KENNETH FISCHER v. MARY FISCHER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5701-10T4

KENNETH FISCHER,

Plaintiff-Respondent,

v.

MARY FISCHER,

Defendant-Appellant.

________________________________________________________________

January 31, 2013

Argued July 11, 2012 - Decided

Before Judges Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1449-09.

Demetrios K. Stratis argued the cause for appellant (Ruta, Soulios & Stratis, LLP, attorneys; Mr. Stratis, on the brief).

Nicholas S. Brindisi argued the cause for respondent.

PER CURIAM

Defendant appeals from a post-judgment order in this matrimonial action that: (1) entered judgment in favor of plaintiff for $25,000 as compensation for personal property defendant failed to turn over to plaintiff and (2) awarded plaintiff $3,000 in counsel fees. We affirm in part and reverse in part.

The parties placed the terms of their settlement on the record on October 4, 2010, and such terms were incorporated by reference into the final judgment of divorce entered that day. They requested that the court permit them to submit an amended final judgment of divorce that "incorporat[ed] the terms of the settlement which had been placed on the record by counsel for the parties and affirmed under oath by the parties[.]"

At issue here is the disposition of personal property addressed in Paragraph 5 of the amended final judgment of divorce (the JOD), dated November 9, 2010, which states:

The parties have marked as Exhibits J-1 and J-2 a list of personal property to be transferred from the Defendant to the Plaintiff which property is located at the . .. Bennington Court and . .. Parsons Road properties. Plaintiff and Defendant will make arrangements between them for the Plaintiff to pick up the property. Said property will be gathered together by the Defendant and made available to the Plaintiff for pickup as soon as a mutually agreeable time and date is arranged. The parties recognize that the Plaintiff must rent the services of a truck and arrange assistance in loading the personal property identified on J-1 and J-2 into the truck. Each will cooperate with the other to accomplish the removal of Plaintiff's personal property.

Plaintiff filed a motion in April 2011, seeking, inter alia, an order holding defendant in contempt for violating litigant's rights by failing to comply with this provision of the JOD and compelling her to deliver the property to him at her cost. In the alternative, plaintiff asked the court to enter judgment in his favor for $25,000, which he claimed was the value of the retained property. In support of this motion, plaintiff submitted a certification that included the following assertions:

Plaintiff knew the items listed on J-1 and J-2 were in the house while he was in the home. After great effort, defendant agreed to the date of December 9, 2010 for plaintiff to retrieve his personal property. Plaintiff, who had relocated to Florida, rented a truck for the occasion. Defendant represented that she had boxed all of the identified items and placed them in the garage and driveway. When plaintiff arrived to pick up the items, it was "obvious" to him that items were missing, including his personal jewelry, his mother's jewelry, his collection of Hess trucks, his father's train set, his father 8mm family movies, and other items. He contacted his attorney who, in turn, called defendant's attorney and left word that plaintiff would return to the house the next day to pick up the missing property. When he returned the next day, defendant refused to answer the door.

Plaintiff's attorney wrote a letter to defendant's attorney, dated December 13, 2010, regarding the failure to turn over the personal property. He followed up with a letter dated December 29, 2010, in which he itemized the missing items and asked that defendant ship them to plaintiff in Florida. There was no response to this letter.

Defendant's attorney wrote to plaintiff's attorney by letter dated February 2, 2011, advising that defendant had made a good faith effort to locate the items but could not find all of the property and further, that defendant contended that plaintiff was mistaken about the existence of the property. Plaintiff maintained he was not mistaken and noted that the list of property had been marked and read aloud in court when defendant agreed he could pick it up.

In his certification, plaintiff described the items, some of which he described as "irreplaceable," such as a handmade Christmas stocking, his mother's rings and his family's home movies. As to other property, which he described in detail, plaintiff checked the sale values for new and used similar items and provided the following values:

120 CDs $1800

20" flat screen television $330

Personal jewelry $4500

Drawer safe $150

Missing remote controls $160

Binoculars $175

Harley-Davidson memorabilia $500

Tools $200

Hess truck collection $1500

The total value plaintiff attributed to these enumerated items was $9315. He added that this value did not include the other items which he described as irreplaceable and priceless to him.

Defendant submitted a certification in opposition to the motion. She stated she had "conducted a good faith and thorough effort to locate the items on his list" and had given plaintiff "as much of the personal belongings as [she] was able to find." She asserted she had "done exactly what the Judgment states." She stated that, as to the missing items, "[p]laintiff is simply mistaken as to their existence in the home or he has them and does not realize this." Defendant also submitted certifications from relatives attesting that they had assisted her in looking for items on the list to no avail.

In a written decision, the motion judge found no "valid basis" for defendant's failure to comply with the agreement to return the items of personal property listed on the joint exhibits and marked into evidence on the date of the parties' divorce. The judge noted that, aside from the limited exceptions noted on the lists, the joint exhibits constituted an admission by defendant that "said items were in her possession in the former marital home[.]" The judge rejected defendant's claim that she had engaged in a thorough search for the items and the purported corroboration by family members, observing that defendant had ample opportunity to hide the items before any search. The judge found no "reasonable alternative" other than the relief requested by plaintiff "to try to coerce" defendant's compliance with the terms of the settlement. The judge stated further,

Because of the apparent willfulness of the defendant's violation of litigant's rights and her contempt of court, counsel fees are awarded to the plaintiff[] in connection with this motion.

The order adjudicated defendant in violation of litigant's rights for her failure to comply with the terms of the JOD. Judgment was entered in plaintiff's favor for

$25,000.00 representing compensation for damages suffered by the Plaintiff as a result of the failure to turnover the personal property. Said judgment may be satisfied via the complete turnover to the Plaintiff by the Defendant, at her expense, of the items of personal property in question.

During the course of his written opinion, the judge stated, "Barring a change of heart by the defendant, she will remain saddled wit[h] the judgment entered herein."

In this appeal, defendant argues that the court erred in failing to hold a plenary hearing because of the conflict in the certifications submitted to the court which, she contends, presented a genuine issue of material fact. She argues that there was a factual issue "relating to the intent of the parties and the return of personal belongings." She contends that the agreement should be considered "in light of what is fair and equitable." To this end, she refers to her certification in which she stated that she never expected the list to serve as an "absolute" list of items to be returned but rather as an identification of the items "which implicitly [she] would in good faith endeavor to find." She maintains that her good faith efforts discharged her responsibility under the agreement and that, at a minimum, the court should have taken testimony to evaluate the credibility of her statements. Finally, defendant argues that the court's findings of contempt and award of counsel fees were not warranted because she had not acted in bad faith.1

"An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a demonstration of fraud or other compelling circumstances, should honor and enforce as it does other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div.) (internal quotation marks omitted), certif. denied, 94 N.J. 600 (1983). "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) (alteration in original) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)).

We have not been provided with a transcript of the October 4, 2010 proceeding at which the terms of the parties' settlement were placed upon the record. Yet, the judgments entered reflect that the parties were questioned about their agreement to the terms and that the list of personal property recorded on J-1 and J-2 were specifically reviewed in court. Defendant does not deny that she agreed to the terms or that the specific items now in contention were identified at that time. Nonetheless, she asks the court to interpret the agreement in a fashion that is contrary to its specific terms and consistent with an interpretation she now advances that she apparently held in secret before the motion was filed. We decline to do so.

The settlement unambiguously reflected the parties' agreement that specified items of personalty would be turned over to plaintiff. Significantly, the oral agreement was ratified by a written statement of the agreement that was incorporated in the JOD one month after the terms were placed on the record. If, as defendant now contends, she was under the impression that she was only required to make a good faith effort to try to find the specified items, she had an entire month to determine whether any of the items she agreed to return were not in the former marital home and to advise plaintiff of that fact. The ratification of the agreement to turn over items at a time when defendant knew or should have known whether the items were available for return, coupled with defendant's recalcitrance in responding to plaintiff's attempts to secure the items in accordance with the agreement, provide sufficient evidence to support the conclusion that she acted willfully in failing to comply with the term of the agreement. Moreover, defendant's belated protest and alternative interpretation of the plain language of the agreement did not create a genuine issue of fact that required a plenary hearing. We are satisfied that there was sufficient evidence that defendant acted in violation of litigant's rights and discern no justification for relieving her of the obligation she voluntarily assumed in the settlement of this divorce.

However, the proof submitted by plaintiff fails to support a judgment in the amount of $25,000 as compensatory damages. Although he did provide estimated values for a number of items, his cumulative estimate for those items was less than half of the amount of the judgment entered. Therefore, a remand is necessary to ascertain the value of the items on J-1 and J-2 that were not returned to plaintiff. In the event the parties cannot agree upon the value of such items, a plenary hearing will be necessary. We emphasize, however, that the scope of the hearing should be limited to the value of the items on the lists that were not returned.2

Finally, we are satisfied the court did not err in the award of counsel fees to plaintiff. "An allowance for counsel fees is permitted to any party accorded relief following the filing of a motion in aid of litigant's rights, R. 1:10-3, or to any party in a divorce action, R. 5:3-5(c), subject to the provisions of Rule 4:42-9." Barr v. Barr, 418 N.J. Super. 18, 46 (App. Div. 2011). "The assessment of counsel fees is discretionary, and will not be reversed except upon a showing of an abuse of discretion." Ibid. (citing Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444, (2001)).

Here, plaintiff sought to resolve defendant's failure to comply with a provision of their agreement informally, through correspondence between the attorneys. There was no response from defendant for approximately two months. Plaintiff resorted to filing a motion to enforce his rights under the settlement after defendant's tardy response offered no means for him to obtain property she had promised to return. His counsel submitted an affidavit of services, in compliance with R. 4:42-9(b), seeking an award of $3792. Under the circumstances of the case, a counsel fee award of $3000 did not constitute an abuse of discretion.

We affirm the award of counsel fees and those portions of the order that found defendant in violation of litigant's rights and liable to plaintiff for the value of the personal property she failed to turnover to him. We remand for a determination of the value of the items defendant failed to return to plaintiff.

1 We do not address the issue raised in defendant's reply brief that the motion judge erred in failing to entertain oral argument, as a new issue cannot be raised in a reply brief. Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 528 n.5 (App. Div. 2009).

2 Plaintiff offered no values for items that he described as irreplaceable, including items of jewelry that presumably have pecuniary worth beyond sentimental value, which may be considered in determining their value.