MARY ELIZABETH KING v. THOMAS R. KING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4099-10T2

MARY ELIZABETH KING,

Plaintiff-Respondent,

v.

THOMAS R. KING,

Defendant-Appellant.

________________________________________________________________

February 14, 2012

Argued January 11, 2012 - Decided

Before Judges Fuentes, Graves and Harris.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris County,

Docket No. FM-14-1458-09.

Appellant Thomas R. King argued the cause pro se.

Eric S. Wei (Demba Wei LLP) argued the cause for

appellant.

PER CURIAM

The parties were married in 1996, and their dual judgment of divorce (JOD) is dated November 9, 2010. Three children were born of the marriage. The oldest child is now thirteen years old, and the youngest child is five. Defendant Thomas King appeals from a post-judgment order dated April 4, 2011. For the reasons that follow, we affirm.

Prior to the entry of the JOD, the parties agreed they would share joint legal custody, and they resolved all custody and parenting time issues. In a Consent Judgment dated December 9, 2009, the parties further agreed "to work together to make decisions that are in the best interests of their children." The parties also entered into a matrimonial settlement agreement (Agreement), which was incorporated into the JOD, and the Agreement ratified the terms of the Consent Judgment.

With regard to the former marital home, paragraph thirteen of the Agreement states:

The parties agree that, for purposes of equitable distribution, the marital home will have a value of $680,000. The Wife will buy the Husband's share based upon this agreed upon value, after deducting the mortgage (approximately $625,000) encumbering the marital home. The Husband shall receive fifty percent (50%) of the equity which shall be transferred to the Husband as part of the overall equitable distribution payments set forth below in paragraph 14. The Wife shall have exclusive possession of the marital home and the Husband shall cooperate by signing a Deed transferring all of his right, title and interest in the marital home to the Wife. The Wife shall be responsible for refinancing the mortgage or she shall assume the mortgage so that the Husband has no further obligation or responsibility on the mortgage to the mortgagee, and she shall do so within ninety (90) days. If the Wife fails to remove the Husband's name from the mortgage and note within ninety (90) days, then the Husband shall have the option of buying out the Wife for the same value and in the same manner as described above, and if he chooses not to, then the home shall be listed for sale immediately with a mutually agreed upon broker so that the mortgage obligation can be paid and discharged and the Wife may then retain the entire proceeds from the sale.

Plaintiff was unable to refinance the mortgage within ninety days. After attempting unsuccessfully to negotiate an extension of time from defendant, she filed an ex parte order to show cause (OTSC) to extend the ninety-day deadline. In a supporting certification, plaintiff stated the bank had approved her mortgage loan application on December 22, 2010. Nonetheless, when she checked on the status of the loan, she was told that Patricia White, the mortgage loan officer at the bank, was on jury duty and the closing could not take place "until the trial [was] over and a verdict rendered."

On February 16, 2011, the court granted plaintiff's request for an OTSC and also granted plaintiff's request for a thirty-day extension of the ninety-day deadline for closing the mortgage. In a statement of reasons attached to the OTSC, the trial court found plaintiff had "been diligent" in her efforts to assume the mortgage, but the process was delayed through no fault of her own. The court found "that irreparable harm would result if Plaintiff and the minor children were forced to leave their residence simply because the bank handling Plaintiff's loan has been delayed in closing same." The OTSC was returnable on March 25, 2011.

Thereafter, on March 1, 2011, defendant filed a motion to enforce litigant's rights, which was scheduled for April 1, 2011. In a supporting certification, defendant requested an order directing plaintiff to cooperate in the sale of the former marital home to him and other relief, including reimbursement from plaintiff for her share of the children's horseback riding expenses and private school expenses.1 With regard to the children's horseback riding expenses, defendant claimed he had revoked "his offer for equestrian activities" as of January 31, 2011.

Defendant also filed opposition to the OTSC entered on February 16, 2011. In a letter dated March 9, 2010, defendant stated he was not given notice of plaintiff's application prior to the entry of the OTSC, and he claimed there was no reason for the entry of an ex parte order. Defendant also claimed that the order "should be rescinded" based upon "plaintiff's failure to gather the documents and complete the necessary forms in order to [close] the loan in a timely manner."

In a responding certification dated March 15, 2011, plaintiff stated that the refinancing issue was moot because the closing occurred on March 2, 2011. Plaintiff also certified as follows:

Defendant does not show why the Court should not allow me to retain the house. I have removed him from the mortgage and refinanced. Defendant says during the litigation he wanted to retain the house. I wanted to retain the house, too. He moved out in October, 2009. Nobody forced him to move out and, certainly, no one was trying to cause him emotional pain. It was difficult for us to live together and not good for the children to have us living together. . . . Defendant chose to move out and take whatever he wanted from the house. I do not deny that we have joint custody of the children but this has been their primary home, and they have lived here with me.

On April 4, 2011, the court considered defendant's motion to enforce litigant's rights and plaintiff's cross-motion. In her cross-motion, plaintiff sought reimbursement from defendant for the children's expenses and to compel defendant to pay fifty percent "of the children's future dance, music and equestrian extracurricular activities." The court set forth its findings and conclusions in a comprehensive statement of reasons, and the court's decision was memorialized in an order signed the same day.

The court's findings with respect to the former marital home included the following:

According to the Plaintiff, the bank could not meet the 90-day deadline but the refinance now has been accomplished. Defendant replies that Plaintiff cannot rely on relief requested by her in the Order to Show Cause as she withdrew same, and that he was entitled to buy out Plaintiff's interest in the former marital residence. On the face of the agreement, there was no reason for the Court not to grant Plaintiff's brief extension to accomplish the refinance, as there was no proof she intentionally delayed the refinance process or was responsible for the delay for other reasons. Defendant replies that Plaintiff was "hardly diligent" based on emails and other communications he received. The Court is not satisfied that Plaintiff was dilatory in her efforts to refinance. Further, she withdrew her application on the issue of refinancing as the issues raised therein were resolved with transfer of title to her (accomplished while the Order to Show Cause was pending). She claims title to the property is properly with her and that Defendant's requests relative to this property are moot. The Court agrees.

The court also provided the following explanation for requiring defendant to pay fifty percent "of the children's future expenses for their dance, equestrian and music extracurricular activities":

The parties have exchanged emails regarding the equestrian activities for the children. Defendant seeks reimbursement for Plaintiff's share of the equestrian activities and claims that share is $2,537.50. Plaintiff disagrees, noting that she is 40% responsible for these expenses for 2010 and specifically for the balance of 2010, she does not agree to contribute to expenses incurred prior to the date of the JOD. Defendant replies that he does not wish to pay for equestrian expenses related to Plaintiff's horse, but he provides no basis for his suspicion that the checks attached to Plaintiff's pleadings are for her personal expenses. He also suggests that he does not agree "to riding expenses at this time." From Plaintiff's proofs, it is clear that the children have engaged in equestrian activities for years. In Defendant's reply, he mentions further that he has the children join him at his country club where the children play golf and tennis. There is no suggestion that Defendant cannot afford to continue allowing the children to participate in equestrian activities, although he complains that prior to the divorce, the children's riding costs rose significantly. It would be unfair to the children for one parent to withhold his/her consent to activities that the children enjoyed prior to final hearing. Indeed, Defendant admits in his reply certification that he expects his income to be about $250,000 and that Plaintiff's income is about $200,000. Therefore, the parties will continue to share in the children's equestrian expenses as an approved extracurricular activity pending further Order.

On appeal, defendant presents the following arguments:

POINT I

THE COURT BELOW ERRED WHEN IT MADE CHANGES TO THE DECREE WITHOUT APPLYING THE PROCEDURES REQUIRED BY LEPIS V. LEPIS.

POINT II

THE COURT BELOW ERRED AS THE HOLDING ON PRIVATE SCHOOL EXPENSES IS AGAINST THE EVIDENCE PRESENTED.

POINT III

THE COURT BELOW ERRED BY NOT ENFORCING SPECIFIC PERFORMANCE OF THE DECREE ALLOWING DEFENDANT TO PURCHASE THE MARITAL PROPERTY.

POINT IV

THE COURT BELOW ERRED WHEN IT GRANTED REIMBURSEMENT FOR PLAINTIFF'S CROSS-MOTION FOR HORSEBACK RIDING, DANCE LESSONS, MUSIC LESSONS AND FUTURE [EXTRACURRICULAR] ACTIVITIES.

Based on our review of the record and the applicable law, we conclude that these arguments are clearly without merit. R. 2:11-3(e)(1)(E). We affirm with only the following comments.

The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We do not disturb the factual findings and legal conclusions of a trial judge unless "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

In the present matter, the record amply supports the trial court's findings and conclusions. See Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978) ("It is axiomatic that the court should seek to advance the best interests of the [children when their] parents are unable to agree on the course to be followed.").

Although not raised as an issue by the parties in this appeal, we would be remiss if we did not note that this matter began before the trial court as an ex parte OTSC. From the record before us, however, we discern no valid reasons justifying this extraordinary approach. Fundamental principles of due process dictate that defendant should have been given notice and the opportunity to be heard before the trial court decided to grant plaintiff the relief requested. As we have stated:

The entry of an order in the cause without notice to all parties is generally not proper, R. 1:5-1, even if certain parties are not directly affected, except for scheduling and administrative matters. Notice is an essential requirement of due process; the rules provide for consideration of ex parte matters or the entry of ex parte orders only in certain limited and emergent situations. However . . . a judge should not confer or meet with any party, or with counsel for any party, without all attorneys either consenting or having the opportunity to be present.

[Zukerman v. Piper Pools, Inc., 232 N.J. Super. 74, 83-84 (App. Div. 1989) (footnote omitted).]

Although the court's ultimate ruling here was correct, the court should not have proceeded without affording defendant appropriate notice and the opportunity to argue against the relief requested by plaintiff.

The order entered on April 4, 2011, is affirmed.

1 Pursuant to paragraph ten of the Agreement, as of January 1, 2011, the parties are to "equally share the cost of all mutually agreed upon school tuition, extra-curricular activities, sports, summer camp, school trips, and other extraordinary expenses on behalf of the children, until they are emancipated." However, "for the balance of 2010," defendant was to pay sixty percent of the expenses and plaintiff was to pay forty percent.