plaintiff claimed she paid $21,369.63 for emergent and necessary repairs to the home, and the court ordered defendant to pay plaintiff $10,684.84 as his share of the repairs. However, in his certification in opposition to plaintiff's motion, defendant claimed that none of the alleged repairs were emergent, he was never "consulted or advised, or given any notice of many of the alleged repairs," and most of plaintiff's expenditures were for "cosmetic, decoration, [or] remodeling expenses," which are not reimbursable under the PSA.

Defendant also contends the court erred in accepting plaintiff's pension arrears figure because plaintiff failed to give him credit for payments he made to reduce the arrearages; the Pennsylvania property was exempt from equitable distribution; and he should not be required to share the cost of appraisal fees because he paid for a comparative market analysis. Similarly, on her cross-appeal, plaintiff contends the court erred by relying upon a report prepared by defendant's accountant, David Colavito, CPA, which was received by plaintiff only one day before oral argument. Plaintiff argues she "was entitled to a hearing and to cross-examine Colavito" regarding his conclusions. We agree. Plaintiff also claims defendant "squandered" $20,000 when he withdrew the sum from the custodial accounts to fund cosmetic surgery for the parties' daughter.

While we ordinarily defer to the factual findings of a Family Part judge, those findings are only "binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Here, our review of the record compels us to conclude that the documentary evidence presented to the motion judge was conflicting and therefore deserving of resolution at a plenary hearing.

Rather than address each of the disputed issues raised by the parties, we approach this matter from the long line of cases holding that a plenary hearing is required when material facts are in dispute. See, e.g., Lepis v. Lepis, 83 N.J. 139, 159 (1980); Innes v. Innes, 117 N.J. 496 (1990); Accardi v. Accardi, 369 N.J. Super. 75 (App. Div. 2004). Although a plenary hearing is not required to resolve every factual dispute arising in the context of a post-judgment matrimonial proceeding, "we have repeatedly emphasized that trial judges cannot resolve material factual disputes upon conflicting affidavits and certifications." Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995). See also Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982) ("[I]f the proper disposition of a matrimonial dispute requires a plenary hearing, the dispute is by definition not subject to disposition on the papers, with or without oral argument."), rev'd on other grounds, State v. Fusco, 93 N.J. 578 (1983); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968) (finding abuse of discretion and remanding for plenary hearing where the court exclusively relied upon affidavits that demonstrated a genuine issue as to material facts). We are thus constrained to remand the matter for a plenary hearing, which shall take place after the parties are afforded a reasonable opportunity for discovery.

However, we see no basis to disturb the trial court's July 21, 2008 ruling on the value of the home. The court relied on an appraisal dated March 17, 2008, which was more current and thorough than the comparative market analysis dated September 10, 2007. We also affirm the award of counsel fees in the order of July 31, 2008. A trial court has broad discretion in such matters. R. 4:42-9(a)(1); R. 5:3-5(c); Williams v. Williams, 59 N.J. 229, 233 (1971). In this case, the court concluded that an award of counsel fees was appropriate based upon defendant's "lack of good faith in paying his debts." Because the record supports that determination, we find no abuse of discretion by the court and we affirm the counsel fee award.

 
Affirmed in part, reversed in part, and remanded for a plenary hearing. We do not retain jurisdiction.

(continued)

(continued)

8

A-6089-07T3

April 7, 2010