DINESH NAIN v. ANITA NAIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5021-11T2

DINESH NAIN,

Plaintiff-Appellant,

v.

ANITA NAIN,

Defendant-Respondent.

________________________________

January 16, 2014

 

Submitted November 4, 2013 Decided

 

Before Judges Ashrafi and St. John.

 

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Monmouth

County, Docket No. FM-13-0555-07.

 

Keith, Winters & Wenning, attorneys for

appellant (Brian D. Winters, on the brief).

 

Gerald Poss, P.A., attorneys for respondent

(Harvey H. Rothman, on the brief).

PER CURIAM

Ex-husband and ex-wife appeal from different aspects of the Family Part's orders dated January 20 and May 10, 2012, which denied their motions for reconsideration of prior orders addressing their divorce judgment. The record is not clear enough for us to resolve the appeals in favor of one or the other party. We agree with both that the Family Part did not support its rulings with adequate findings and conclusions or other statements of reasons, as generally required by Rule 1:7-4(a). A remand is necessary to clarify the record and the Family Part's rulings.

We place most of the responsibility for the inadequate record on the parties they swamped the Family Part with a flood of repetitive and scattered motion requests without helpful evidential or legal support. The appendix we have been provided for the appeal is similarly arranged in a confusing manner, and both over- and under-inclusive. We have found it difficult to evaluate what was or was not presented to the Family Part on the many motions the parties filed. As best as we can, we discern the following relevant facts.

The parties were married in 1980 and had two children during the marriage. Only their daughter was still unemancipated when husband filed for divorce in 2006. The divorce proceedings were contentious, and were interrupted by criminal charges and a trial before a jury.

In March 2009, the parties finally negotiated and executed a property settlement agreement (PSA) with the aid of their attorneys, and they obtained a divorce judgment that incorporated the PSA. But the litigation did not cease. The parties returned to the court repeatedly, attempting to vary or clarify the terms of their divorce.

Relevant to these appeals, wife began the current round of litigation in June 2011 with a pro se motion to increase child support and alimony and to require husband to reimburse her for college and extraordinary expenses of their daughter. Husband responded with a pro se cross-motion to compel wife to pay half of the delinquent federal and State income tax indebtedness of the parties dating back to the 2004 tax year, when the parties were still living together. Subsequently, both parties retained counsel and filed repetitive motions for reconsideration following each order that the Family Part entered.

Most prominently, their appeals now focus upon a directive of the court that wife must pay husband $17,325 as her share of the 2004 tax delinquencies. She contends the court's order is unjust and contrary to the terms of the PSA, and she is not financially able to pay the sum ordered. Husband contends the court failed to provide him with a readily available means of collecting the debt from wife over time. The primary cause of this post-judgment dispute is an ambiguous and deficient PSA. The parties knew about the tax delinquencies long before the divorce, and the PSA should have addressed the debts explicitly.

The PSA required that husband pay wife monthly alimony of $1250 for eight years. In addition, it required that he pay weekly child support of $143, based on his stipulated income of $55,000 and wife's imputed income of $30,000. At the time of the divorce, the marital home was under contract for a "short sale," and the parties agreed to divide equally any deficits after the sale or, theoretically, any net proceeds. As it turned out, the short sale fell through and the home was eventually foreclosed upon.

The PSA did not expressly make reference to the 2004 income tax debts. Husband contends that federal and State income tax liens had been placed on the marital home and the parties expected to pay the debts with proceeds of the sale, but the PSA does not explicitly state that intention. Instead, paragraph 1 of the PSA, which pertains to sale of the marital home, includes the following provision:

The husband shall be responsible and hold wife harmless for all family and prior business debts that he was personally associated with, including any tax liens associated with the businesses, except for the Parrot Restaurant liens, which shall be paid from the sale of the marital home.

 

The PSA does not further describe the "business debts" or "tax liens." In fact, other than the unexplained reference to the Parrot Restaurant, the PSA nowhere describes "the businesses" with which husband or tax liens may have been associated. The only other reference in the PSA to existing debts of the parties is paragraph 12, which states: "Husband and Wife shall be responsible for all debts in their respective names. Husband shall be responsible for the MBNA debt which is in Husband's name."

Husband claimed that he had individually been compelled to pay the debts, and that wife's half share was $17,325.37. Wife argued that the issue of the husband's individual liability for the debts had previously been decided in her favor by another judge, but she did not provide a copy of a decision or earlier order to that effect.

At the motion hearing on August 12, 2011, the Family Part heard the parties' arguments and took testimony from both indicating that husband's income was then $90,000 and wife's income from disability insurance was $22,000. By order entered on the same date, the court granted in part and denied in part each party's motion. It increased child support to $170 per week and assigned to each party a percentage of responsibility for the daughter's "unusual" and college expenses in conformity with the PSA. The court also granted husband's motion to prohibit wife from representing herself as his wife and to cooperate in the replacement of her name with that of husband's current wife on the "display board" at the parties' temple. The court denied wife's motion to increase alimony and husband's motion to impose a one-half share of the tax debts on wife.

Through newly-retained counsel, husband filed his first motion for reconsideration. He requested several changes in the relief the court had granted or denied. In October 2011, wife was still unrepresented and appeared pro se for oral argument on the motion for reconsideration. Much that she said in the courtroom pertained to a variety of complaints about the divorce judgment and the husband's alleged falsehoods at the time the PSA was negotiated. She failed to address clearly husband's arguments regarding the tax debts.

One week later, the court entered an order dated October 14, 2011, by which it changed its August 12, 2011 decision on the tax debts and ordered wife to reimburse husband for half the total that husband had paid. Much of the court's short oral decision on October 14 pertained to other subjects and forms of relief requested in the motion for reconsideration. The court did not specifically address whether the tax debts came within the terms of paragraph 1 of the PSA that we previously quoted. Rather, the court's decision merely reiterated the argument of husband's attorney that the 2004 tax debts were "joint marital . . . obligations" and stated there was no "other fair way" to allocate responsibility for the debts and "the most equitable way based on . . . what [the judge] had read" was to designate wife as responsible for half. Neither the October 14, 2011 order nor the court's oral decision indicated in what manner wife was to reimburse $17,325.37 to husband, an amount that she undoubtedly could not pay in a lump sum.

Wife then retained counsel and sought reconsideration and rescission of the court's order. Wife alleged that the court had erred because the PSA designated the tax debts as business debts of husband and he agreed to hold her harmless from a claim on those debts. She also alleged that husband had never complied with prior court orders entitling her to relief and that he had misrepresented his income at the time of the PSA and divorce judgment and continued to provide false information about his current income and assets. She sought to conduct discovery of husband's current employment and financial affairs, including the records of companies owned by his family members that she alleged were paying him unreported cash although he was also collecting unemployment compensation. She sought a plenary hearing to prove her claims for increases in alimony, child support, and contribution to their daughter's expenses.

In January 2012, husband responded with his own motion for yet further reconsideration, this time alleging that wife was not complying with the court's prior orders, that she had not and would not reimburse him for the delinquent taxes, and that he should be permitted to offset all his past and future support obligations against her share of the income tax debts.

The Family Part heard argument and subsequently entered an order on January 20, 2012, by which it denied wife's motion in its entirety and granted husband's motion in part. The court found that wife was in violation of litigant's rights in several ways for failing to comply with the court's prior orders. Still, the court denied husband's request to offset wife's tax obligation against his financial obligations to her. The court's January 20, 2012 order did not include reasons for its numerous decretal paragraphs.

Again, both parties filed motions for reconsideration. By order dated May 10, 2012, the Family Part denied all further reconsideration, and these appeals followed.

As we have suggested, we are sympathetic to the Family Part's difficulties in sorting through the repetitive motions. The motions contained multiple subparts, repeated issues that were previously decided, initially were argued pro se with a lack of focus, and subsequently made arguments through counsel that should have been made earlier. When parties to a divorce litigate by dredging up every grievance, and then provide a cluttered record for the court to evaluate, the court can become distracted from the disputes that affect the parties most seriously. In this case, after the Family Part increased husband's child support obligation to account for the parties' current incomes, the primary issue was whether wife should be required to pay $17,325 in delinquent income taxes. The debts were incurred long before the parties negotiated and entered into a PSA, and disposition of the debts should have been but was not expressly addressed in the PSA.

On appeal, both parties make reasonable arguments for their opposing positions. Husband argues the debts were incurred jointly by the parties when they were living together and they both benefited from the marital income earned during the 2004 tax year. He contends that the PSA did not expressly indicate whose responsibility the debts were, instead relying on the sale of the marital home to satisfy the debts. He argues that half the tax obligations should be paid by wife and that the only practical and equitable way he might be reimbursed is to allow him to deduct the debt in installments from his alimony and other support obligations.

On the other hand, wife argues reasonably that the 2004 tax delinquencies were incurred as "business debts . . . personally associated with" husband and that the PSA expressly required that he hold her harmless from liability for such debts. She claims a Family Part judge previously ruled on the issue in her favor, but to our knowledge, she never presented evidence to the Family Part of that prior ruling.

Our standard of review requires that we defer to the Family Part's discretion in dividing marital assets and debts. See La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). However, the Family Part must exercise its discretion based on appropriate fact findings and legal conclusions, here most pertinently the scope and intent of the PSA with respect to the 2004 tax debts.

"New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies." J.B. v. W.B., 215 N.J. 305, 326 (2013) (quoting Konzelman v. Konzelman, 158 N.J. 185, 193 (1999)). Matrimonial settlement agreements are enforceable "to the extent that they are just and equitable." Lepis v. Lepis, 83 N.J. 139, 146 (1980) (quoting Schlemm v. Schlemm, 31 N.J. 557, 581-82 (1960)). As in other contexts involving contracts, a court must enforce a matrimonial agreement as the parties intended, so long as it is not inequitable to do so. See Pacifico v. Pacifico, 190 N.J. 258, 266 (2007); see also Sachau v. Sachau, 206 N.J. 1, 5 (2011) (divorce settlement agreements are contractual in nature and should be enforced as the parties intended, but "'[t]he law grants particular leniency to agreements made in the domestic arena' thus allowing 'judges greater discretion when interpreting such agreements.'") (quoting Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992)).

In this case, the Family Part should have reviewed the PSA language we previously quoted and determined the intention of the parties regarding the 2004 tax debts. Because the court did not make explicit findings based on the PSA, we cannot tell whether it reached any conclusion as to application of the PSA to the disputed debts. See Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (remand was necessary because Family Part's "[n]aked conclusions" were inadequately supported by findings of fact).

The parties' joint 2004 federal income tax return appears to show that taxes were owed but not paid in that year on business income. It also appears to show that the source of the business income was a construction company, not the Parrot Restaurant that is referenced in paragraph 1 of the PSA without further elaboration. We cannot determine with any confidence whether the tax debts that are the subject of these appeals were to be deducted from the proceeds of the sale of the marital home, or whether husband agreed to hold wife harmless with respect to those debts. Further evidence is needed.

If husband agreed to hold wife harmless, she should not have been ordered to reimburse him for half those debts. However, if it was not the parties' intention to include the 2004 tax debts in the hold harmless language of the PSA, and instead the parties intended to pay the tax debts jointly with the proceeds from the sale of the marital home but that intention was frustrated, then the court has authority under its equitable powers to devise a fair disposition of the debts. See Sachau, supra, 206 N.J. at 9 (Where "the judgment of divorce was silent regarding" the disputed issue, "it fell to the court to supply that omitted term.").

On remand, the Family Part should allow the parties to present evidence of the intended meaning of paragraph 1 of the PSA and then rule upon whether the 2004 tax debts are the husband's sole responsibility or not. After considering any additional written submissions on that issue, including whether the issue was decided earlier by another judge, the Family Part may exercise its discretion in ordering or dispensing with an evidentiary hearing. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976).

If the court confirms its ruling that the debt should be shared equally, it should also reconsider and give reasons for its ruling on husband's request that he be permitted to offset some of his support arrears and future payments against the wife's debt to him. Husband has now abandoned his original request to reduce his future child support payments as a form of collecting wife's tax obligation. However, he continues to claim a right to offset wife's tax debt against his support arrears and his obligations to pay alimony and expenses of the parties' daughter.

Child support is for the benefit of the child, not the parent. Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006); Ordukaya v. Brown, 357 N.J. Super. 231, 241 (App. Div. 2003). The obligations of the parties to each other should not interfere with support their daughter needs, including prospectively for college or other extraordinary expenses that husband must pay. But the court should consider whether it is equitable or not to require husband to pay the full amount of alimony required by the PSA, or to reimburse wife for the daughter's prior expenses that have already been paid, if wife in fact should reimburse him for the tax debts he paid individually.

We find no reason to disturb the Family Part's denial of wife's motion to re-open the divorce case and conduct new discovery, in particular, discovery of the business activities of companies that belong to husband's family members. Discovery of the other party's financial information is not automatically available for post-judgment motions. Leave of the court is required. Welch v. Welch, 401 N.J. Super. 438, 444 (Ch. Div. 2008); see R. 5:5-1(d).

Much of wife's effort to show misrepresentation by husband is related to her distress at seeing him driving a BMW automobile while he was purportedly unemployed. In turn, he claimed the BMW was purchased by his brother. At one point in her papers, wife acknowledged that she knew during the marriage that husband worked in family businesses on a cash basis while also collecting unemployment compensation. We have no way of deciding whether that allegation is true. If true, then the type of information that wife sought to learn through post-judgment discovery and to present in support of her motion to increase support payments was known to her at the time she and her attorney negotiated the support terms of the PSA.

Ultimately, wife did not present sufficient evidence tending to show that husband's income was greater than the $90,000 he admitted at the time of the August 12, 2011 motion hearing. As a result of husband's admission, the court increased his child support obligation and compelled him to pay his share of the daughter's college and other "unusual" expenses. Wife failed to present prima facie evidence to support her application to modify additional support terms of the PSA. See Lepis, supra, 83 N.J.at 157. The Family Part did not abuse its discretion in denying her motion for discovery and a plenary hearing. Id. at 157, 159.

Wife also challenges the Family Part's directive that she consent to the replacement of her name at the parties' temple with that of husband's current wife. She argued that the order was improper because she remains a trustee of the temple and husband is not seeking removal of her name from a "display board" but from a "stone," which we assume refers to an engraved stone displayed at the temple. Wife asserted that other stones contain the names of divorced members and any dispute about the stone bearing her name should be resolved by authorities of the temple rather than by the court.

On remand, the Family Part should inquire further about the specific relief husband seeks, and it should steer clear of attempting to rule upon a religious matter that affects the temple, which is not a party to this case, especially without full knowledge of the nature and purpose of the stone that is the subject of the dispute. See Alicea v. New Brunswick Theological Seminary, 128 N.J. 303 (1992) (courts should abstain from resolving disputes that would entangle them in the business of a religious institution); cf. Mayer-Kolker v. Kolker, 359 N.J. Super. 98, 100-05 (App. Div.) (court did not have sufficient evidence to interpret and resolve whether a party to a divorce was entitled to enforce a religious contract of marriage), certif. denied, 177 N.J. 495 (2003); Aflalo v. Aflalo, 295 N.J. Super. 527, 538, 544 (Ch. Div. 1996) (court would not compel husband to provide to wife the right to obtain a Jewish religious divorce).

Finally, the Family Part did not address husband's failure to provide proof of life insurance in accordance with the terms of the PSA. On remand the court should determine whether husband is complying with the PSA's requirement that he maintain life insurance for the benefit of wife and daughter.

A

ffirmed in part, and remanded in part for reconsideration or clarification of the Family Part's rulings as discussed in this opinion. We do not retain jurisdiction.