CHERYL HAGUE v. ROBERT JOHN HAGUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0094-10T1

CHERYL HAGUE,

Plaintiff-Appellant,

v.

ROBERT JOHN HAGUE,

Defendant-Respondent.

____________________________________________

May 17, 2011

Argued April 5, 2011 - Decided

Before Judges Wefing, Baxter, and Hayden.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-285-97.

William W. Voorhees, Jr., argued the cause for appellant.

David C. Bendush argued the cause for respondent.

PER CURIAM

Plaintiff Cheryl Hague appeals from an order entered without prejudice by the Family Part on July 23, 2010 in her post-judgment litigation against defendant Robert Hague concerning the validity of the couple's Property Settlement Agreement (PSA). Because the order was interlocutory, we dismiss this appeal.

Plaintiff and defendant were divorced on July 17, 1997 by a Dual Judgment of Divorce, which incorporated the PSA. In the PSA the defendant agreed to waive his interest in the marital home, subject to a mortgage representing a security interest of $34,850.00. The mortgage was due to be paid when the house was sold or within five years, whichever came first.

On August 16, 2002, plaintiff filed a motion to set aside the PSA. In her motion she claimed that defendant had hidden his substantial interests in certain business entities during the divorce proceedings.1 In response, defendant filed a cross motion asking that plaintiff s motion be denied and that the PSA be enforced, including payment of the mortgage lien.

On August 6, 2003, after three days of hearings, the judge issued an extensive opinion and order. The judge found that

[t]he plaintiff has established a prima facie case sufficient to warrant a plenary hearing to determine whether or not the defendant had an equitable interest during the marriage in the Mountain Valley Group, L.L.C. (and subsequently the Berkeley Group, L.L.C.), The Brick Oven Restaurant and the Circle K Ranch, L.L.C. which he failed to disclose during the divorce litigation, as a result of which the alimony and equitable distribution provisions of the Property Settlement Agreement must be reformed. The specific relief sought by the plaintiff in her Notice of Motion is reserved pending that determination.

As a result of her finding, the judge ordered a plenary hearing on the reformation of the PSA, which she stayed until after the conclusion of the related pending litigation. The judge also stayed the cross motion to enforce the PSA.

On June 10, 2004, defendant, who was living in Montana, filed a petition for bankruptcy. Defendant did not list plaintiff as a creditor in his bankruptcy proceedings although she was receiving monthly support payments pursuant to the PSA. Additionally, defendant listed his mortgage on the former marital home as an asset that was "uncollectible - 100% exempt." The bankruptcy court issued a discharge of bankruptcy to defendant in August 2004.

On May 14, 2010, defendant brought a motion to obtain an order for immediate payment of the mortgage lien. Additionally, he sought to have a $100 per day fine for the time plaintiff did not pay.

On July 2, 2010, plaintiff cross moved to prevent defendant from collecting the lien. In her cross motion, plaintiff requested that the motion judge remove the lien on the former marital home due to defendant listing the lien as uncollectible in the Montana bankruptcy proceeding. In the alternative, plaintiff requested that the judge appoint Montana bankruptcy counsel at defendant's expense to help her to determine her "rights and liabilities concerning the lien. Finally, she requested a plenary hearing to determine whether the PSA should be vacated entirely. The cross motion also noted that plaintiff wished to be awarded counsel fees and costs.

The motions were returnable before a judge other than the judge who presided over plaintiff's attempt to set aside the PSA. The motion judge denied both parties' motions without prejudice and stated, "I m not making any findings . . . I m certainly not going to enforce the contract that you re seeking to enforce in a piecemeal fashion." In explaining his reasons for not addressing the substance of the parties' motions, the motion judge declared, in pertinent part,

I m going to try to rule on this with some sense of rationality the best I can. I ll just grant myself the privilege of pointing out it's an equity court. I m trying to do equity which allows me some flexibility.

I m denying Mr. Hague s motion because . . . . There s so much about this matrimonial settlement agreement that . . . remains in question, and that s certainly pointed out by [the earlier judge] in her lengthy decision. . .

. . . there s still so much unknown about the viability of the matrimonial settlement agreement that I m not going to enforce one part of it and not at the same time consider the other parts of it.

The cross motion requests that I dissolve the husband s security interest in the matrimonial home, and remove the lien from the property. I m denying that motion. That also would have to wait til the whole all the issues including her interest in the Ri[c]a [properties].

And essentially the Ri[c]a litigation allows the entire property settlement agreement, which has guided these parties for - - for 13 years to be exploded and put into question. So I m not making a final ruling on whether there is or is not the husband s security interest in the property, and I m not removing that as a lien.

Further, . . . that in my view concludes the matter. I am not going to keep this matter open, scheduling discovery, scheduling a plenary hearing. If the parties want to continue litigating over this, they can do so and bring it back by motion. When all the facts are known that ll be self-managed.

. . . .

Plaintiff now appeals the July 23, 2010 Order. She makes the following contentions.

I. The trial court erred as a matter of law by not finding that Mr. Hague should be precluded by judicial estoppel from attempting to collect the uncollectible debt which is currently a lien upon the former marital premises.

II. The trial court erred by ruling that the lien in question is not precluded from enforcement because of the doctrine of laches.

III. The trial court erred by not ruling Mr. Hague is precluded from enforcing the lien in question by the doctrine of waiver.

IV. The trial court erred by ruling that, if indeed Mr. Hague remains obdurate in his insistence that he is entitled to recover this uncollectible debt, Ms. Hague was not entitled to the appointment of bankruptcy counsel in Montana at the expense of Mr. Hague to determine her rights and liabilities and to determine Mr. Hague s liabilities for filing what appears to be a perjurious bankruptcy petition.

V. Mrs. Hague should be awarded counsel fees.

Plaintiff appeals the motion judge's order as if it were a final order. Based upon the motion judge's unequivocal ruling that he was not deciding the motions but was denying them without prejudice, we disagree.

Simply put, the motion judge refused to rule on the motions of both parties on the mortgage lien as he found them dependent on the resolution of the earlier motions concerning the validity of the PSA, which had been pending since 2003. Pursuant to the order of the judge presiding over the earlier hearings, the issue of whether the PSA, including the mortgage lien, should be reformed or enforced has been stayed. In the order on appeal the trial judge did not rule for or against either party but merely instructed them to engage in discovery and, when ready, move for a plenary hearing on the issue.

Thus, the order on appeal here is not final as to the issue before the motion judge concerning the validity of the mortgage lien. Generally, to be appealable, an order must be final as to all parties and all issues. R. 2:2-3; Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974). An order that anticipates future proceedings, as here, is not final. Wein v. Morris, 388 N.J. Super. 640, 652 (App. Div.), aff d in part, rev d in part on other grounds, 194 N.J. 364 (2008). There is a strong public policy against piecemeal review. Vitanza v. James, 397 N.J. Super. 516, 518 (App. Div. 2008). Clearly, the order here was interlocutory and therefore not appealable as of right. No application was made to this court for leave to appeal. R. 2:2-3(b).

1 Specifically, plaintiff alleged that the defendant and his family were involved in multiple law suits about various properties they claimed were owned jointly with Ted Rica, known collectively as the Rica properties. Plaintiff obtained her information from the pleadings and discovery in the then pending law suits, known as the Rica litigation.