CENEIDA BAUTISTA v. SILVESTRE BAUTISTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0968-12T2

CENEIDA BAUTISTA, n/k/a

CENEIDA A. JIMENEZ,

Plaintiff-Appellant,

v.

SILVESTRE BAUTISTA,

Defendant-Respondent.

________________________________________________________________

October 30, 2013

Submitted October 16, 2013 - Decided

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-596-06.

Grissele Camacho, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Plaintiff Ceneida A. Jimenez appeals from the September 14, 2012 post-divorce order, issued without a plenary hearing, requiring her to vacate the marital home by the end of 2012 and awarding credits to defendant Silvestre Bautista for mortgage payments. We reverse and remand for reconsideration of the economic consequences to the parties after a plenary hearing.

The parties were married in December 1983 and divorced twenty-three years later. Their amended final judgment of divorce (JOD) reflects their agreement on all issues. The portions of the agreement pertinent to this dispute follows. Plaintiff received the marital home in West Orange, which was mortgaged in defendant's name only and had $183,000 in equity at that time. Plaintiff agreed to remove defendant's name from the mortgage "on or before July 1, 2009." She was required to forward to him each month's mortgage payment by the fifth of the month.

Plaintiff also received $200,000 in equitable distribution and limited alimony of $35,000 annually for five years beginning on May 1, 2007. Both parties agreed that the division of the properties they owned in the Dominican Republic was subject to the jurisdiction of the courts in that country.

On October 1, 2010, an enforcement order was entered providing an additional sixty days for plaintiff to refinance and remove defendant's name from the mortgage. If she did not do so, the property was to be listed for sale no later than December 1, 2010. Defendant was directed to pay the mortgage and subtract those payments from his alimony.

Almost two years later, on September 14, 2012, the order under appeal was entered, which directed plaintiff to vacate the home by December 31, 2012 if she was unable to sell the house by that date. Defendant was ordered to continue to pay the mortgage, with any payments made after the expiration of his alimony obligation to be reimbursed to him from the sale of the home.

Plaintiff represented that after the October 2010 order the home had been under contract for a direct sale with no brokers involved, but that the sale had fallen through in June 2011 because the buyers' financial situation had changed. She stated that she had lowered the price, but was unable to obtain a statement indicating the balance of the mortgage from defendant and therefore did not know how to price the home. She also certified that defendant had frustrated her ability to sell her interest in their property in the Dominican Republic, which limited her financial options.

Defendant finally provided the mortgage statement at oral argument for this motion on September 14, 2012, and, with plaintiff's consent, the judge ordered the price reduced to no more than $299,900. Plaintiff agreed to pay the mortgage, but wished to remain in the home pending sale. The judge ordered her to move so the home would remain vacant while on the market. The motion judge reasoned that perhaps the house would sell faster without plaintiff residing there. The judge acknowledged having no evidence that plaintiff was interfering with the sale of the property.

We should defer to fact findings of the trial court if they are supported by "'adequate, substantial, credible evidence.'" Parish v. Parish, 412 N.J. Super. 39, 47 (App. Div. 2010) (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citations omitted)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. "Minimally adequate fact finding requires a discussion that demonstrates that the court has heard and addressed the relevant facts and claims under the controlling legal standards." Gordon v. Rozenwald, 380 N.J. Super. 55, 76-77 (App. Div. 2005) (citations omitted). "A trial court's rulings in such matters are discretionary and not overturned unless the court abused its discretion, failed to consider controlling legal principles or made findings inconsistent with or unsupported by competent evidence." Id. at 76 (citations omitted).

The family court must make specific findings of fact for deference to attach to its decision. See Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2009) ("We ordinarily remand to the trial court to make findings of fact if the trial court failed to do so.") (relying on Barnett & Herenchak, Inc. v. State Dep't of Transp., 276 N.J. Super. 465, 473 (App. Div. 1994)). "Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980) (citations omitted). Here, the motion judge did not hold a hearing and indicated he did not know whether plaintiff intentionally stalled the sale of the home, or whether the house would sell sooner if kept vacant.

We understand defendant's interest in enforcing the parties' agreement so that he could continue with his life unhampered by the credit drain of a mortgage in his name for a home where he did not reside. Depending on the length of time needed to sell the house, responsibility for the payment of the mortgage for a vacant house may be severely disabling to plaintiff's finances. If the judge had found that plaintiff knowingly violated the divorce agreement or prior order, the payment of this mortgage without use of the house might be necessary to prevent further interference. However, this harsh economic penalty to plaintiff does not otherwise benefit defendant. We remand for a plenary hearing to determine if, in fact, such a monetary penalty is justified by the advantage of a vacant home to the prospect of a sale, or necessary to prevent interference by plaintiff with the sale.